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CHAPTER III.: EXCLUSION PUT BY BLIND ARRANGEMENTS OF PROCEDURE UPON INDETERMINATE PORTIONS OF THE MASS OF EVIDENCE. - 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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EXCLUSION PUT BY BLIND ARRANGEMENTS OF PROCEDURE UPON INDETERMINATE PORTIONS OF THE MASS OF EVIDENCE.
A proposition that seems neither to require, nor (any more than a postulate in geometry) admit of proof, is, that every arrangement of procedure, the effect of which is to exclude an indeterminate portion of evidence—of that stock of evidence, which the cause, in the individual instance in question, happens to afford,—and that, too, without the plea of preponderant inconvenience in the shape of vexation, expense, and delay,—is irreconcilably repugnant to the ends of justice. In every cause to which the operation of the principle of blind defalcation happens to extend, the effect of it is, to reduce to an equal chance whatever preponderant probability of success a good cause may, under the system of procedure in question, give a man as against a bad one.
Such is the result, and such the mischief, supposing the composition of the defalcated mass to depend altogether upon blind chance. Suppose, on the other hand, that it is capable of being influenced by arrangement—by arrangement on the part of either of the parties,—the probability of success, instead of being equal, will be preponderant in favour of injustice. He who, being in the right, is persuaded of his being so, will not naturally have recourse to this or any other sinister artifice: at least he will not be urged so to do by so strong an impulse as that by which the opposite party, supposing him to be in the wrong, and conscious of being so, will be urged.
Had the ends of justice been, in every country, the ends to which the system of procedure had, in the course of its formation, been directed, no arrangement pregnant with any such effect would perhaps any where have been established. But in no country has the predominant part of that system been really directed to those ends: accordingly, arrangements pregnant with that absurd and pernicious effect are to be found established in both of the two systems of technical procedure, between which the more enlightened part of the population of the globe has, in such unequal proportions, been divided.
In the Roman system may be seen one example of an arrangement, by which an indeterminate portion of the obtainable mass of evidence is shut out.
In the English system may be seen an example of another arrangement, which, discordant as it is with the Roman in other points of view, agrees with it in this.
The Roman arrangement here in view, is that by which, whatsoever part of the evidence can by posibility be kept secret from the parties respectively (viz. every part of it but that which has been extracted from a party himself,) is, with the most anxious care, kept from the knowledge of both, until the time when the process of collection is closed.
From this arrangement is apt to result the exclusion of an indeterminate and indefinable mass of counter-evidence. The portion thus excluded is divisible into two distinguishable branches:—1. The additional mass, which, had the already extracted portion been known to them in time, might and would have been extracted by the parties respectively, whether from the witnesses on their own side respectively, or from those on the other:—2. Any such further portion as, in explanation, confirmation, or contradiction of the testimony actually delivered (as above,) might have been extracted from the bosoms of other witnesses.
Such, then, in a few words, is the effect: exclusion of ulterior evidence obtainable by counter-interrogation of the same witnesses; exclusion of counter-evidence extractible by interrogation and counter-interrogation from ulterior witnesses.
The English practice is that which, in civil cases, limits the mass of evidence to the quantity the delivery of which can be squeezed into the compass of a single sitting:* deducting the quantity occupied by the introductory statements made by the advocates on both sides, and the recapitulation made by the directing judge.
Of the nature of the mass of evidence thus shut out, it is not easy to give any the loosest estimate: not so much as the sort of estimate, than which nothing can easily be more loose, given of that which is shut out by Roman practice.
To assist conception, cross over from time to space. Suppose a court (and you need not look further than Westminster Hall to find four such) which, in the case of a cause of a nature to excite that sort of interest, on which the purity of judicial conduct so essentially depends, shall be capable of affording hearing and seeing room to no more than a tenth or a twentieth part of the numbers that would be there if they could. Nine persons out of every ten are thus excluded from the exercise of the functions of a member of the open committee of the public, charged with the inquiry into the conduct of the courts of justice. Who, in each individual instance, are the persons on whom the lot of exclusion falls? When for this question a precise answer has been found, on the back of it will be found an account of the articles of evidence excluded by that law of the judicial drama, which (substituting the dramatic unities for the ends of justice) requires the business to be compressed within the space of time during which a mixed multitude of persons are capable of continuing together in the compass of the same close room, without prejudice to the free exercise of their intellectual faculties.
Incompatible as this system of condensation is to the ends of justice, it wants nothing of that which is necessary to adapt it to the ends of established judicature. Sufficient or insufficient to the purpose or doing right to the parties, the time is never less than sufficient to the gathering in of fees.
The door,—does it happen to have been shut against this or that article of necessary evidence? So much the better. Then come other exigencies, far better adapted than any evidence to the use of lawyers. At law, necessity for new trials, and motions for new trials: in equity, necessity for bills of review, or bills partaking of, or in some convenient shape or other approaching to, the nature of bills of review. An entire cause, with all its evidence, does it happen to be shut out in the lump, because there was not time so much as for the opening of it? Causes are not like strawberries or mackerel: at the end of six months, or of twelve months, they are as fresh as ever; and then they come garnished with fresh fees.
It is only in causes of a complex nature, that the operation of this principle of exclusion can attach: causes which, whether in any other respect or no, are complex at any rate in respect of the number of witnesses from whom relevant evidence might have been extracted. Call twenty-four hours the utmost extent of a single judicial sitting. There are some causes (and of this description are the major part of the causes instituted,) for which a quarter of the number of minutes would be more than enough: there are others for which three or four times as many days might be a scanty allowance.
Where the allowance of time presents itself as insufficient, the quantity of evidence discarded by each party (at least if acting bonâ fide,) will naturally be that which in the judgment of the party can best be spared.
Of either party, if in malâ fide, one resource will be, the crowding in evidence in such quantity as to generate confusion; and, by blinding the eyes of those to whom it belongs to judge, to raise in this way the unfavourable prospect to the level of an even chance.
In any case, the undue advantage from the compression gravitates towards the plaintiff’s side. His evidence being the first heard, the more he introduces of his own, the less he leaves it possible for the defendant to introduce. Out of the supposed maximum of four and twenty, the greater the number of hours occupied by the one, the less the number left to be occupied by the other. The advantage of this policy will, however, be clearer, if the plaintiff who avails himself of it be in malâ, than if in bonâ fide: for, in the latter case, what he gains by the exclusion of his antagonist’s evidence, may be lost in some measure by the confusion produced by the multiplicity of his own.
In the midst of all this darkness, a difference may, however, be observed between the effects of the Roman, and those of the English practice. Of the disguised exclusions, wrapped up in the system of concealment, the influence extends, without distinction, to the most simple, as well as to the most complex causes: for upon the Roman plan of inquiry, there is never any want of time for the extraction of evidence, if the demand presented for ulterior evidence, by the evidence already extracted, were but known in time.
In the English mode, the genius of exclusion confines his operations (as hath been seen) to complex causes. The mischief produced by the English is, therefore, not nearly so extensive as that produced by the Roman mode.
The systems here distinguished by the names of Roman and English, are both of them (it must not be forgotten) alike in use in England. But on the continent of Europe, the Roman practice extends to all courts, at least to all regular courts: in England it is confined to the courts called equity courts and ecclesiastical and admiralty courts.
The compression (that is to say, the defalcation) produced by the rule which confines all causes to the short allowance of time above mentioned, is not, however, by any means the only defalcation to which, under the English system, the pabulum of justice is condemned. Those common-law causes alone excepted, which are furnished by the neighbourhood of the metropolis,—in the whole stock of causes, the mass of evidence is subjected to an ulterior compression and defalcation, to an amount equally indeterminable. A certain portion of time, two days or thereabouts, is allotted with the utmost regularity to whatever number of suits it may happen to a whole county, to a thirtieth part of England, to have supplied in the compass of half the year. Six hours, for example, may by this means be the whole allowance made to a cause, which, had the scene of it lain within the privileged spot, might have had the benefit of the full allowance, sufficient or insufficient, as above described.
In both cases, how fares it with the aggregate mass of causes, in number and bulk unlimited, shut up within a limited compass of time? As it fares with a multitude of men or other animals shut up within the walls of a town or any other boundaries, with a limited and insufficient quantity of food: their fate is disposed of by the three co-regent powers, force, fraud, and fortune: some batten, some are pinched, and some are starved.
Ever and anon, the fruits of necessity in this line are brought to light, as it were by chance. The nature of the cause opened, or begun to be opened,—Stop (cries the judge:) what sort of a cause is this to try! I can’t try it—not I; I won’t so much as attempt it: it is not to be done. Necessity, by which every thing is justified—necessity, thus invoked, comes in and justifies denial of justice. From a tribunal which does not afford itself so much as a possibility of doing justice, the cause is then shuffled off to another, which, having time for collecting evidence, wants nothing but the means: the cause is referred to unlearned judges, under the name of arbitrators: pressed by the tide of authority, though without direct and adequate coercive power, the parties (whether in bonâ or in malâ fide) are wrought upon, in some way or other, to consent to this arrangement: arbitrators chosen, one on each side: the foreman, or some other distinguished member of the jury: some advocate, mutually agreed on, as not being engaged on either side: nothing deficient but the power of compelling the production, and providing for the trustworthiness of evidence.* The instruments they possess for bringing the truth to light, are good against everybody but those who are dishonest enough to wish and endeavour to suppress it.
As often as this necessity betrays itself, just so often does it appear, that in cases of this description, trial by jury, conducted as it is conducted, is incompatible with justice. What matters it, in the view of lawyers and their dupes? What in their creed is this sacred institution? Not a means to an end, but itself an end. The use of judicature is—what? Not to render justice, but to make work for juries.† And why make work for juries?—Why but because trial by jury is trial with lawyers, with forms upon forms, heaped together for the use of lawyers?
The mutilation of the body of necessary evidence, or, in other words, the exclusion of an indeterminate part of it, has thus far been brought to view as an effect produced in every technical course of procedure. Two arrangements, one of the Roman, the other of the English system, have at the same time been brought to view in the character of so many efficient causes, by which that effect has actually been produced.
That, under the English system, the production of any such effect was, so much as in the anticipation of the authors, among the final causes of the arrangements themselves, is what there seems little reason to suppose.
But in speaking of the Roman system, the design of producing this very effect (pernicious as we have seen it to be) has been expressly stated as a final cause, or rather as the final cause, of the arrangement, the systematic concealment, by which the effect is produced. Concealment, a practice so natural to iniquity—a practice, unless under special circumstances and as against special mischiefs, so unnatural to justice, so abhorrent to the general complexion of English judicature,—required (it seems to have been thought) a reason to justify it in the sight of English lawyers, when the Roman system came to be planted in English soil.
Problem:—In all cases (except, in criminal cases the preliminary ex parte inquiry,) the receipt of evidence being public at common law; required, to find a reason for its being kept as secret as possible in equity. Such being, on one hand, the problem,—such was, on the other hand, the solution—the only solution that could be found for it.
First, let us observe the practice; then, Gilbert’s reasons for it.
State of the practice.
1. In the oath taken by the persons who to this purpose act as judges ad hoc (viz. in the district of the metropolis, the examining clerk—out of the district of the metropolis, the commissioners nominated by the parties) are these words:—“And you shall not publish or show the same depositions to any person or persons before publication in the court, without consent of the same court.”*
2. “Neither the examinations or depositions, which are taken by commission, can be published, in any case whatsoever, till publication is duly passed by rule in the office, or by motion or petition, for it may be done either way.”†
3. “And in this case” (viz. where the party applies to have the time for publication put off) “the plaintiff or defendant (as the case falls out) must make oath, and so must his clerk in court, or solicitor, ‘that they have neither seen, heard, read, or been informed of, any of the contents of the depositions taken in that cause; nor will they see, hear, read, or be informed of, the same, till publication is duly passed in the cause.’ ”*
Then comes a story of a solicitor, who, to prevent the solicitor on the other side from gaining the further time necessary to the examination of his witnesses, read over to him the depositions already taken on his (the reader’s) side.
Such being the practice, behold now the learned lord chief baron’s reasons for it:—
1. “If the commissioners on both sides attend the execution of the commission, and the one side examines, and the other neither examines nor puts in any interrogatories, he shall never afterwards examine, unless upon special order of the court, upon good cause shown; because he must not form his interrogatories upon the discovery made to his commissioners, of what the other side examined to.”†
2. “The fair examination by commissioners is not to adjourn without necessity; . . . . but if it be necessary, they may adjourn, not only in time, but place. And this affair must be performed, as far as possible, uno actu, that there be as little opportunity as possible to divulge the depositions, that neither side may better their proof.”‡
3. “If it shall appear to the court . . . . that the defendant’s commissioners attended during the whole time of the execution of the commission, and never exhibited any interrogatories, in this case the court will never grant the defendant another commission, and he must take it for his pains; since he lay upon the watch and catch, only to see what the plaintiff proved, and then, at another commission, to exhibit interrogatories adapted to such matters and questions as might tend to overthrow all that had been done; and he shall never be admitted to have this unfair advantage over his adversary: for if he is admitted, after having knowledge of all that his adversary hath proved, to exhibit interrogatories, he may easily conceive what interrogatories to exhibit, and how to hit the bird in the eye.”∥
Then, immediately after, follows a passage, to state, that, if a new commission is granted, no addition ought to be made to the interrogatories framed for the former one, “without special leave of the court; and [then] they are to be settled by a master, and are never done [i. e. this is never done] but in extraordinary cases.”
4. “Afterwards (after publication of the depositions already taken) there could be no examination of witnesses, unless by the special direction of the judge, upon good cause shown, and an affidavit of the party, that he, or those employed by him, had not, nor would, see the depositions of the witnesses which were published; by reason of the manifest danger of perjury and subornation of witnesses, in case examination should be allowed after publication.”*
5. One reason comes in the form of a parenthesis, and that parenthesis an assumption; the truth of the observation being supposed too self-evident to be disputed: “Since the very life and vitals of almost every cause, and of every man’s property, lies in keeping close, and secreting his evidence till after the depositions are published, because after that, there is an end of examining . . . .”†
The view taken by the learned jurist is altogether curious. That either of the parties should possess the possibility of “bettering his proof,”‡ he considers as a result fatal to justice: a result to be prevented at any price. For, of such melioration, what might be the consequence? “It might tend to overthrow all that had been done:” “the bird” (according to his ingenious metaphor) might be “hit in the eye.”∥
At the time of his writing this, or before, the learned author was head shopkeeper of that great double shop, in which common law or equity is served out, according as the one or the other happens to be bespoke by the plaintiff customer: for the clause in Magna Charta which precludes the sale of justice, precludes not the sale of common law, or of equity. On the common-law side, whatever truth is to be served out is warranted entire: the truth, and the whole truth, as well as nothing but the truth, are the words of the oath, expressive of what each witness undertakes for the delivery of. But to what purpose is it, that, from each witness, the whole of such part of the facts belonging to the case as happen to have come to his knowledge are required? To this purpose, surely,—viz. that, from all the evidence together, including the depositions of all the witnesses, the whole assemblage of facts which the case furnishes may be collected. What, then, on this occasion at least, is the aim of common law? To come at the truth entire. What, on the other hand, is the aim of equity? To get it mutilated; to get it in a state in which it shall, at any rate, be to some degree or other imperfect, and no one can say in how great a degree. Right and wrong shift their places or their natures, according as the judge sits as a common-law judge or as an equity judge: according as the article is served from the one counter or the other.
On the Tuesday, the learned judge, sitting at common law, grants a new trial. There his birds are set up by him, all in a row, though there be a thousand of them—set up like cocks on a Shrove Tuesday, ready to be “hit in the eye” by anybody who has a stone to throw at them. The next day the same reverend person sits in the character of an equity judge—and now secrecy is the order of the day; and now “the very life and vitals of the cause lies in secreting the evidence.”
But it such counter-interrogatories, or counter-evidence from counter-witnesses, were admitted, the danger of “subornation” of perjury, and of “perjury,” he says, “is manifest.”*
Yes, indeed—but too manifest. Open the door to evidence (meaning sworn evidence,) you open the door to perjury. Would you shut the door, shut it effectually, against perjury? Two ways are open to you, and both sure ones: shut the door against all sworn evidence, or shut it against all evidence.
But, when the mass of evidence thus to be shut out is anything short of the whole, observe the consequence. True it is, that in such evidence as is not produced, no perjury will be contained. But how is it in regard to the evidence which, being allowed to be produced, has been produced accordingly. Assurance against being cross-examined, against being opposed by counter-evidence; assurance against being exposed to contradiction, from themselves or others; security against ulterior contradiction from any quarter:—such is the security proposed as proper to be applied—such is the security actually applied, against mendacity and temerity on the part of witnesses.
That the arrangement proposed by the learned judge, in the character of a security, and that a necessary one, against the mischief of perjury, is naturally (not to say necessarily) productive of that very mischief, is not only manifest enough to everybody, but to nobody more so than to the learned judge himself. For by what is it, that, when one party only (say the plaintiff) has examined his witnesses, the commissioners of the other party (the defendant) having been present at such examination, the defendant is enabled “to hit the bird in the eye?” His commissioners, in violation of the letter of their oaths, communicate to him (the party) the depositions extracted by the commissioners on the other side: for, unless this were the case, whatever were the demand for such suppletory and complementory counter-evidence and counter-interrogation, the party could not have any knowledge of it. So that, in the perjury with which the arrangement is seen to be pregnant, consists the reason, and the only reason, given in justification of that very practice.
This precaution is exactly of a piece with the policy which, in some ages and countries, has, under the auspices of Roman law, governed the arrangements in criminal cases. The prosecutor, on his part, producing his evidence, the defendant, on his part, was not to be allowed to produce any. Why? Because, at this rate, the charge might come to be contradicted; a licence which was not to be suffered.
Being relevant, the ulterior evidence thus excluded, would it have been true or false? If true, no great harm, one should have thought, would have been done by it. If false,—but what is there that should make it false, this subsequent, rather than any antecedent, mass of evidence?
Evidence (the testimony of an extraneous witness) delivered in a preceding cause between other parties, is not received in a succeeding one. Why not? Because, in the preceding cause, the party against whom it operates in the succeeding cause had no opportunity of endeavouring at the correction or completion of it, by counter-interrogation or counter-evidence. In this case, the propriety of the exclusion is not in question here. What is to the purpose, is, that such is the established rule—established, not at common law only, but in equity.
The depositions having been published (i. e. communicated to the parties,) evidence respecting the character of each witness may be poured in without stint:* evidence on the one side attacking his character—evidence on the other side supporting it. Evidence of this sort, “generally speaking,” says the learned judge, “ends in nothing more than putting the party to an expense to no purpose.” Here, then, if superfluity of evidence were the mischief to be cut off,—here would be a species of evidence for the knife to operate upon. No such thing. Where the evidence is known, and known to be of that sort which is extendible ad infinitum, and after all of little or no use, no such idea is started as that of excluding it. Where the importance of the mass of evidence in question is beyond all estimate, then it is that it is to be barred out; and secrecy is the bar set up against it.
Those who introduced this arrangement into the system of procedure, gave no reasons for it: they did wisely;—they had none to give. On this, as on some other occasions, Gilbert has taken it into his head to give reasons:† here, as elsewhere, being given, they are worse than none. Under the technical system, the safe course, and the only safe one, to be taken with judges’ reasons, is the course taken with them in the House of Lords: to enter them as given, and to give none,—none at least which the subject, whose conduct is to be governed by them, and whose fate depends upon them, has a possibility of being aprised of.
[* ]Civil, as well as criminal cases, sometimes occupy several days. One of the trials at Lancaster, in the case of Tatham v. Wright, occupied nearly a fortnight.—Ed.
[* ]This defect is remedied by the 3 & 4 Will. IV. c. 42.—Ed.
[† ]Always understood, that in the progress of the cause no such word as the word equity be pronounceable. For, equity being still more propitious than law to lawyers, speak but the word equity, and the use of juries vanishes.
[* ]Gilb. p. 142.
[† ]Ibid. 144.
[* ]Gilb. 146.
[† ]Ibid. 131.
[‡ ]Ibid. 127.
[∥ ]Ibid. 137, 138.
[* ]Gilb. 120.
[† ]Ibid. 141.
[‡ ]Ibid. 127.
[∥ ]Ibid. 137, 138.
[* ]Gilb. 120.
[* ]Gilb. 147.
[† ]Ibid. 148.