Front Page Titles (by Subject) CHAPTER III.: IMPROPRIETY OF EXCLUSION ON THE GROUND OF INTEREST. - The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2)
Return to Title Page for The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2)
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Also in the Library:
CHAPTER III.: IMPROPRIETY OF EXCLUSION ON THE GROUND OF INTEREST. - 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.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
IMPROPRIETY OF EXCLUSION ON THE GROUND OF INTEREST.
Interest in general, not a proper ground of exclusion.
Seeing that deception is so far from being a certain, so far from being even a preponderantly probable, consequence of falsity in evidence, even when the existence of the falsity is certain,—it seems almost a superfluous task to show, that to regard any of those circumstances which have been held as grounds of exclusion, as being, in any state of things whatever, to a certainty productive of falsehood in the evidence, is a presumption altogether unwarrantable.
The impropriety of it will appear in a clearer and stronger light, when we come to view, one by one, the several alleged causes of exclusion, for security against deception; the several circumstances, of which, falsity in the evidence has been regarded as the necessary, or at least preponderantly probable, result.
To begin with the article of interest. I say here, not sinister interest, but interest without addition: for such is the expression employed in the books of English jurisprudence.
On this occasion, as on every other, to understand what interest means, we must look to motives: to understand what motive means, we must look to pain and pleasure, to fear and hope; fear, the expectation of pain or of loss of pleasure—hope, the expectation of pleasure or of exemption from pain. The causes of physical motion and rest, are attraction, impulse, and so forth: the causes of psychological motion and rest, are motives. Action, or (in opposition to action) rest,—action, whether positive or negative,—action without motive, without interest, is an effect without a cause.
It is not out of every sort of pleasure, out of every sort of pain, that a motive, an interest, is (at least in a sense applicable to the present purpose) capable of arising. Some pleasures, some pains, are of too ethereal and perishable a nature to excite an interest, to operate in the character of a motive.
The pleasures and pains which present themselves as capable of acting in that character, have, in another work,* been reduced to a certain number of heads.
In the estimation of vulgar prejudice, there is a natural alliance between improbity and intelligence, between probity and imbecility. In the estimate of discernment, they are differently grouped: improbity and hebetude—probity and intelligence.
Ignoramus has, for the purpose of this topic, composed his system of psychology. What is it? A counterpart to the learned Plowden’s system of mineralogical chemistry: equal as touching its simplicity—equal as touching its truth. Two parent metals, sulphur and mercury: the mother, sulphur; the father, mercury. Are they in good health? they beget the noble metals: are they in bad health? they beget the base. Fortes creantur fortibus et bonis.
With minds of every class the mind of the lawyer has to deal. Of the structure of the human mind what does the lawyer know? Exactly what the grub knows of the bud it preys upon. By tradition, by a blind and rickety kind of experience, by something resembling instinct, he knows by what sophisms the minds of jurymen are poisoned; by what jargon their understandings are bewildered; how, by a name of reproach, the man who asks for the execution of the laws, and the formation of good ones, is painted as an enemy,—the judge who by quibbles paralyzes the laws which exist, and strains every nerve to prevent their improvement, is pointed out as an idol to be stuffed with adoration and with offerings.
In the view taken of the subject by the man of law,—to judge of trustworthiness, or at least, of fitness to be heard, interest or no interest is (flagrant and stigmatized improbity apart) the only question. Men at large are not under the action of anything that can with propriety be expressed by the name of interest; therefore they are to be admitted. Is a man exposed to the action of anything that can be designated by that invidious name? So sure as he is, so sure will his testimony be false. Enough: all scrutiny is unnecessary: shut the door in his face.
Sinister interest—the term and the distinction are alike unknown to them. Sinister interest? Everything that can be called interest is to their eyes sinister.
Sinister interest, a term so well known to moralists and politicians, is altogether unknown to lawyers, who have at least equal need of it.
What, then? Is it that there are certain sorts of interests that are always sinister interests, while there are other sorts, which, if language, like heraldry, were made by analogy instead of by accident, would be called dexter interests? No, truly. No sort of interest that is not capable of being a sinister interest—no sort of interest that is not capable of being a dexter interest. Acting in a direction to draw a man’s conduct aside from the path of probity, any sort of interest may be a sinister interest: acting in a direction to confine a man’s conduct within the path of probity, every sort of interest is a dexter interest. The modification of probity here in question is veracity. Any interest acting in a direction to draw his conduct aside from the line of veracity, is a sinister interest,—say, in this case, a mendacity-prompting or instigating interest: every interest acting in a direction to confine his discourse, his conduct, his deportment, within the path of truth, of verity, of veracity, is a dexter interest,—say, in this case, a veracity-securing interest.
Man in general not interested, devoid of interest? His testimony not exposed to the action of interest? Say rather (for so you must say if you would say true,) no man, no man’s testimony, that is not exposed to the action of interest.
Well: and that interest a sinister one? Not it, indeed. So far from it, there is no man whose testimony is not exposed to the action of, is not acted upon by, at least three regular and standing, commonly four, forces of this kind—all tending to confine his conduct within the path of probity, his discourse and deportment within the path of veracity and truth.
1. Motive belonging to the physical sanction:—Aversion to labour: love of ease: trouble of inventing and uttering a false statement, which, to answer its purpose, must be so elaborated and dished up as to pass for true.
2. Motive belonging to the political sanction:—Fear of legal punishment: viz. if it be a case in which (as in general) punishment stands annexed by the legislator or the judge to false and mendacious testimony.
3. Motive belonging to the moral, or say popular, sanction:—Fear of shame, in case of detection or unremoved suspicion.
4. Motive belonging to the religious sanction:—Fear of supernatural punishment, in this world or in the world to come.
Of these four motives, the three first have more or less influence on every human mind; the last, probably, on most minds.
On most minds, did I say? On all without exception, if the English lawyer is to be believed: for, by a contrivance of his own, he has shut the door against all witnesses on whose hearts motives of this class fail of exerting their due influence.*
In the above list we may see the regular forces which are upon duty on all occasions to guard the heart and the tongue against the seductions to mendacity. But, in addition to these, there may be, by accident, any number of others, acting as auxiliaries in their support. No sort of motive (even these tutelary ones not excepted) to which it may not happen to act in the direction of a seductive one—no motive, over and above these tutelary ones, to which it may not happen to act also in the direction of a tutelary one. For what motive is there to which it has not happened, does not continually happen, to be employed in stimulating men to actions of all sorts, good and bad, in the way of reward? in restraining them from actions of all sorts, in the way of punishment?†
Between two opposite propositions, both of them absurd in theory, because both of them notoriously false in fact, the choice is not an easy one. But if a choice were unavoidable, the absurdity would be less gross to say, No man who is exposed to the action of interest will speak false,—than to say. No man who is exposed to the action of interest will speak true. Of a man’s, of every man’s, being subjected to the action of divers mendacity-restraining motives, you may be always sure; of his being subjected to the action of any mendacity-promoting motives, you cannot be always sure.
But suppose you were sure. Does it follow, because there is a motive of some sort prompting a man to lie, that for that reason he will lie? That there is danger in such a case, is not to be disputed: but does the danger approach to certainty? This will not be contended. If it did, instead of shutting the door against some witnesses, you ought not to open it to any. An interest of a certain kind acts upon a man in a direction opposite to the path of duty: but will lie obey the impulse? That will depend upon the forces tending to confine him to that path—upon the prevalence of the one set of opposite forces or the other. All bodies on or about the earth tend to the centre of the earth; yet all bodies are not there. All mountains have a tendency to fall into a level with the plains; yet, notwithstanding, there are mountains. All waters seek a level; yet, notwithstanding, there are waves.
In a machine, motion or rest will depend upon the proportion between the sum of the impelling and the sum of the restraining forces: in the human mind the result will be the same. Everything depends upon proportions; and of any proportions in the case, the man of law takes no more thought than the machine does.
Upon the proportion between the impelling and the restraining forces it depends, whether the waggon moves or no, and at what rate it moves: upon the proportion between the mendacity-promoting and the mendacity-restraining forces it depends, whether any mendacity be produced or no, and in what degree and quantity. Any interest, interest of any sort and quantity, sufficient to produce mendacity? As rational would it be to say, any horse or dog, or flea, put to a waggon, is sufficient to move it: to move it, and set it a-running at the pace of a mail-coach.
In the human mind there is a force to which there is nothing exactly correspondent in the machine—the force of sensibility: of sensibility with reference to the action of the various sorts of pains and pleasures, and their respective sources, in the character of motives.
Take what everybody understands, money: for precision’s sake take at once £10, the £10 of the day, whatever be the ratio of it to the £10 of yesterday: to the present purpose, depreciation will not affect it. This £10, will its action be the same in the bosom of Crœsus as of Crœsus in the bosom of Diogenes, as in that of Catiline? No man will fancy any such thing for a moment: no man, unless, peradventure, it have happened to him to have been stultified by legal science.
In each individual instance, whether mendacity (temptation presenting itself) shall be produced or no, will depend upon four distinguishable quantities: quantities above indicated. On the one side—1. Sum of the mendacity-promoting motives; 2. The patient’s sensibility to ditto. On the other side, 3. Sum of the mendacity-restraining motives, regularly acting and occasional; 4. Patient’s sensibility to ditto. Upon these several quantities: consequently upon the ratio or proportion of the sum of the quantities on the one side to that of the quantities on the other. Of the proportion, the exclusionist knows not anything: he knows not any of the quantities; he will not suffer himself to know anything: he regards mendacity as certain; he excludes the evidence.
Of none of these several quantities can anything be known or conjectured, without examination and sifting of the evidence. Nothing can be known without experiment: and he will not suffer experiment to be made.
It is in psychology as in ship-building and navigation. Suppose the ship’s way to depend upon the joint action of six influencing circumstances—six jointly acting, but mutually conflicting, causes: and these, each of them, say (for supposition’s sake) of equal force. If, in the investigations and reasonings on this subject, so much as one of the six be omitted, error is the inevitable consequence: the forms of mathematical language, instead of a check to the error, will operate but as a cloak to it. The vessel will be in one part of the world, while the Lagranges and the Eulers are proving it to be in another.
In this respect, what course of ratiocination has been pursued by lawyers, debating on the ground of established systems? Of the whole catalogue of motives, each capable of acting upon the will with the most efficient—all consequently with a practically equal, force, they have taken observation of perhaps one, perhaps two; while on each side, or (what is worse) on one side only, the will of the patient has been acted upon by perhaps twice or thrice the number. What, in consequence, has been the justness of the conclusion? Much about what it would be in navigation, if calculations made for a submarine vessel, or an air-balloon, were to be applied to a ship of ordinary make and size: or as if, in calculating the course of an ordinary vessel, no account were taken of the depth of water drawn by her, or of the position of her sails.
In this state of the progress made by lawyers in the theory of psychology, no wonder if we should find the theory and practice on the subject of evidence in no better plight than navigation was among the most polished nations of Europe, when the scene of it was confined to the Mediterranean, and when, dreading to lose sight of land, the navigator creat along the shore.
Between these two otherwise resembling cases, there is, however, one very material and lamentable difference. In navigation, ignorance, deficient in adequate power, erred by over-caution and timidity: in jurisprudence, ignorance, supersaturated with power, is driven aground continually by hastiness and rashness.
It would be tedious, and surely by this time superfluous, to pursue absurdity on this ground through all its mazes.
No presumption so slender, which is not, under some established system, taken for conclusive, if fact, notorious or proveable fact, run counter, it makes no difference. Mendacity is presumed from affection—from bare wishes: wishes themselves are presumed from situations, from relations. Brother will be for brother, master for servant, servant for master, and so on. What? when you see them fighting with one another every day? Is it for his excessive fondness for Abel, that Cain would have been excluded by you? No matter: it makes no difference.
Among the causes of exclusion in Scotch jurisprudence, imported or not from the continent, is this: if a man applies to either party, tendering his testimony.*
Observe, first the absurdity of this exclusion, and then the mischievousness of it.
Absurdity. What? On the north side of the Tweed, does no such affection exist in any human bosom as the love of justice? In a legal bosom, it seems, no; any more than on the south side. To the man born blind, all colours are alike unknown: but was ever blind man found absurd enough to deny, or thoughtless enough to forget, the existence of colours?
Mischievousness. Mischief the first: A man saw you robbed, beaten, left for dead: him, you, for your part, did not see; you were too much engaged. To him, you, on your part, cannot apply to testify what he saw; for you know not that he saw anything; to yourself, he, on his part, must not. Did you proffer that testimony of yours to the plaintiff? asks the advocate on the other side. Yes, I did. Oh! then, away with you; tell it anywhere else you will, you must not tell it here: so sure as you opened your mouth, so sure you would be perjured.
Mischief the second: Directions to worthless witnesses: to all who, in the school of technical jurisprudence, have learnt to hate justice: to all who are in fact (if any such there be) as worthless as the man of law supposes every man to be. If you see any man barbarously injured, and, to earn a bribe, or save the trouble of testifying, you desire he should be without remedy, go and offer him your service. If you see a man purloining public money, making laws for honour, breaking them for profit, don’t stand upon rules of evidence established for the plain purpose of giving impunity to malefactors; don’t slink under a plea that will ruin you with every man who has any regard for justice; go to the prosecutor at once, and force upon him your evidence: the more obtrusive your address, the surer you may make yourself of destroying the competency, and, if that won’t do, the credibility, of your evidence.
To this rule, such is its absurdity, it can hardly have happened to be frequently acted upon: but, like every other absurd and mischievous rule of which the system is composed, it lies in readiness, well adapted to serve a cause too desperate to be served by less vile means—perfectly adapted to afford to long-robed iniquity the necessary pretence.
In this example, we may see a specimen of the sort of evidence on the ground of which the technical lawyer builds a pretence for the exclusion of other evidence. In partial affection, say rather in preferable regard, he sees evidence, and that conclusive evidence, of perjury; as if to wish well to your friend, and to perjure yourself for him, were inseparable. In the mere act of saying, I saw so and so, and am ready to testify what I saw, they see evidence of partial affection—Scotico-jargonicè, partial counsel: as if it were impossible without injustice to wish to declare to justice what he saw.
Compare Scotch and English judicial science. In Scotland, for informing the conscience of learned judges, no spontaneous witnesses receivable. In England, for informing consciences of the same learned texture, no witnesses receivable but willing ones.† Such is the metamorphosis undergone by learned Justice in her passage from one side to the other of the Tweed. Between willing and spontaneous there is certainly some difference: the expression has carefully preserved it. Let jurisprudence make the most of it: there is not an atom to be lost.
Observe, on this ground as on so many others, the consistency of the men of law, and especially English law. Delinquency, according to them, is not ever to be presumed. Yet, as often as, on the ground of danger of deception through falsehood, they exclude evidence, what is it they do but presume delinquency? What is it, as often as on this ground they exclude testimony that would otherwise be received by them in the character of evidence,—what is it they do but presume perjury? Actual perjury, no; because their providence has prevented it: actual perjury, no more than actual murder, when, the pistol or gun having been fired, a tutelary hand has just had time to beat down the guilty hand in the act of pulling the trigger: actual perjury not committed, but the state of the mind exactly as if it had.
Perjury presumed, not indeed for the punishing of the presumed perjurer, but for the inflicting punishment, or (if that be not the word) vexation, on an innocent and injured man: vexation to an unlimited extent.
Suppose the excluded testimony necessary to save the life of a man capitally prosecuted, as for murder: here, one man being presumed an intended perjurer, another man suffers death.‡
Peculiar impropriety of exclusion on the ground of pecuniary interest; and absurdities of English law under this head.
If, on the ground of interest generally considered—if, on the ground of any other species of interest in particular—the unreasonableness of exclusion is demonstrable,—it is in the instance of pecuniary interest that it is most palpable. In the case of any other species of interest—the interest not having any palpable physical cause, the quantity of which might serve as an index and measure of its force,—the strength of it where it is strong, the weakness of it where it is weak, is not so universally manifest and incontestable. Suppose, for example, it be contended that enmity, known enmity, is a reasonable ground of exclusion. Enmity, like any other passion, is variable ad infinitum in degree; capable of existing in any the lowest degree, as well as in the highest. But the force of enmity, as of almost every other passion except the love of money, can no otherwise be measured than by its effects: so that if in this or that instance no visible effects have followed from it, the only proof of which the existence and action of it is susceptible is wanting to the case. In the instance of pecuniary interest, the argument stands upon a very different footing. Without reckoning the variations in degree, resulting from the variations in the degree of opulence of which the pecuniary circumstances of the party are susceptible,—the degrees of which the force of pecuniary interest is susceptible are not only prodigiously numerous, but also, in the lowest degrees, susceptible of an existence as palpable and ponderable as in the highest. As a thousand pounds, applied in the shape of reward, will be recognised as acting on the mind in the character of a lot of pecuniary interest, with a force proportioned to its amount,—so in like manner will a shilling, a penny, or a farthing. The legislator, and the administrator, the great dealers in this species of ware, can as well cut out in pennyworths’ and farthings’ worths the portion of pecuniary interest which they may be minded to create, as in hundred pounds’ worths and thousand pounds’ worths; and how questionable soever, or even hopeless, the influence of this species of interest may be, when broken down into these minute and almost impalpable lots, yet the existence of it in this case is not less manifest and indisputable than in the other.
Thus it is that, in the instance of pecuniary interest, the impropriety of the exclusion is exposed to view by a circumstance which has no place in any other. Generally speaking, no other species of interest appears so much as to exist, but in cases in which it acts, not with considerable force only, but with effect. It is not seen to exist, but where it is seen to act; nor is seen to act, but where it is seen to triumph. Far otherwise is it with pecuniary interest. The portions in which it is seen to exist are in many instances so minute, that in those instances the notion of its prevalence is too palpably absurd to be embraced, or so much as pretended to be embraced, by anybody. Who, for instance, speaking of the people of England, would take upon himself to maintain, with a grave face, that the majority of them would be ready, upon all occasions, each of them to perjure himself for the value of a farthing? Propositions, however, far beyond this in extravagance, have been implicity assumed by many a decision that, on this ground, has issued from English benches. An interest, corresponding to some minute fraction of a farthing, has in many instances been assumed as a legitimate cause for the exclusion of a witness, on the sole ground of the pecuniary interest generated by that cause.
In vain would it be to say, that this is among the cases in which we cannot draw the line; and that, therefore, in order to shut out the evidence in the cases in which the sinister influence exerted on it by this species of interest would be operative, and productive of the apprehended ill effect, we must be content to shut it out in many instances in which, manifestly enough, it cannot be operative. The very impossibility of drawing a line, a proper line, anywhere, is an argument, and that of itself a conclusive one, against the exclusionary principle. A line of this sort (it must be confessed) would, in whatsoever place drawn, be an improper one. But, by the principle of exclusion, a line of this sort is not only drawn, but drawn at the very worst place possible. There is an impropriety in drawing the line, for example, at the sum of forty shillings; and in laying down any such proposition as that which is implicitly contained in the Court of Conscience Acts, that a man is not to be trusted to give his evidence in a case where he has a sum of money to that amount at stake upon the result of it.* There is an impropriety. Why? In the first place, because (setting aside all such inscrutable circumstances as those which consist of psychological idiosynerasies, affecting the sensibility of the individual in question to the respective action of the improbity-and-mendacity-restraining motives,) there are some incomes to which four hundred pounds are not more than forty shillings to others. In the next place, because, even supposing it clear, in the instance of any particular individual, antecedently to experience, that forty shillings would constitute a temptation sufficiently strong to engage him in the path of perjury,—supposing it possible, I say, to find sufficient reason for predicating this of a sum of forty shillings,—it would not be possible to find sufficient reason for refusing to predicate it of a sum of thirty-nine shillings. But, by the line of exclusion drawn where it is drawn, this effect is predicated, not only of a sum of forty shillings or of a sum of thirty-nine shillings, but of a sum less, and much less, than the thirty-ninth or fortieth part of the smallest piece of base metal that ever came out of a mint: and this by a sweeping and unbending rule, by which people of all degrees of opulence as well as indigence, the Crœsuses as well as the Iruses, the Diveses as well as the Lazaruses, are excluded in the lump.
The force with which a motive of a pecuniary kind acts upon the mind of a given individual, will be in the ratio of the sum in question to his pecuniary circumstances. In England, two individuals may be found, one of them belonging to the most numerous class, the income of one of whom is to that of the other as 500 to 1. All other circumstances set aside, the force with which a given sum acts upon the mind of one of these individuals, will be but one five hundredth part of the force with which it acts upon the mind of the other. Yet (supposing this rule to be observed) if, on account of his being acted upon by the prospect of gaining in this way a given sum, the testimony of the poorer of the two individuals in question is to be rejected, so must that of the richer. The same effect, and that a certain one, is to be ascribed for this purpose to two forces, of which the one is in truth but the five hundredth part of the other.
In Great Britain, an estate of the value of 20,000 guineas a-year, or thereabouts, has been known to be at stake upon the event of a single cause: value, at thirty years’ purchase, 600,000 guineas. A guinea contains a little more than 1000 farthings: this same sum, then, applied to persons whose incomes stand at different points in the scale, from the highest to the lowest, is capable of acting on them respectively with 1000 different degrees of force: 600,000 being the number of guineas, multiplying the 600,000 by the 1000, here then are 600,000,000 different degrees of force with which the mind of man is capable of being acted upon by this one motive called pecuniary interest, to which by this rule one and the same degree of force (and that in every case an irresistible one) is ascribed.
Thus different are the degrees of force with which this one, among so many causes of falsehood (checked by the action of so many counter causes—of so many causes of truth,) tends to the production of its effect: degrees, which, by the identity of the denomination given to them, viz. pecuniary interest, are represented as being the same. From the mere consideration of this diversity, it must be sufficiently evident, that, in a vast number of the instances in which this cause of falsehood has place, its influence must, practically speaking, be equal to 0—not capable of surmounting the mere vis inertia of the human mind, supposing this cause of action to stand alone, unopposed by any other: whereas the whole force of the standing causes of truth is what it has to encounter in every instance, without reckoning the force of such of the causes of truth, the action of which is but occasional. Yet this is the cause, and indeed stands at the head of the list of the causes, the force of which is, by the rule which assumes it for a ground of peremptory exclusion, regarded as being in every instance infinite and irresistible: certain, at least, of preponderating over the sum of all other forces—of all causes of truth—to which it can happen to stand opposed to it.
If there were any sort of witnesses imaginable, against whom it were prudence to shut the door, the sort of witnesses against which the law is so decided to shut the door, are precisely those to whom it may be thrown open with least danger. All witnesses being exposed to seductive influence, all witnesses being dangerous, those will be least dangerous against whom men are most upon their guard: such are those, on whose foreheads the force of the seduction is written down in figures. A cloud involves the workings of friendship, a cloud involves the workings of enmity, a cloud involves the workings of love: the existence of the passion, the force of its action, everything is involved in darkness. No juryman, no stranger, scarcely even the closest intimate, can form any estimate of the degree of the enmity, the friendship, or the love: experience may have shown him no such enmity, no such friendship, no such love. But every man knows what ten shillings is, what twenty shillings is, and what is the difference: every man knows the value—every man feels the power, of money. Every man knows that allowances are to be made for it. Few men are disposed to make less allowance than truth requires, for the force of its action on other people. Few men are disposed to set the incorruptibility of other men at too high a rate, or the force of corruption at too low a one: few men there are in whom suspicious thus grounded are in any danger of not being carried up to the full limits of the truth: few in whom they are not much more apt to be carried beyond the truth than to fall short of it.
Of the force of money, on whatever occasion acting, the judge sitting on his bench is fully aware and acutely sensible. Agreed: but is there any other human being to whom that force is a secret? Sits there that old woman anywhere (not to confine ourselves to benches) who, on hearing a report made to her by another old woman, forgets to ask herself in what way and degree (if in any) the reporting old woman may have to gain or lose by the credit given or not given to her report?
What? can the man of law be sincere in thinking that no sort of men understand either the value of money, or the influence of it upon testimony, but himself?
In this case, therefore, the advantage expected from exclusion of evidence, in the character of a security against deception and consequent misdecision, is more plainly ideal than in any other: the reason in favour of the exclusion more palpably frivolous. And yet it is to this modification of interest, that exclusion on the score of interest is in a manner confined by English jurisprudence.
In the eyes of the English lawyer, one thing, and one thing only, has a value: that thing is money.
On the will of man, if you believe the English lawyer, one thing, and one thing only, has influence: that thing is money. Such is his system of psychological dynamics.
If you will believe the man of law, there is no such thing as the fear of God; no such thing as regard for reputation; no such thing as fear of legal punishment; no such thing as ambition; no such thing as the love of power; no such thing as filial, no such thing as parental, affection; no such thing as party attachment; no such thing as party enmity, no such thing as public spirit, patriotism, or general benevolence; no such thing as compassion; no such thing as gratitude; no such thing as revenge. Or (what comes to the same thing,)—weighed against the interest produced by the value of a farthing, the utmost mass of interest producible from the action of all those affections put together, vanishes in the scale.
Add self-preservation, if you please—self-preservation from whatever be the worst of evils, death not excepted,—the farthing will still be heaviest. “A pin a day is a groat a year.” Instead of the farthing, put in a pin, the result will be still the same.*
Romance! romance! True; but it is the romance of real life. The picture here drawn of the human mind is romantic enough, no doubt; but as to the account here given of that picture, nothing was ever more strictly true. Such are the decisions of the sage of law; such his every day’s practice; such his opinions, such his thoughts: unless, on learned benches, decision and practice run on without thought.
For a farthing—for the chance of gaining the incommensurable fraction of a farthing, no man upon earth, no Englishman at least, that would not perjure himself. This in Westminster Hall is science: this in Westminster Hall is law. According to the prints of the day, £180,000 was the value of the property left by the late Duke of Bridgewater. For a fraction of a farthing, Aristides, with the duke’s property in his pocket, would have perjured himself.
One decision I meet with, that would be amusing enough, if to a lover of mankind there could be anything amusing in injustice. A man is turned out of court for a liar, not for any interest that he has, but for one which he supposed himself to have, the case being otherwise. Instead of turning the man out of court, might not the judge have contented himself with setting him right? Would not the judge’s opinion have done as well as a release?† The pleasant part of the story is, that the fact on which the exclusion is grounded could not have been true. For, before the witness could be turned out of court for supposing himself to have an interest, he must have been informed of his having none: consequently, at the time when he was turned out, he must have ceased to suppose that be had any.
Another offence for which I find a man pronounced a liar, seems to make no bad match with the foregoing: it was for being a man of honour. “Oh ho! you are a man of honour, are you? Out with you, then—you have no business here.” Being asked whether he did not look upon himself as bound in honour to pay costs for the party who called him, supposing him to lose the cause, and whether such was not his intention,—his answer was in the affirmative, and he was rejected. It was taken for granted that he would be a liar. Why? Because he had shown he would not be one. If instead of saying yes, he had said no, who could have refused to believe him? and what would have become of the pretence?
By the supposition, the witness is a man of super-ordinary probity: moral obligation, naked moral obligation, has on him the force of law. What is the conclusion of the exclusionist? That this man of uncommonly nice honour will be sure to perjure himself, to save himself from incurring a loss which he cannot be compelled to take upon himself.*
To observe, in an instructive point of view, the cases where the exclusionist runs a tilt, as here, against a phantom of pecuniary interest—contrast them with the cases to be next mentioned, in which, notwithstanding its being pregnant with that same interest in its most palpable shape, he gives his permit to the evidence.
Exceptions to the exclusionary rule in English law—Reasons of the exceptions, subversive of the general rule.
What has happened in this instance, and what, in this as well as so many other instances, is the best thing that could happen to the laws of our jurisprudential Solons,—they are contradicted, contradicted by themselves, and at every turn. Exceptions, self-contradictions, spring up everywhere under their feet: exceptions, and, as far as they extend, all reasonable. Reasonable, and why? Because, the rule itself being fundamentally absurd, everything must be reasonable which goes to narrow its extent.
In considering the exceptions as reasonable, understand the practice, viz. the act of admission, and no more: for as to the reasons on which it has been built, they may be reasonable, or absurd in any degree; the practice is what it is.
Before I enter upon the consideration of the particular exceptive rules, each characterized and supported by its appropriate reason, it becomes necessary to explain what sort of a thing it is, which, under the name of a reason, one meets with in the books of English common law.
Common-law reasons may be distinguished, in the first place, into technical reasons and vulgar reasons. By technical reasons are meant reasons that have nothing to do with utility. Technical, as applied to reasons, is an appellative invented by English lawyers, to denote such modes of speaking as would not pass for reasons upon anybody but themselves: reasons peculiar to the art, the science, the profession. By a reason, speaking with reference to a law or rule of law, an unlearned man would be apt to understand, a consideration the tendency of which is to prove the law or rule of law to be conformable to the principle of utility: i. e. productive of more good than evil. These vulgar or popular reasons a learned man will sometimes condescend to take up when they happen to fall in his way; but the favourite, the privileged, reasons, are of course the professional, the scientific, the transcendental—in a word, the technical, reasons: as above described.
Leaving the scientific reasons to scientific men, as not being fit to be spoken of under the name of reasons by vulgar lips, I confine the application of the word reasons when employed without any such additament to such reasons of the vulgar cast, as, on the occasion in question, have been honoured by the adoption given to them by scientific pens.
A great book, according to the Greek proverb, is a great evil. A law, besides what belongs to it as a book, is at any rate an evil, great or little. To form a tolerably correct judgment concerning any law, in respect of the question whether the good or the evil tendencies of it predominate—in a word, to form his judgment on the question on which side the balance is,—every legislation and writer on legislation who understands his business, proceeds in his accounts as a perchant does in his: has a debtor side as well as a creditor, and neglects not any more to make his entries on one side than on the other.
In the books of English lawyers, the ways of speaking which one meets with under the name of reasons, are confined for the most part to one side. Such is the case in particular with the reasons corresponding to the several particular rules by which so many groups of exceptions have been attached to the general rule of exclusion on the score of pecuniary interest. To the rule itself, no reason at all appears ever to have been annexed: the utility of it has been established by assertion and assumption, without so much as an attempt to find a reason for it. To the exception has been attached a reason, such as it is; a reason, of course, in favour of the exceptive rule—a reason on that one side. The reason having been thus exhibited, its conclusiveness has been presumed as a matter of course. No marks are discoverable, on this ground at least, of any such suspicion, as that, in the account-book kept by a legislator (supposing him to keep any,) there should be two sides.
On the present occasion, in presenting a sample of learned reason on this ground, I shall confine myself to the case of an extraneous witness. The case in which the pecuniary interest at stake is that which a man possesses in the character of a party in the cause, plaintiff or defendant, is reserved for another place;* for, in this latter case, jurisprudence, and more particularly English jurisprudence, will be found variegated by inconsistencies, for which, in the situation of an extraneous witness, there is no place.
In point of propriety, the exclusion stands in both cases on nearly the same ground. If there be any difference it is this,—viz. that, sum for sum, the exclusion is more plainly useless in the case of the party than in the case of the extraneous witness. Why? Because the interest by which the will is acted upon in a sinister direction, is, in the case of a party, more conspicuously painted upon the face of the situation in which he stands. Deception is therefore so much the less probable: the mind of the judge, be he who he may, is so much the less in danger of not being sufficiently forewarned against it.
I. Exception the mist:—Interest against interest.
Unless the rule, out of which the exception is taken, he supposed to be bad in toto, the reason of the exception (if it has any) supposes all other circumstances equal, and the quantity of money creative of the interest the same on both sides. Against the truth of this supposition, there is exactly infinity to one. The number of possible ratios is infinite: of these the ratio of equality is one. Of the proportion between interest and interest, the exception takes no cognizance: no mention of it is made.†
II. Exception the second:—The interest contingent.‡
The assumptions here are two:—1. That in human affairs, at least in human affairs of this stamp, a line is already drawn between certainty and contingency; 2. That no contingent interest can be equal to any certain one. Whence came this postulate? From Euclid? from Price?—from the Stock Exchange?—from Lloyd’s Coffeehouse?
The postulate once admitted, demonstrations follow in any quantity, and to any effect.
1. That,—in the case above alluded to, of the duke with his £180,000 a-year, his title to the whole of it being contested, the duke at the point of death, his only son called on his part as a witness, the estate unsettled, son and father upon the terms that all fathers and all sons ought to be,—the son would be a good witness. Why? Because his interest is not vested; is not certain; is no better than contingent. Secus, if the estate be in settlement, sixpence a-year settled on the son, the father in full vigour, the son in a galloping consumption, father and son like Henry II. and his sons: for here le interest del fitz est certain, et nemy contingent.*
Can it be necessary to observe, that in human affairs, in matters of gain and loss especially—more particularly in matters of gain and loss that depend upon law,—the difference between contingency and certainty is but in name?—that what is called a certainty (for even death itself is contingent as to time) is but a contingency, in which the ratio expressive of the degree of probability is more or less greater than in the other case? Can it be necessary to observe, that there is not that contingent sum for which the exact equivalent, in a sum called by everybody a certain one, is not to be found? The lawyer, by whose decrees the operations of the money market are governed and perplexed—are they all a secret to him? What charity-boy, what beggar-boy, was ever at a loss to know that the toss-up of a halfpenny was worth a farthing? Alas! When will the wisdom of the sages of the law rise to a level with that of babes and sucklings?
Observe what the £180,000 a-year loses in value, by being contingent instead of certain. The proportional number of fathers by whom their only children are disinherited is—what shall we say? say one out of a thousand: say even one out of a hundred and eighty. The value of the £180,000 is reduced, by this circumstance, to what?—to £179,000.
Great debates, in the days of the schoolmen, concerning the comparative value, in point of interest, of a possible Angelship and a present Mouseship. Mr. Justice would be clearly for the mouse.
2. Keeper and concubine: keeper rich as a Jew, fond as the Jew in the Harlot’s Progress: concubine at high allowance: keeper’s whole property at stake upon the cause. Concubine a good witness.
3. Defendant a feme sole, maid or widow; her whole property at stake, as before, she the heiress of our duke; witness courting her in marriage, and the day fixed:—a better witness need not be desired. I know how worthless a thing a woman is, in the eye of a true English lawyer: how incapable of creating an interest; how incapable of exercising any influence, right or wrong, on man’s affections: it was my care, therefore, to clothe her, to invest her, with a fee-simple.
4. The duke’s daughter seduced: suppose, as Clarissa was by Lovelace: she wanting a day of being of age. Pier porte action versus seducer: case, trespass per quod servitium amisit: stockings remaining unmended, which fille should have mended while in childbed: damages laid at £10,000. Fille good witness. Why? Because no interest. What matters it to her whether she be thought to have been defiled without consent, or to have delivered herself as Potiphar’s wife would have done to Joseph?
Secus, the day past, and fille of age. Action per pier ne gist,†quia nul droit: because no right per faire fille mend stockings: issint, no damages al pier. Action per fille ne gist, quia nul seduction, fille ne esteant dans age: et uncore fille bad evidence: quia nomo debet esse testis en son cause demesne.
III. Exception the third—But here a difficulty occurs. A reason, to be susceptible of correct scrutiny—a reason, like any other proposition, should have for its vehicle some determinate and complete grammatical sentence. But among the words, or assemblages of words, which on this ground assume the guise and port of reasons, no such propositions, no such sentences, are to be found. What is found, consists of here and there a catchword or two, out of which, if others were added to them, reasons of some sort or other might peradventure be composed. Take, for example, the words necessity, course of trade. The matter of Gibbon’s book has been not unaptly stated to be not history, but allusions to history; the sort of matter here in question may, in like manner, be said to consist not of reasons, but of allusions to reasons.
1. Jeweller delivers jewels to his journeyman to deliver them over to a customer: journeyman steals them. Thief good witness to prove delivery. Why? Because, in speaking of the transaction, occasion may be taken to use the words course of trade. Trade is certainly a good thing: but quære, what can it be the better for a sort of evidence which in each instance will most probably, if not certainly, give the goods away from the right owner to a thief?
Secus, it the jeweller himself had delivered them:* for, this is not in the course of trade. No shopkeeper was ever known to serve a customer with his own hands.
Observe the difference: in case of mendacity, the jeweller has no interest to serve but that of gaining the value of the jewels; the journeyman has that same value to gain, and his life to save. But in the English lawyer’s price-book, life is worth nothing; reputation worth as little, except when money is to be got by parting with it.
2. Action for the price of goods sold by factorage: factor paid at 5 per cent. Question about the price agreed on, whether £10,000 or £11,000: if £11,000, factor gets £50, which, if £10,000, he does not get. Factor a good witness. Why? Because here too you may say course of trade. Had the factor delivered £50 worth of his own goods with his own hands, there being nobody else to prove it, he would have lost the money; for here you cannot say course of trade.
If, in the one case, the profit from perjury, supposing perjury, is no greater than in the other,—how much greater the mischief! how much greater the loss! To gain his £50, the factor must, in the first case, have inflicted on the party injured a loss of twenty times as much.
In a case of this sort (and there are plenty of them) some, instead of course of trade, say necessity. The one word is as good as the other: any other as good as either of them. Approve the exception, you must first have condemned the rule.
With reference to what event can it be necessary to admit a species of evidence which is more likely to be productive of injustice than justice? for such (as we have seen) is the fundamental proposition, which, in point of reason, forms the necessary and only basis of the rule. With reference to what desirable end? To the avoidance of injustice? To say so, would be a contradiction in terms.
In these three words, course of trade, may be seen a complete confutation of the rule; a complete disavowal of the principle of it; a complete certificate of the non-existence of that danger which constitutes the sole reason of the rule.
Course of trade!—and of what trade? Of every branch of trade, from the highest to the lowest: course of dealing—of dealings of all sorts—of every day’s dealings between man and man. The persons exposed to the action of this sinister interest—of this interest, which, sinister as it is, pecuniary as it is, as well as so much beyond pecuniary, forms no bar to their testimony,—are persons of the lowest, as well as most numerous order, servants and day-labourers: while the interest, the pecuniary interest, of itself, rises to any magnitude. And with this example not only before your eyes but in your mouths, you take upon you to deprive justice of the light of evidence, on pretence of interest!
IV. Exception the fourth:—Interest created by a wager: a wager laid by the witness on the event of the cause.
Reason for the exception: A man ought not to have it in his power to deprive another of the benefit of his testimony.†
What! not to deprive him of a sort of testimony which, in your view of the matter, is sure to be stained by perjury, and to produce misdecision and injustice? One thing on one occasion, another thing on another occasion. One individual must not have it in his power to deprive another of the benefit of his testimony. How often do they not, these lawyers, give that same power to individuals in other instances!—how often do they not execute it themselves!
Blessed law! A law authorizing parties to hire witnesses, and witnesses to be hired—a law establishing a market overt for hired witnesses—effect given to the practice, and nothing said against it!
Wagering thus employed is subornation; nor yet simple subornation, but subornation double distilled. Subornation simply distilled is £100 promised by plaintiff to witness, to be received if plaintiff gains the cause. A wager of £100 between plaintiff and witness, plaintiff laying that he loses the cause, witness that he gains it, acts with double the force.‡ In the case of the simple loser, though plaintiff should lose the cause, witness will indeed gain nothing, but neither will he lose. In the case of the wager, plaintiff losing the cause, witness will not only gain nothing, but he will forfeit as much as in the other case he would have gained.
V. Exception the fifth:—
After observing the cases in which the excluding rules have been broken through, for reasons proper in themselves, but yet no otherwise proper than on the supposition of the impropriety of the rule,—it may be curious enough to observe a case in which the rule is broken through on the ground of a circumstance out of which nothing like a reason can be made, or is so much as attempted to be made.
A time there was, when the witness was not exposed to the action of the sinister interest, to the action of which he is exposed, now that he is called upon to speak. Well, and what then? What follows? That at that time, had he been examined, the cause which exists for suspecting him would not at that time have existed: but, for not existing then, does it exist the less at present?
Question: A man who at the time of his examination has an interest in the cause,—is he an admissible witness, he having had no interest at the time of the supposed fact? Decision in the affirmative.* Because he was under no temptation when he had not to speak, therefore, when he is to speak, knowing him to be under temptation, you are to suppose him not to be so. Just as if a pilot were to say in a storm, the vessel among the breakers, Sit still; there is no danger. Why so? Because yesterday it was a dead calm.
VI. Exception the sixth: Voire dire.† Truth expected, in spite of interest.
One point of practice more may put a finish to this exclusionary rule, and the deviations from it. When a witness produced against you has an interest in the business (meaning always a pecuniary interest,) and you cannot get other evidence of it, or do not care to be at the expense, you address yourself to the witness himself, and ask him whether he has or no: if he speaks truth, he is turned out; if he perjures himself, he is heard. This operation is called examining a witness upon the voire dire. Voire dire is, in law French, to tell the truth: and the examination is called voire dire, because upon this occasion the witness is called upon, and expected, to tell the truth; no such requisition being made, nor result expected, in other cases.
The practice, and the name found for it are not ill matched. Speak the truth indeed? So, on this occasion he is to speak truth, is he! What is it, then, that he is to speak on other occasions?
On the exclusionary principle, no supposition was ever more completely felo de se. If the man has no interest, they make sure in the first place that he will not speak the truth; and, though he have an interest, still they expect him to speak the truth.
On the principle of universal admission, nothing would be more consistent, nothing more rational, than the practice. If the situation the witness stands in exposes him to the action of a mendacity-promoting interest, he will speak under a bias: the judge should know of it, that he may put himself on his guard. Mendacious it may happen to him to be respecting this collateral fact, as well as the principal one; but mendacious he cannot be in both facts, without exposing himself to double danger. Bad as a passport to (jargonicè say) competency, the examination is good as affording a clue to credibility.
In a modern book which lies before me, the practice of examination on a voire dire is spoken of as being at present out of use. How the practice itself can be out of use, I do not very well conceive. I can conceive the phrase to be out of use—and if it be, so much the better. A man might look a good while, even in the vocabulary of English law before he would find so silly a one. Come, my honest friend, I am going to put some questions to you. To the first of them, the court expects you to speak truth: to the others, as you please.‡
We have now seen that, if it were in the nature of pecuniarily-interested evidence to give birth to any such systematical plan of legal depredation as upon a partial and hasty view might seem the inevitable consequence, the cases in which (notwithstanding the influence of the principle of exclusion) this seemingly dangerous species of evidence is actually admitted, are of sufficient extent to have long ago let in the mischief in full force. At the same time, a matter of fact universally notorious is, that no symptoms of the prevalence of any such mischief have ever manifested themselves.
So far is the public from ever having been laid under contribution by a system of depredation grounded on mendacity, as in the case supposed,—so far has been the practice of laying individuals under contribution in this way, by false evidence, from being realized to such a degree as to have become a prevalent practice,—that even the rewards offered to informers—the standing invitations by which men are called upon, at all times, to lay offenders under contribution, without prejudice to truth, and to the great benefit of justice,—are not excepted to an extent sufficient to give to the laws thus endeavoured to be supported, the degree of efficacy which the interest of the public in that behalf renders so desirable.
Men are not so forward as could be wished to dig for emolument in the mine of litigation, even by the invitation, and under the full protection of the law. Can it be looked upon with reason as a mischief seriously to be apprehended, that men should be more forward than at present to embark in the same intricate adventure, with the reproach of mendacity and injustice pressing all the while upon their consciences, and with the fear of punishment and infamy before their eyes?
[* ]Springs of Action Table. (Vol. I. p. 195.)
[* ]Vide infrà, Chap. V.
[† ]See Book I. Theoretic Grounds; Chap. XI. Moral Causes of Correctness and Completeness in Testimony. (Vol. VI. p. 256.)
[* ]Erskine. Macdowal, vol. ii.—[Two institutional writers of the middle of the eighteenth century. If the doctrine was ever fully admitted, it has for sometime past been in desuetude.—Ed.]
[† ]For their own use, English judges, learned ones at least (as has been so often mentioned,) receive no testimony but in the affidavit shape. But no man can be compelled to give his testimony in this shape. The appropriate summons, the subpænâ ad testificandum, applies not to this shape.
[‡ ]A man who had an estate pur auter vie, the auter vie being the life of one on trial for a capital crime,—would his testimony, in English law, be admitted at the instance of the prisoner?a I leave the question, a maiden one, for the solace of future contingent quibblers. But this I know, that if I were a judge, and it were a way with me upon the bench to do a kindness to a friend’s friend, the man should be hanged or not, as I pleased. Hang or not hang, I should be sure, not only of my job, but of my praise. Loading the gallows, I should have praise for my justice; exonerating it, for my humanity: the job should determine which.
[* ]Many of these local acts now give jurisdiction to the extent of £5.—Ed.
[* ]Under jurisprudential law, in cases in which a penalty is given to the poor of the parish, and thence in exoneration of the rateable inhabitants, the evidence of a parishioner could not be heard to convict a man of an offence subjecting him to a penalty of five shillings thus applicable. Instead of five shillings, say one shilling: examples might be found:—poor’s share, sixpence. Take a parishioner of Marylebone, and compute how much more or less than that of a pin the value of his share of the one shilling or the five shillings would be.
[† ]Peake, 128. Vide infrà, Chap. VII. Restoratives to Competency.
[* ]Both these extravagancies have been set aside by later decisions. A witness cannot now, according to Phillipps, be excluded on account of his believing himself to be interested, nor on account of his considering himself bound in honour to pay the costs. See Phillipps (edit. 1822,) i. 50, 51. The former point, however, seems to be still doubtful. See Phillipps, note (1) to p. 52.
[* ]Part V. Double Account.
[† ]It must be acknowledged, that, in many of the cases in which this exception has been allowed, it has been, from the nature of the case, unquestionably certain that the interest, at least the pecuniary interest, was equal on both sides; thus, the accepter of a bill of exchange is an admissible witness in an action by indorser against drawer, to prove that he had no effects of the drawer’s in his hands; because, whichever way the suit may be decided, he is equally liable. On the other hand, there are many cases in which the interest is not really, but only nominally, the same on both sides. Thus, a pauper is a good witness for either parish, in a settlement case: why? because (we are told) it is the same thing to him whether he has a settlement in one parish or in another: true, it may be the same thing; but it may also be a very different thing, since different parishes give very different allowances to their poor.—Editor.
[‡ ]Lord Chief-Justice Parker rejected the evidence in favour of a hundred, of a hundredor who was so poor as not to be called upon to pay taxes, on the ground of the possibility of his one day becoming rich. 10 Mod. 150.—Ed.
[* ]1 Salk. 283.—Ed.
[† ]This action, however, can be maintained, whether the daughter is of full age or not. In the case of Bennett v. Allcot, Mr. Justice Buller said—“Here instances of actual service are proved, and therefore it is immaterial whether she were of age or not.” 2 T. R. 166.—Ed.
[* ]1 Phil. 64.—Ed.
[† ]The principle laid down in Barlow v. Vowell, Skin. 386, and the celebrated case of Bent v. Baker, 3 T. R. 27, was, that where a person makes himself a party in interest after a plaintiff or defendant has an interest in his testimony, he may not by this deprive the parties of the benefit of his evidence.—Ed.
[‡ ]If the remark were worth insisting on, it acts with more than double the force; the suffering from a given sum lost being so much greater than the enjoyment from the same sum gained. What if the £100 lost were the witness’s all: he could lose no more; his suffering from loss could not be increased. Supposing it so much gained, the gain would be capable of being doubled and doubled, and so on ad infinitum; and still the enjoyment limited enough, as, by universal confession, all human enjoyments are. Laws are in force reprobating simple gaming, and empowering the loser to recover back money thus lost. How innocent is simple gaming, in comparison with such wagering!
[* ]Modern Equity Digest, tit. Evidence, from 2 Vesey jun. 634.
[† ]1 Phil. 23, 123, 254.—Ed.
[‡ ]The above-enumerated exceptions are but specimens.
4. The same person, when he has got a release from him to whom the bond purports to be payable.