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CHAPTER V.: PROBABLE ORIGIN OF THE ABOVE EXCLUSIONARY RULES. - 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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PROBABLE ORIGIN OF THE ABOVE EXCLUSIONARY RULES.
We may now take our leave of the two Latin maxims, under which, when laid together, little less than the whole subject of the present Book may be comprehended:—
1. Nemo debet esse testis in propriâ causâ.
2. Nemo tenetur scipsum prodere.
Of each of them we see that—
1. In the character of a general declarative proposition, undertaking to represent the actual state of the established law, it is notoriously false; it swerves most widely and notoriously from the truth.
2. That, when compared with the ends of justice, and the dictates of utility in that behalf, it is, in so far as the fact declared by it is true, deplorably pernicious.
3. That, in delivering these rules (each of them) as true without exception, as Blackstone (for example) and so many others have done, they have uttered so many most palpable and notorious untruths; trusting—for the reception of the propositions in the character of true propositions, and for their own escape from the disgrace generally and worthily attached to improbity in that disgraceful shape—to the confusion in which the subject has been involved by their arts: and to that general and indefatigably cultivated ignorance, by which all who do not stand engaged by sinister interest to defend and propagate the misrepresentation, are debarred and disqualified from detecting it.*
4. That, in favour of the rule pretending to oppose an effectual bar to self-disserving, under the name of self-betraying, testimony, the plea of humanity and tenderness is a mere pretence.
5. That, by the unhappy success with which this pretence has been played off, a most pernicious and widely spread correspondent superstition has been propagated and rooted in the public mind: insomuch that the people, having been generally duped by this imposture, have been to such a degree deceived, as to regard with emotions of respect and gratitude the treachery by which their dearest interests have thus been sacrificed.
The truth of the above propositions is, it is presumed, tolerably well established. But, being thus mischievous, how came it to be established? By what considerations did it recommend itself to the minds of those by whom it has been established?
Interest, sinister interest, though in every country it will account so satisfactorily for the jurisprudential system, will not afford a separate account for every particular arrangement. In some instances, interest would really be neuter: in others, its indications might fail of being perceived: and wherever there is nothing to be got by thwarting public opinion, there is everything to be saved by conforming to it.
The maxims, or general propositions, to which the most extensively applicable notions of jurisprudential law have been consigned, have owed their origin (when not to official and sinister interest) to some play of the affections or the imagination—to some antipathy, sympathy, or caprice—now and then to some view of utility, though almost always either too scanty or too wide. For the times when these maxims have been formed have been times of inexperience—times in which, for want of the requisite mass of experience, something was omitted, that required to be either added to the extent of the proposition or subtracted from it, ere it could be rendered commensurate to the exigency of the public interest on that ground.
Suppose the maxim to have had its root in general utility. By the inordinate extent assumed by it, it would spread far beyond the root; including particular propositions in abundance, for which no root could be found either on the ground of utility or any other.
From the observation of the prevalence of self-regarding interest in every human bosom (a principle upon which the individual and the species depend for their preservation,) and of the undesirable influence which this principle was so apt to exercise upon human testimony,—judges—men delegated by the sovereign to dispose of the fate of others for whom they had no regard, sometimes by punishing their offences, sometimes by terminating their disputes—formed to themselves, at an early period, this general proposition or maxim,—No man ought to be a witness in his own cause. It is susceptible of more senses than one: but in no sense would it ever have gained footing, had it not been for the indifference of those by whom it was applied, to its effect upon the feelings and interests of those to whose concerns it was applied. At bottom, in the breast of the judge by whom it was first broached, it could have had no more warrantable origin (whether he were or were not aware of it) than that of a desire to save his own time and trouble: for, be he who he may,—let his existence have occupied this or that portion of space and time,—what he could not but be conscious of, is, that in those instances in which, having a real interest in forming a right decision, he has felt a real anxiety to render it conformable to the truth of the case,—in a word, as often as, in the character of the father or master of a family, he has been really solicitous to come at the truth, and the whole truth,—his conduct has never been such as this maxim prescribes. Pursue its application to the daily concerns of a family, and extend it to every family, you will find it incompatible with the existence of the species for any considerable length of time.
Whatever was the real reason,—the ostensible reason, the reason assigned to the public, is evident enough: the danger of deception—the danger lest the judgment of the judge should be misled, by testimony issuing from a source from which it was so liable to receive a direction deviating from the path of truth, the only path that leads to justice.
In this way the system of exclusion first introduced itself: attaching upon both parties in a cause, defendant as well as plaintiff; but in the first instance, and with greatest effect, upon the plaintiff, with whom every suit originates: upon the testimony of the plaintiff, considered as proffered by himself.
By favour of the weakness of the human mind, and the indistinctness and variability of language,—under the influence of supervening circumstances,—maxims (more especially maxims of jurisprudence) have received an extension, sometimes for the better, sometimes for the worse. By the maxim of English constitutional law, “the king can do no wrong,” nothing more was probably meant by the first framer of it, than to express the inviolability of that functionary: under favour of the ambiguity of the sense attached to the word can, some opposition lawyer of the day took occasion, by a happy exertion of professional art, to graft upon that manifestation of power a declaration of impotence. Had lawyercraft never exerted itself to any worse purpose, the demand for these pages would never have existed.
From the observation of the perturbation that would naturally manifest itself in the countenance of a malefactor, when questioned on the subject of his misdeeds, some judge (actuated by misapplied compassion, or possibly by corrupt partiality, or society in guilt) took occasion to desist from the inquiry, grounding the dereliction, perhaps, on a new and strained interpretation of the maxim, No man ought to be a witness in his own cause. If the practice originally rested on that ground, it did not long remain there; since a fresh ground was made for it in the narrower and more apposite maxim, No man is bound to criminate—or (in language more rhetorical, more delusive, and therefore better adapted to the purpose) to accuse—himself.
Be this as it may; the system of exclusions came in this way to be extended to the testimony of a defendant, considered as called for, against his will, by his adversary the plaintiff, or by the judge.
The case thus far under consideration is a simple case: parties, at most but two; one on a side. In a suit of the criminal kind, instituted and carried on by the judge alone, without the intervention of any individual in the character of plaintiff, the number of the parties is even reduced to one.
In a case thus simple—so far as exclusion takes place—there can be no room for doubt (as far as utility, or the semblance of it, is concerned) in which quarter (that is, in which of the two maxims above mentioned) the prohibition originates. Is it by the party himself that the judge is called upon to receive his testimony? Fear of deception is the reason or the pretence, and the maxim is, No man ought to be a witness in his own cause. Is it by the adverse party that the judge is called upon to receive, and (as it is not in the nature of the case that it should be delivered willingly) to compel, the testimony? Fear of vexation is the reason or the pretence, and the maxim is, No man is bound—or, No man ought to be bound—to criminate, accuse, or (to slide it on to non-criminal cases) hurt, harm, injure, prejudice, himself.
But, for this long time, causes have from time to time appeared, of a more complicated texture: causes presenting, either on one side (and on either side,) or even on both sides, parties in greater number: two, or a number indefinitely greater; but on this occasion, for exemplification, two will serve as well as twenty.
Suppose two on each side: what is to be done here? Apply the true reason, fear of deception, fear of vexation; you will now find cases in which they will not hold. No matter: the maxim is framed; it has attained its full growth: it has taken root of itself: it has become familiar to many a tongue, the head containing which saw no reason for it, nor ever thought it worth while to look for one.
If this be so, on this ground then we must look for the origin of the practice in one or other of the two maxims; giving up the idea of looking for a reason, in the conduct of men to whom it never occurred to look for a reason—to look for anything beyond the rule.
OF DISGUISED EXCLUSIONS.
[* ]Blackstone scruples not to assert, in express terms, that “the law of England . . . . to avoid all temptations of perjury, lays it down as an invariable rule, that nemo testis esse debet in propriâ causâ.”—Comm. iii. c. 23 (p. 371.)