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CHAPTER I.: CASES ENUMERATED. - 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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In regard to evidence, admission, non-exclusion (it has already been shown,) is the general rule. Evidence is the basis of justice: exclude evidence, you exclude justice.
The propriety of the general rule being so conspicuous—whatever be proposed in the character of an exception, the onas probendi, in respect of the propriety of it, lies upon the proposer of the exception—upon the exclusionist. In the last proceding Book, this task has been performed.
If, as above supposed, in the account stated in the proceding book, the entire list of the cases in which exclusion of evidence can be reconcilable to the ends of justice, is included; in all other cases in and for which it ever has been or can be proposed, it will be improper.
Having done with the cases in which it may be proper, the examination of the cases in which it cannot be proper will occupy the remaining part of this Book.
In technical jargon, the question as between admission, and non-admission, admission and exclusion, is clothed in different language. For admission, competency is the word—for exclusion, incompetency. Not only so, but incompetency finds another synonym, or at least a substitute, such as would not easily have been suspected; and this is credibility. An objection is made to the admission of the witness: a question is to be argued:—The question is now as between competency and credibility; whether the objection goes to the competency of the witness, or only to his credibility:—If, being considered as applying itself to his competency, the objection is deemed well-grounded, exclusion is the consequence: if, as levelled at the same mark, the objection is considered as ill-grounded, as insufficient, admission is the consequence; the witness is to be heard, as if no objection had been adduced.
Objections to the competency being objections the effect of which is to operate the exclusion of the witness altogether; and objections to his credit having no such effect; it might seem that the latter class of objections have no effect at all but that is not the case. The objection itself, being the allegation of a matter of fact, must be made good by evidence. If an objection is not good as an objection either to competency or to credibility, evidence in proof of the objection is not admitted to be produced. If it be allowed to be good as an objection to competency, the objection is allowed to he produced, and the witness not. If it be good as to credibility, but not as to competency, the witness, and the evidence of the objection to him, are allowed to be produced together.
Those who support the evidence against an objection to its competency, have seldom any unwillingness to have the same objection received in the character of an objection to credibility. Why? Because in this case the objection frequently amounts exactly to nothing at all. How so? Because it is so perfectly frivolous, that, in the scales of common sense (the false scales and weights of common law being put out of the way,) it would not weigh against the evidence to the value of a feather. The objection being good, is it good as against competency? the man is not so much as heard. Does it apply to credibility? he is not the less believed.
In effect, the difference amounts to diametrical opposition: in language, it is presented as but a sort of a hair-breadth difference; so minute, so microscopical, that by a high-seated eye it has happened to it to be over-looked. Like the difference between purport and tenor, it was that sort of difference to which a lawyer (if, with the reputation of a great orator, seated on a high and commanding station—in a word, a Mansfield) might, without shame, confess himself to have been scarcely sensible. In sound, the difference is like the famous one between tweedle-dum and tweedle-dee: nor, in effect, is there any greater difference than between justice and injustice—a difference which, to a learned eye, is too minute to have any claim to notice.
In practice, they had been confounded: so happily confounded, that, when a statute had required that a witness or witnesses should be credible, it was a matter of doubt whether credibility was or was not the same as competency. Instead of talking of credibility, speak of inadmissibility, non-admission, or exclusion; instead of competency, speak of admissibility, admission, and non-exclusion; you could then he understood without difficulty: the difficulty would then be in contriving how to misunderstand you. But, well suited as such clearness would have been to the purposes of common sense and common honesty, it would have been proportionably ill suited to the purposes of common law. The absurdity of the arrangement was in some measure hidden from view, by the cloud which hung over the language. Prevented from knowing so much as what it was that was done, non-lawyers were the more effectually prevented from seeing into the irrationality and mischievousness of what was done: and, upon this part of the ground as upon every other, the rubbish thrown up by the lawyers, while working and fighting in the dark, contributed its part to thicken the entrenchment which defends the garrison of the old castle of chicane.
Deception, and vexation, have already been mentioned as the two inconveniences, in the apprehension of which (in so far as any reason, or so much as the slightest colour of a reason, has ever been assigned or glanced at) the exclusionary system, in what cases soever it has been applied, has had its root.
Exclusions grounded on the consideration of vexation, form the matter of the next succeeding Part.
The present Part is appropriated to the consideration of those examples of exclusion, in which the fear of deception has been the ground, real or ostensible.
Incorrectness, and incompleteness. In these two expressions may be included all the properties, by means of which it can happen to the testimony of a witness to produce deception in the bosom of the judge.
If, in respect of either or both these qualities, there be any failure on the part of the witness, the root or cause of it will be to be found either in the will, or in the understanding; in the volitional, or the intellectual, branch of his mental frame. With relation to the result here in question, the state of those faculties respectively may be said to be an unfit one.
When, on the part of the testimony, incorrectness or incompleteness in any degree has its source in an unfit state of the will, interest, sinister interest is the cause of it: when in an unfit state of the understanding, imbecility.
Our business, at present, is to bring to view, not so much what ought to have been, as what has been, done and thought.
Topics different in appearance, though in effect coincident, have been, in the existing systems, substituted or added to the above. Qualities or acts considered as blemishes upon the moral character of the proposed witness, have, in a variety of instances, been considered as grounds of exclusion. For the designation of all these, one word, improbity, may on occasion serve.
But improbity, on what score does it present itself, in reality or in appearance, as constituting a proper ground of exclusion? and what relation, if any, does improbity bear to interest?
One answer will serve for both these questions:—
Interest, when acting in such a direction and with such effect as to give birth to falsehood, may be termed sinister interest. The effect of improbity is to render a man, in proportion to the degree of it, more and more apt to be led into falsehood by the force of sinister interest.
Thus it is that improbity, considered as a ground of exclusion, coincides with, and is included in, the ground expressed by the word interest. Be it lying, be it what it will, no man does anything wrong, anymore than right, without interest, without a motive. Suppose everything capable of acting in the character of a motive in a mendacity-prompting direction, out of the question, a man of the most profligate character will be no more likely to deliver false testimony, than an average man taken at large.
Under the head of improbity may be included, to the present purpose, that of religion. Improbity has been generally ascribed to a man on the supposition of his having no religion, or having a bad one. Religion has, accordingly, furnished pretences for refusing to hear evidence: with what reason, will be seen in its place. He who is considered as having no religion, no God, is termed an atbeist; he whose religion is bad, whose God is considered as a bad one, whose notions concerning God are considered as bad notions, has been termed a cacotheist. Subordinate to the head religion, atheism and cacotheism may, accordingly, constitute two distinguishable heads.
Subordinate, in like manner, to the more extensive head of imbecility, we shall find three particular heads: infancy, dotage or superannuation, and insanity (including casual mental debility.)
By reason of infancy, and to the extent of the age denoted by that word, every man is kept in a state of relative imbecility. In the course of his life, every man is subject to have his intellectual faculties more or less disturbed and weakened by mental debility (whether caused by bodily debility or not;) and, towards the close of it, by dotage.
Putting together these several articles, we have eight general heads, under which the circumstances that have been employed as grounds or pretences for putting exclusion upon evidence may be ranked: viz.—
In the former set of cases which have just been under our review, we have seen but little work, in the way of exclusion, for the providence of the legislator; and of that little, the greater part left everywhere undone. In the set of cases now coming under review, we shall see nothing at all, in point of propriety, to be done in that same way by the providence of the legislator, and at the same time in point of fact we shall see him (or rather his substitute, his essentially and everlastingly incompetent substitute, the judge) at work everywhere, in all directions, and with a sort of activity as pernicions in effect as it is rash and unwarranted in principle.