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CHAPTER I.: VEXATION TO INDIVIDUALS ARISING SOLELY OUT OF THE EXECUTION OF THE LAWS, NOT A PROPER GROUND OF EXCLUSION. - 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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VEXATION TO INDIVIDUALS ARISING SOLELY OUT OF THE EXECUTION OF THE LAWS, NOT A PROPER GROUND OF EXCLUSION.
It has already been proved—that is, observed (for surely this is one of those cases in which to observe is to prove)—that there are cases in which exclusion of the evidence, on the ground of the vexation inseparable from the delivery of it, is a proper measure;—viz. where the collateral mischief consisting of the vexation is preponderant over the direct mischief produced by the chance of misdecision or failure of justice resulting from the want of the evidence.
It was, at the same time, and in the same way, proved, that there are cases in which such exclusion, bottomed on that same ground, is not a proper measure;—viz. all cases in which the balance as between the two mischiefs is on the other side.
The several cases in which the mischief of the vexation resulting from the delivery of the evidence is capable of being preponderant over the mischief of misdecision or failure of justice for want of the evidence, have this common property,—viz. that the vexation is produced by circumstances entirely independent of the uneasiness produced by the obligation of making any disclosure, the effect of which is to subject the proposed witness, or any other person, to any punishment or other burthensome obligation, to which it is the intention of the legislator that he should be subjected. It is produced, in all these cases, by circumstances accidental and extrinsic: for example, disproportionate expense by reason of a long and expensive journey or voyage; irreparable loss of time; disclosure of collateral facts, such as a third person has no right by law to be informed of.
Besides these accidental lots of vexation, there is, however, one, which may be considered as naturally, and in the ordinary course of things, attached to the obligation of giving evidence: and that is, the thought of the unpleasant and more or less prejudicial consequences, which the evidence may have the effect of producing, to the prejudice of the proposed witness himself or some other person, by reason of the execution of a judicial decision, of which such evidence may constitute, or help to constitute, the ground. By the idea of such consequences, considered as liable to be produced by the evidence, an unwillingness to deliver it (which is as much as to say, vexation in the event of its being delivered) will, in many cases, be produced. Concerning this unwillingness, indubitable or presumable, a notion has obtained, that, in many if not in all cases in which the existence of it is regarded as certain or probable, it constitutes of itself a sufficient reason for excluding the evidence to which it is regarded as attached. And, in one of the most enlightened nations of Europe, this notion, having been adopted by judges, and, under their authority having formed itself into a rule or maxim of jurisprudential law, has constituted the basis of an arrangement exercising a most extensive and important influence over the whole fabric of the law of procedure. Regarding it as one of the most pernicious and most irrational notions that ever found its way into the human mind. I propose to allot this whole Part to the task of sifting it to the bottom, in the hope that the labour employed in a task at once so important and so new, will not be regarded as ill-bestowed.
To constitute a just ground of exclusion, the lot of vexation here in question must be a mass of that evil over and above what would have been produced by a decision to the same effect grounded on other evidence—on any evidence to which the lot of vexation in question would not have been attached. For, supposing the exclusionary notion to extend to all other evidence—to other evidence at large—to whatever vexation might come to be produced by evidence of whatever description, having the effect of subjecting some person or other to the punishment or other burthensome obligation in question,—to say that, in consideration of the vexation thus resulting, no such evidence ought to be received, would be as much as to say, there ought not to be any such thing as a punishment or other burthensome obligation ever imposed; in a word, that there ought not ever to be any such thing as a law.
But (it may be said) there are such things as bad laws: and in no country is the body of the laws altogether free from them. Now, the effect of the practice which, in opposition to the exclusionary rule in question, forces testimony from persons of all descriptions, without regard to unwillingness and consequent vexation, is, to give to whatever substantive laws it is employed in giving execution to, a degree of efficiency much beyond what they would possess in the opposite case. But, by giving this extraordinary degree of efficacy to all laws (substantive laws) without distinction, it will give the same degree of efficiency to as many bad laws as it happens to the aggregate body of the laws to include: and forasmuch as in every existing system the extent of this mass of bad laws is more or less considerable, the mischief of the practice against which the door is shut by the exclusionary rule would be proportionably great.
In the character of an argument in favour of the exclusionary rule, the defect of this argument will, I imagine, be found apparent upon the face of it. But inasmuch as, when sifted to the bottom, it will be found to lead to discussions of a very delicate and important nature, I do not propose to leave it ultimately in its present state, to stand altogether upon its own strength or weakness. For the present, however, confining the examination to the question immediately appertaining to the present Book, I shall content myself with bringing to view, by way of answer, the following observations: viz.—
1. Supposing that, for the accomplishment of the purpose stated in the argument, the exclusionary rule is, upon the whole, well adapted, it can be so in no other respect than that of its operating in the character of a debilitative upon the whole of that portion of the body of substantive laws to which it applies; weakening their efficacy,—rendering them so much the less efficacious, in respect of the purposes which they respectively have in view. But, so far as this alone is considered as the result of the rule in question, and that result a beneficial one, it is no otherwise of use than as any other institution or arrangement would be of use, that should in an equal degree contribute to weaken the efficacy of the laws.
On one only supposition would the balance of its effects be on the side of benefit; and that is, if the aggregate body of the laws were so constituted, that the mischief resulting from such as are mischievous, outweighs, upon the whole, the good resulting from such as are of a beneficial character. But, that, even under the worst government of which any accounts are extant, the supposition here in question was ever realized, seems altogether improbable: for, on this supposition, a state of anarchy would be less mischievous than—would be preferable to—such a state of government.
2. The person to whom it is proposed to form his opinion, and consequent decision, respecting the propriety of the exclusionary rule, is the legislator. In the political state in question, either that rule is not as yet established, or it is already established. If not, then, considered as addressed to the legislator, the argument stands thus:—
Monitor. In the state subject to your authority there are a multitude of bad laws: to weaken their efficacy, please to establish this exclusionary rule.
Legislator. Excuse me. Of such laws, if any, as in my judgment are bad laws, I shall not content myself with weakening the efficacy; I shall abolish them altogether. In regard to such of them as in my judgment are good laws, I should be sorry to do this, or anything else, that should in any degree weaken their efficacy.
Shift now the scene to a state in which the exclusionary rule has already been established:—
Monitor. In the state subject to your authority there are a multitude of bad laws. It has been proposed to you to abolish the exclusionary rule. Do no such thing: it is a most useful rule; it serves to weaken the efficacy, and thus to diminish the mischievousness, of your bad laws.
Legislator. Thanks for your caution. But being also fortunate enough to have a multitude of good laws, my wish is, to give to those good laws the highest degree of efficiency they are susceptible of. The effect of this exclusionary rule which you are so anxious to preserve, is (taking your own account of it) to weaken the efficacy of whatever laws, good as well as bad, it is applied to. Taken in its natural state, and unless subject to limitations to which you do not propose to subject it, it applies to all laws, and weakens the efficacy of all: it is for this reason I mean that it should no longer have any application to any of the good ones; and it is in that view that I mean to abolish it altogether. As to the bad laws. I shall not content myself with weakening their efficacy: convince me of their badness, and I shall abolish them.
Monitor. But, among those laws which in your judgment are bad ones, and which accordingly you propose to yourself to abolish, may not there be some, which, regard being had to the affections and prejudices of the people, it would appear to you not advisable to abolish?
Legislator. I should be sorry to find any such: but if such there be, there are several courses, any or all of which I should prefer to the giving up the benefit of the increase which the abolition of the rule would give to the force of such of the laws as to me seem good ones.
1. I would cause to be laid before the people the reasons by which my disapprobation of such laws as to me seem bad ones was produced. Having operated upon my mind, probably enough they may operate on other minds; especially as coming from a station from whence, if tolerably well dealt with, men are apt enough to take their opinions as well as their laws. And, moreover, should it so happen, that, by my reasons thus made known, any others should be brought forth, that in my maturer judgment should prove preponderant over mine, I propose to myself to take the opposite course; viz. to go over to the side of the people, instead of their coming over to mine.
2. In the meantime, if I despaired of being able either to bring over the people to my opinion, or to carry over mine to theirs, I could, if I thought it worth while, leave the debilitative rule to apply itself to the particular laws thus appearing to me to be bad ones. Leaving these laws in that state and degree in which I found them, the people would have no reason to complain of me; and, barring the operation of the rule in debilitation of my good laws, I should give to them all the operative force which it is desirable that good laws should possess.
In the case where the evidence in question is of the self-regarding, the self-criminating kind,—if testimony extracted from a man’s own lips were attended with any the smallest degree of probability of unjust suffering on his part, over and above that which results from testimony extracted from an extrancous and indifferent witness, there would then (on the ground of danger of deception and consequent misdecision) be, in point of reason, a ground, not for exclusion indeed, but, however, for suspicion and cantion more than ordinary on the part of the judge. But who does not see that the supposition thus brought to view for the purpose of illustration and argument, is a supposition which holds good, not in the present case, but in the case directly opposite, viz. that of self-serving testimony? with only this difference, that, whereas in that case there is only a chance of the existence of falsehood on that side, there is a certainty of the non-existence of it in the present case. It is not every man that will swerve from the truth for his own advantage: a man of entire probity will not, to the value of a hair’s-breadth. But there is not that man breathing, who, being in his right mind, and having his own interest alone at stake, ever will knowingly swerve from the line of truth to his own disadvantage.
There is but one sort of evidence which, practically speaking, is free from all danger of producing deception by mendacity; and this is the sort of evidence upon which an exclusion has been put by English lawyers.
Two men have each committed an offence, or done, each of them, an improper act of any other description—an act which in both cases is improper in the same degree and the same way. In the instance of one of them, it so happens that the act can be proved against him without resorting to his own testimony: in the other instance, so it happens that, though with the help of his own testimony it would be proved upon him, yet without that help it cannot. Is there any earthly reason why the lot of one of these men should be better than that of the other? why his suffering should be in the smallest degree less? Yet, under the exclusionary rule, one of them suffers not merely less than the other, but absolutely nothing; while his not more guilty fellow suffers the full rigour of the law.
Cross and pile (whether antecedently or subsequently to conviction) would not, by man in general, would not certainly by English lawyers, be regarded as a just and proper method of determining, amongst two or more equally guilty, which should and which should not suffer. Cross and pile, when called in by the common sense of jurymen for their relief in a situation of honest doubt, has been reprobated with indignation by their learned and official directors. But, in the case here in question, acquittal by cross and pile would be a signal improvement, if substituted to acquittal by the force and virtue of this exclusionary rule. In cross and pile, the naturally-sagacious or learnedly-instructed knave would not behold any means of safety more open to himself than to his less instructed fellows: whereas, it is the nature of the exclusionary rule to operate as a licence for delinquency to all those whose astuteness, seconded by ordinary good fortune, enables them to take advantage of it. Who shall count the multitudes that day after day have been acting under this licence? For it is among the properties of this invitation to guilt, that those who act under it with most felicity and success are those who enjoy the ulterior advantage of not being known to have acted under it.
That, under the protection of this licence, the impunity of the wicked may be as complete, and the encouragement to wickedness as inviting as possible, malefactors and lawyers have joined in another practice. Under circumstances of notorious delinquency, liberated in virtue of this or any other incident foreign to the merits, malefactors may be seen everywhere holding their heads high, and (as often as occasion presents itself) assuming the port and language of injured innocence. Accordingly, when a delinquent has been thus fortunate, to speak of him in the character of a delinquent is an offence punished, and with equal rigour, as in the object of the imputation had been a character of the purest innocence. In a place where (happily for the existence of society) the offensiveness of unwelcome truth to the feelings of evil-doers does not enable them to transfer upon their censors the punishment due to themselves, what a clamour was once raised by the appellation of acquitted felons! As if an acquitted felon was a sort of animal no more capable of finding itself in existence on English ground, than a spider was supposed be in Ireland. All this while, under the genial influence of this and so many other rules so ingeniously and successfully directed to this end, acquitted felons and acquitted malefactors of all sorts and sizes are as much at home in the British Isles, as venomous serpents in Guiana, or crocodiles in the Nile. In a relaxed constitution of the body politic, acquitted and unprosecuted malefactors of all kinds are no less congenial to that artificial body, than, in a constitution of the same character, the tænia, the lumbricus, and the ascaris, are to the natural body. In one particular, the parallel discovers an unhappy failure. In the natural body, it is not in the power, and as little (let us hope) in the wish, of the licensed practitioner, to propagate the breed of the vermin to the plague of which it is exposed: whereas, in the political body, by the instruments which there has been such frequent occasion to bring to view, we have been seeing the hand of the practitioner occupied, with unwearied perseverance, in sowing the seeds of wickedness in every imaginable shape.