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CHAPTER VI.: IMPROPRIETY OF EXCLUSION ON THE GROUND OF MLNTAL IMBECILITY, AND PARTICULARLY OF INFANCY AND SUPERANNUATION. - 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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IMPROPRIETY OF EXCLUSION ON THE GROUND OF MLNTAL IMBECILITY, AND PARTICULARLY OF INFANCY AND SUPERANNUATION.
The last ground of exclusion on the score of deception, to which our consideration is called, is imbecility.
From whichever source it be derived, the propriety of regarding imbecility, upon occasion, as a cause of suspicion, is obvious and indisputable. From whichever source derived, the taking it for a cause of exclusion will be found equally indefensible.
Mental or corporeal, imbecility—a term of relation—admits of degrees ad infinitum. Imbecility, in a variety of respects, is the lot of all created beings. Supposing that, in any degree, imbecility were capable of constituting a proper ground of exclusion, by what mark could that degree be distinguished from any other? From the impossibility of finding an answer to that question, results the impropriety of taking it for a ground of exclusion in any case. In the absence of any universal mark of such a degree of imbecility, to form such opinion as the nature of the case admits of, there is but one rational course, which is, the examining of the proposed witness: which only rational course is the very course that, upon the supposition of the exclusion, is not suffered to be taken.
Infancy, superannuation, insanity: whatever be the modification—connected or unconnected with the circumstance of age—the answer will be still the same.
Between infancy and maturity, it is necessary, for some purposes, to draw a line at a venture; and that line (notwithstanding the wide difference in respect of intellectual strength between individual and individual at the same age)—that line a common one, fixed for every individual at the same place. But to the present purpose, no such line is necessary: no such line can afford any security against deception: no such line can fail of producing, if not deception itself, yet (what is worse) misdecision.
In the case of superannuation, the impracticability of drawing any line for that purpose, without the most palpable absurdity, is plainly obvious. Imbecility, and to such a degree as to make delivery of testimony not merely ineligible but impossible, is the effect of infancy at a certain age. Imbecility, to this purpose, or indeed almost any other, considered as the result of superannuation, is but an accidental concomitant, and indeed a rare one, at any period of old age.
In the case of insanity, a fixed point of time for this purpose is not incapable of being proposed, but incapable of being employed to any good effect: when (for example) a man, having by competent authority been deemed incapable of retaining in his own hands the management of his own affairs, without preponderant prejudice to himself and others, has by competent authority been declared in that state, and placed under the authority of a guardian for that purpose.
Here indeed would be a point of time fixed; but no line could be drawn through it, applicable with any advantage to this purpose. From any degree of comparative unfitness in respect of providence, and the various other faculties necessary to the management of the variety of affairs that occur in human life, no tolerably-assured inference can be drawn respecting the capacity or incapacity of giving a correct and intelligible statement of a single fact which came within the cognizance of a man’s senses. Before the arrangement made, a man may have been completely incapable perhaps of obtaining perception of the fact—perhaps of remembering and giving a correct and intelligible statement of such perception, though obtained:—after the arrangement, competent or incompetent to the general management of his own affairs, to the purpose of delivering testimony it may happen to him to be as completely competent as another man. These observations are brought to view for the purpose of nipping in the hud, if possible, future contingent exclusions on this ground.
Of the three sources and modifications of intellectual imbecility, infancy is the only one that has been taken for exclusion by English law. Accordingly, of the three words mentioned in this view, infancy is the only one, of which, for this purpose, any mention is to be found in the books. For the same reason, imbecility, the word here employed for the purpose of including the three cases, and bringing to view the ground they stand upon, is in these treasures of technical science equally unknown.
In a direct way, infancy cannot at present be employed as a bar to admission, howsoever immature the age. For, with the approbation of the twelve judges, in the case of an infant of no more than seven years old,* and in a case of an infant under seven years old† (how much under is not said,) this evidence was received.
Unfortunately, to the admission given in this case, two conditions precedent have been annexed.
One is, that the child shall have taken an oath; i. e. gone through the same ceremony by which testimonial relation is preceded in other instances. To this operation, had it been performed, there could have been no objection. The misfortune was, that in a certain instance it was omitted: and the consequence was, that, a rape having been committed “on the body of an infant under seven years of age,” the man by whom, if by anybody, the mischief was done, was sent out to commit other rapes.
“The prisoner” (according to the learned reporter‡ ) was convicted; but the judgment was respited, on a doubt [not having any relation to the fact, but] “created by a marginal note to a case in Dyer’s Reports; for these notes having been made by Lord Chief Justice Treby, are considered” (continues the book) “of great weight and authority: and it was submitted” (by Mr. Justice Buller, anno 1779) “to the twelve judges,” whether evidence, under any circumstances whatever, could be legally admitted in a criminal prosecution, except upon oath? Answer: No, not in any case.
2. The other condition was and is, that the “infant appear, on strict examination by the court, to possess a sufficient knowledge of the nature and consequences of an oath”—“of the danger and unpiety of falsehood.”∥ For a more particular description of the knowledge and the danger above spoken of in general terms, the following exemplification promises to serve as well as any other that could be substituted to it, since neither the questions nor the answers are fixed by law. Extract from the newspaper called the Times, dated 17th Sept. 1803. Proceedings at the “Old Bailey, Friday, Sept. 16, 1803. Mary Ann Carney, a daughter of the prisoner, only twelve years of age, was examined relative to the idea she entertained of an oath, and the consequences that would result from telling a falsehood. The answer which she returned was exceedingly correct: viz. that if she told a falsehood when on oath, she should be put in the pillory when in this world, and go to the devil when in the next.”
To the putting of a question to the effect above described, I know of no conclusive objection; but, to the deducing, either from silence or from any answer whatsoever which may have been extracted by such a question, a decision pronouncing the exclusion of the testimony, objections occur that seem perfectly unanswerable.
It is requiring of the child, as a condition precedent to her being suffered to give a sort of relation which a child of any age that can speak may be perfectly competent to give, a sort of account which a child of that immature age (to go no farther) seems altogether incompetent to give. The testimony to the relevant point is to a fact of the most simple nature—a fact which, supposing it to have happened, must have presented itself to the senses of the patient, and made a very deep impression on them. The subject-matter of the testimony to the irrelevant point, is a fact of the most complex and abstruse nature: a fact that has been matter of dispute among the maturest, the strongest, and acutest minds.
The relevant question—the question to which (if to any) the child would have been competent to give an answer—was, what she had seen and felt? The irrelevant question prefixed, and (in one event) substituted to it, included a string of questions: what on this most abstruse subject she had been taught, what she had comprehended, and what she had retained? The evidence—the only evidence that, in answer to such an examination, could have been given by such a child, was, not the opinion of the child, but an article of hearsay evidence: the account given by the child of the instruction it had received.*
Observe the effect of the criterion so unhappily employed. The proper question, whether the child has been thus injured, is put aside; and, instead of it, another question is put in, viz. whether the child can say its catechism.
Of the substitution thus made, or preference thus given, of a question foreign to the merits—to the only question belonging to the merits, the following present themselves as the natural consequences:—
1. In some cases, excluding good and true evidence; thus excluding justice, and giving impunity to the guilty. If the child has not been tutored in the requisite manner, and that with effect on the part of the child, as well as diligence on the part of the instructors, the child may have been abused and mangled, the malefactor goes unpunished, laughing at the sages from whose zeal, so little according to knowledge, he has obtained a licence.
2. Placing the fate of the cause (in a capital cause, the life of the prisoner) in a state of complete dependence on the will and pleasure of the person or persons under whose power the child is all the time; its parents, for example. Is it their wish that the cause should be deprived of the benefit of the child’s evidence? The catechism is omitted to be administered, or a sort of anti-catechism administered in the room of it, according to the nature of the case. By a false answer, had the testimony been admitted, the child might have been subjected to punishment as for perjury, and the parents to legal punishment, or at least to disrepute, as for subornation of perjury. On the occasion of the preliminary examination, neither from silence nor from any answer whatsoever—from any such answer as in this view they may have presented, need any such consequences be apprehended. Thus it is, that in this way the full benefit of perjury, or subornation of perjury, may be obtained, without any of the risk: the full benefit of perjury, under the protection, and as a fruit of the wisdom, of English jurisprudence.
3. Holding out to false and mendacious accusation a receipt for fabricating evidence, and, by a false gloss, bestowing on it an appearance of trustworthiness. The supposition that the individual whose fate depends upon his knowledge of the law, should on any occasion be in possession of any such knowledge, may be apt to appear ridiculous; but it is what by accident does now and then happen. The mother of such a child forms a scheme for ruining a male enemy. She employs the requisite time and labour in impressing upon the mind of the child two lessons: the one, a false story of the supposed injury; the other, an appropriate catechism, such as may afford the requisite satisfaction to the pious anxiety of the judge. Delighted with the advances made by the sweet child in the science of theology, to entertain a doubt of its veracity would be impiety in the eyes of jurisprudential science.
The same artificial mark of trustworthiness, which, on the occasion just spoken of, gave such complete satisfaction in the instance of a child of twelve years old, might, in many instances, be imprinted with equal facility and success upon the testimony of a child not above half, or even a third of that age. It might even be imprinted upon the faculties, mental and vocal, of a naturally-accomplished and well-instructed parrot or magpie—with this difference, that, in the case of the unfeathered witness, the questions would require to be in that form to which an advocate is confined when examining a witness of his own side; whereas, in the case of the feathered witness, they would require to be in that more commodious form, with the use of which he is indulged in the examination of a witness on the opposite side.
4. The wording of the test being moreover unfixed, as is the case with everything that has no more determinate foundation to rest upon than that of jurisprudential law,—the testimony of the most trustworthy witness is liable to be sunk by any failure of coincidence between the persuasion of the judge and the persuasion of the child (that is, of its instructors) on a subject thus obscure and delicate. Not to mention extreme cases, such as those of atheists and other unbelievers,—Christians are not wanting, to whose conceptions the devil presents himself in the character of an allegorical and purely ideal personage. If, in the case of the child whose answers on this head gave such complete satisfaction at the Old Bailey, the expectation of an eventual visit to the president of the infernal regions was regarded as an article of faith indispensable to the present purpose,—an answer disaffirming the existence of that tremendous personage, might have been fatal to the merits of the cause. On this supposition, a boy of twelve years, whose good fortune it had been in other respects to have been under the tuition of Dr. Priestley, or any other equally zealous defender of the Christian faith, might, for want of the necessary protection depending upon his own evidence, find himself exposed to the most afflictive personal injuries—or, at the expense of real mendacity, find himself obliged to purchase the factitious reputation of the opposite virtue.
Learned judges have seldom time to introduce any very searching probe into the bowels of the evidence: give them a good round answer, satisfaction enters, and ejects diffidence. “I shall be put into the pillory in this world; I shall go to the devil in the next.”—“Exceedingly correct,” is the observation of the reporter; “exceedingly correct” (unless the reporter were incorrect,)—“exceedingly correct,” or something to that or the like purport or effect, must have been the observation of the judge.
In the individual cases in question, the parties on both sides being low people (for of the labours of counsel on their behalf nothing is said,)—the answer, being thus pointed or rounded, and adapted to the taste of learned judges, passed without further scrutiny. His reverend lordship was not less indulgent to the young theologian, than a friendly examiner at Oxford or Cambridge would have been to a candidate for a degree in divinity, or a friendly chaplain at Lambeth to a candidate for holy orders. But suppose this preliminary examination conducted by the tongue of a well-fee’d advocate: alas! what would all the science of the tender student avail against the sharpness of so penetrating a probe! Conceive a Garrow opposed to the tender novice: how little would it cost him to drag to light either some jeofail in her creed, or the confession of a fact which, in the case of her making a tolerable primâ facie answer, could never be otherwise than true; viz. that she had been tutored for the purpose.
By considerations of the above, or some other nature (that is to say, by some of them,) an impression appears to have been made on reverend minds. Mr. Justice Rooke,* in the case of an unsatisfactory response, adjourned the cause, and committed the young witness to the charge of a clergyman, for religious instruction, in the mean time. This succedaneum to exclusion obtained the approbation of the other judges.
To the impressing upon the memory the lesson to be given by the reverend divine, six months’ interval between circuit and circuit was, if diligently employed, extremely well adapted: it would have been equally well adapted to the rendering the fair and tender reporter more and more perfect in any fabricated story of an injury, supposing no injury to have been sustained. But, on the opposite supposition, for the keeping alive in the infant memory a correct recollection of the transaction in its true and proper colours, the disservice that could not but be done by this long interval presents itself as equally indisputable. In this point of view, an expedient, of the sincerity of which, in its design, it is impossible to entertain a doubt, presents itself as being, in its tendency, extremely well adapted to every purpose of falsehood and injustice, and equally ill adapted to every purpose of truth and justice.
The case is unhappily of no unfrequent recurrence. Justice is wanted for it, if for any case. It is with this as with most other points of procedure: the difficulties it is encumbered with, are chiefly, if not wholly, the work of artifice and science. In itself it presents little difficulty. If mendacity were apprehended, who would not rather have to encounter a raw and juvenile prevaricator, than a reflecting veteran, with length of experience and maturity of age?
Where evidence is concerned, the duty of learned judges (such has ever hitherto been the case) forbade them to do justice. Their duty is to preserve existing rules: and existing rules were made that justice might not be done. In a case of this sort—where evidence of this description was a chief ingredient in the composition of the mass of evidence,—if it were lawful to discover truth, truth might be discovered with at least as much facility and certainty as in the case of ordinary evidence. The fact, if there be anything serious in it, is established by real evidence—by the physical and physiological marks of violence. Here we see one of the perpetually-recurring cases, in which all doubt might so easily be removed, one way or the other, by the examination of the defendant. The examination of the child being taken out of the hearing of its parents, on the one hand, of the defendant on the other—that of the defendant out of the hearing of both,—the light of truth could scarce fail to issue from the collision of the evidence.
Where immaturity of age does not exist in any such degree as to deprive the child of the several degrees of the respective faculties concerned (perception, judgment, memory, and expression) that are respectively necessary to bestow on the testimony the indispensable degree of correctness,—the want of the faculties necessary to the execution of a successful plan of mendacity, gives to such immature testimony, in a very material respect, the advantage of the maturest evidence.
In the immature and tender mind, if the influence of the moral and religious sanctions is apt to be weak, unsteady, and precarious, the mendacity-restraining influence of the physical sanction is stronger then than afterwards. Of memory, if deeply impressed and vigorous (as, in the sort of case in question, when taken fresh, it can hardly fail to be,) the expression is delivered without effort. Invention, under the perpetual condition of not being true, and yet appearing to be true, is the work of anxious and unremitting labour: the less the mind is exercised in the habit of reflection, the more apt will it be to sink under the trial.
By the power of the political sanction, concentrated in this case in all its plenitude in the hands of the domestic ruler, the will of the patient might be acted upon (it is true) with a mendacity-promoting force superior to any that may be expected to bear upon the patient in an adult state, in a state of comparative independence. In few adult minds is any other fear so strongly impressed, as the fear of the rod is, in general, capable of being impressed on the infant mind, by a severe and steady hand. But the disadvantage to which, in this case, the interests of truth and justice are subjected by the weakness of the volitional faculty, may be expected to be at least compensated for by the weakness of the intellectual faculty. The child strives to lie as well as it is able; but under the opposing force of cross-examination, it is unable to lie with effect.*
This much in regard to the case of infancy, which is (as already observed) the only case of imbecility which has been taken for a ground of exclusion by English law.
A case, however, presented itself not many years ago, in which a witness was rejected, not indeed on account of imbecility, but on the analogous ground of a supposed deficiency of appropriate knowledge.
Indictment of a woman for bigamy. Rex v. Eleanor Whetford, Guildford Assizes, Saturday, 9th August 1806, before the Lord Chief-Baron. (Times and Morning Chronicle, 11th August, both in the same words.) The first marriage, or supposed marriage, the parties both English, at Gretna Green, in Scotland. The celebration of the ceremony, in the manner usual in Gretna Green marriages, proved by the habitual operator, the vicepriest, a tobacconist. “David Laing, the Gretna Green parson, was first called. He stated that he performed the ceremony over the prisoner and her husband, in his way; that was, he read nothing, but he said something off the tongue, and authorized them to cohabit together.”
The Lord Chief-Baron said he would not admit this as a marriage. He asked him what he was. He replied, a tobacconist. His lordship observed, that a fellow or two, like the witness, did these sort of things; but both himself and the parties were liable to punishment.
Here, then, the fact was out of dispute: the guilt, in a moral view (to say nothing of the religous,) equally out of dispute: yet the judge acquits the prisoner—acquits her for evermore. Why? Because the state of the law, in respect of the validity of the marriage, was not, according to the conception of the learned judge, proved by a proper sort of person. “He would not receive the law of Scotland from a tobacconist.” What? nor yet from anybody else? That “both the fellow and the parties were liable to punishment,” so much his lordship knew. So much he knew, but exactly at that point stopped his lordship’s knowledge: and, what is more, exactly at that point commenced his determination not to know.
By a special verdict (not to mention other means in use,) he might have been informed: and by the same regular course, information of no slight importance to the whole country might have been gained.
In the case quoted above out of Gwillem,* a step altogether out of the regular course was taken. The evidence appeared not sufficient for conviction: what was the regular consequence? That the prisoner should be acquitted. Instead of that, the trial is put off to the next assizes: the defendant, guilty or innocent, in prison all the time. The proceeding was reported to the twelve judges: it was approved by them: it was therefore legal. Of these twelve reverend and learned persons, the Lord Chief-Baron himself was one. Had he thought of this when trying Eleanor Whetford, he would have learnt that there are middle courses between instant conviction and instant acquittal, if the learned judge thinks proper to employ them.
Delay, and of the same length, in the one case created, in the other case not created. When created, to what end? That an infant, under seven years of age, might, at the option of its parents, be instructed in theology, or in mendacity, or in both; while the memory of the supposed fact had, if real, all that time to fade in. When refused to be created, what were the circumstances under which the omission took place? When the point that might have been aimed at by the delay would have been accomplished by it with the utmost certainty—accomplished to the satisfaction, not only of the public at large, but of the learned judge himself: for (says he) “if you have any advocate of character, I will receive his testimony.” Was there, in the opinion of the learned judge, any such universal perversity at the Scotch bar, as that no advocate of character would be to be found, who, in relation to this point of Scottish law, would be to be prevailed upon to give his opinion (to the present purpose called his “testimony”) for his fee?
In the former case, the defendant [witness] was “a fellow that did those sort of things:” in the Guildford case, “the defendant was a young lady of handsome person and elegant manners; and her appearance at the bar excited considerable sympathy on her behalf in the spectators in court.”
Why mention this circumstance? I mention it, in addition to what has already been said on that subject in another place, that it may be seen so much the more distinctly, how easy it is, under the existing system, for a judge, in meting out justice, to have two measures: one for “fellows,”—another for “young ladies of handsome person and elegant manners:” and with what unhappy success, power, in reality arbitrary, has been covered up from observation by technical forms.
By the description of the person of the defendant in the Guildford case, the recollection of the classical reader is naturally sent back a few thousand years, to the incident which, in all subsequent causes, involved the proceedings of the court of Areopagus in habitual darkness. Of course, “the handsome person and elegant manners” of defendant Eleanor Whetford cannot possibly have exercised on the decision at Guildford any such influence as, in the case of Rex v. Phryne, proved so salutary to the defendant Phryne, and so fatal to justice, under Athenian judicature.† Concerning living judges, where anything of moral blame would attach, fiction herself is silent: but, as over departed ones, history, so, over future contingent ones, fiction at any rate, maintains an undisputed power. Availing myself, then, on the present occasion, of the right of fiction (for, abhorring it as exercised for any purpose of judicature, I have not the least objection to it for the purpose of argument,) the use I make of it is this: viz. that, under the law of England as it now stands (viz. in virtue of the features above described in it,) an English judge is at least as much at liberty as the judge of any other country, in pronouncing his decisions, to consult (not to speak of his pocket) his party, his humour, or his taste; and that, on condition of looking grave all the time, and pronouncing certain combinations of learned words, such as never can be wanting, he will find no more difficulty in acquitting beauties than in browbeating fellows. Not but that, so far as concerns the bare possession of the jus nocendi, truth might serve a man for predicating it of all alike, the living and the dead: it is only when the faculty is to be spoken of as being in actual exercise, that truth will decline to serve you, recommending it to you to employ fiction in her stead.
[* ]Leach, i. 430. White’s case, notes.
[† ]Gwillem’s Bacon (edit. 1807,) ii. 577. Leach’s Crown Cases, i. 237. Brazier’s case.
[‡ ]Leach, i. 199.
[∥ ]Leach. i. 200.
[* ]In relation to the principal point, at one time the practice was, instead of examining the child itself, to examine the parents or other persons as to the account which, immediately after the transaction, had been given by the child to them. To this sort of evidence, the examination of the child itself in court was afterwards added or substituted: if added, with indisputable propriety; not so, if substituted, to the absolute exclusion of the hearsay evidence: since, for infirmation or confirmation of evidence, the occasional use of hearsay evidence is not only indisputable, but recognised in practice. In regard to the principal fact, the reason assigned for the preference thus given to the evidence of the child itself, was, that that of the parents, &c. was but hearsay evidence. In regard to the incidental fact (the instruction given to the child,) the same consideration might have suggested the propriety of examining the parents themselves in preference: the account of what instruction they had given to the child, would come from their lips in the shape of immediate evidence; from the lips of the child, the only shape in which it could come would be that of hearsay evidence.
[* ]Gwillem’s Bacon, ii. 577.
[* ]From the Asiatic Annual Register for 1802, pp. 132-144. Indictment for murder: Rutney, a boy of seven years old, brought forward by the prosecutors to give evidence against the prisoners, one of them his own mother (p. 138.) To the preliminary examination, nothing could be more satisfactory than his answers. “He seemed completely aware of the guilt of telling a lie; and distinguished the punishment due to simple falsehood, and to falsehood upon oath, by saying, that a person guilty of the one deserved to be flogged, but that those who were guilty of the other ought to be hanged. His general notions of right and wrong were equally correct, and all his answers were given in the most firm and undaunted manner.
[* ]Vide supra, p. 430.
[† ]Potter’s Grecian Antiquities, i. 105. Lucian in Cataplo.