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CHAPTER I.: PRELIMINARY OBSERVATIONS. - 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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Use of instructions from the legislator to the judge, relative to the probative force of evidence.
We have seen the causes—the psychological causes—by the operation of which on the mind of the witness, deception is liable to be produced in the mind of the judge: sinister interest, improbity, and imbecility,—to one or other of these we have seen all those causes to be referable. Had the immediate causes alone been to be taken into the account, the catalogue might have been still shorter: improbity might have been omitted; since it is only in as far as it is coupled with sinister interest—it is only through the intervention of sinister interest, that, to this purpose or any other, improbity is capable of operating in the character of an active principle.
We have seen that in no instance can any one of these circumstances be employed with propriety as a ground for the exclusion of any article of evidence. But what we have also seen, is, that there is not one of them by which a just cause is not presented for regarding the evidence with a suspicious eye; for regarding the trustworthiness of it as diminished by the influence of the circumstance. Hence the propriety of delivering a set of instructions to the judge, pointing out to his observation the source and degree of its inferiority in point of trustworthiness—of its tendency to produce deception; and thus putting him upon his guard.
For exclusion, substitute the rival remedy, instruction: nothing, it will be seen, can be more innocent; nothing, in every point of view, more unexceptionable.
In so far as the instruction is operative, all the good that could have been done by the rough remedy of exclusion, is done by this gentle and rational substitute.
If inoperative, inasmuch as the same line of conduct as that which is indicated and recommended by the instruction, would have been practised without it,—even then, and at any rate, it does no harm.
But, under the system of instruction, and in spite of the instruction—in this and that instance (it may be said) it may happen to the judge to give credence, or appear to give credence, to this inferior evidence; and thus being, in reality, or perhaps in appearance only, deceived and misguided by it, misdecide in consequence: an injustice which, if the deceptitious article of evidence had, by an obligatory rule of law, stood excluded, would not have taken place.
True: after hearing, under the system of instruction, an article of evidence that under the exclusionary system would have stood excluded, it may happen to the judge to misdecide. But so it may, and ever and anon does, happen to the judge to misdecide, after hearing evidence of a sort to which no exclusion has, under any system, been applied. Under the system of instruction, the judge has before him the instruction, which, in its nature, cannot be so much as intended to serve as a guide to the understanding of a judge, without also serving as a check upon his will-serving on each occasion to point the attention of the public to the course taken on that occasion by the judge.
Of the exclusionary system, in so far as it extends, the effect is to tie up the hands of the judge. It is the application of will to will—of arrogance to subjection—of a man without understanding, to another labouring (as he presumes) under the like misfortune. It is the policy of one to whose perverted optics all men are liars, and all judges fools. So many exclusionary rules, so many insults offered by the author of each rule to the understanding of those whose hands are expected to be tied by it. Coming from the legitimate legislator, addressed by him to his subordinate, the judge,—whatsoever self-conceit and rash presumption there might be in it, there would be, at least, no usurpation, no pretergression of the bounds of official authority: the hands he ties up are the hands of his constitutional subordinate—hands to which, be the occasion what it may, in some way or other he applies additional bands by every word he utters. But, in fact, so it is that (in England at least) the exclusionary rules have not, in any instance, had the will of the legitimate legislator for their source: in every instance they have had for their author some lawyer, in the character of a judge, who, tying or pretending to tie his own hands, has provided a set of manacles—ready made manacles, into which his successors, to save the trouble of thinking, have spontaneously introduced their hands.
But though in this, or in any other system of incongruous arrangements, the influence of folly ought never to be left out of the account, there seems reason enough to suspect, on the grounds so often already referred to, that, in the composition of this system, improbity, lawyercraft, acting under the spur and the direction of sinister interest, had an important share.
Hitherto, whether in the character of legislator or pseudo-legislator, man has manifested (and certainly not altogether without reason) less confidence in the ascendency of his understanding than in the efficiency of his will: had it been otherwise, laws would have been somewhat less numerous; instructions (I mean from the legislator to the judge) would not have been, as they are to this day, almost without example.
One consolation is, that, in the way of instruction, it is not altogether out of the sphere of industry and intelligence, though unclothed with power, to be of use. When the individual is out of the way, jealousy dies with him; and then comes the time for his words to pass for whatever may be their value. Among the living, wisdom is nowhere to be found but in the seat of power: she lodges under the privileged robes, and is passed from hand to hand, in company with seals and purses.
In the ensuing pages, a sample may be seen of the instructions, which, on the subject of evidence, it might be of use for the legislator to furnish, to serve as a light to guide the footsteps of the judge.
The more plainly true it may happen to them to be, the less extraordinary they will appear, and the less free from all pretension to be taken for anything beyond the obvious dictates of simple common sense.
In the case of a body of instructions,—supposing a code of that description to be inserted in the aggregate body of the laws,—one comfortable reflection presents itself, viz. that by this part no addition need, nor therefore ought, to be made, to that part which, in the shape of an inevitable load, is imposed upon the memory of individuals. The subject, the private citizen, as such, has no need to load himself with it; it belongs not either to the catalogue of his duties, or to the catalogue of his rights. The person whose judgment it is calculated to assist, is the judge, and no one but the judge: the person for whose assistance, in the way of instruction, it is designed, is the judge. To the individual it is of no use, but in the event of his having the misfortune to become a suitor: nor then, but in the event of his observing, on the other side, some witness or witnesses whose testimony he observes or suspects to be exposed to the action of some interest—some sinister interest, against the seductive influence of which it concerns him that the judge should be sufficiently upon his guard.
Instructions to the judge not given under existing systems, and why.
Under existing systems, when a lot of testimony, exposed on any particular score to suspicion, is brought forward, the grand, or rather only, object of consideration is, whether or no it shall be admitted. If admitted,—what degree of credit shall be attached to it (i. e. what circumstances there are in the situation of the witness, by which the degree of confidence that might otherwise be reposed in his testimony may be diminished,) is a topic scarce ever so much as glanced at. It is, accordingly, only for the purpose of serving as a ground of exclusion, that any circumstance, in the character of a cause of comparative untrustworthiness, is ever brought to view. If, in the character of a legal ground for exclusion, the circumstance is sustained, it is then pronounced an objection—a good objection—to the competency of the testifier: if in that character it be repelled, it is then said to be not good as an objection to the competency of the witness, but as an objection that goes to his credit; and in that character, if it be a jury-cause, to be considered by the jury.
Here then, and without any sort of instruction or assistance from the official judge,—the jury, by the light of common sense, are supposed to be natural, competent, and perfect judges of the degree of credence proper to attach to any the most suspicious evidence, against which the door of the witness-box is not peremptorily shut:—while, as to the question, whether it shall be heard or no, it is at the same time taken for granted, that they are radically incapable of forming any tolerable judgment, even with the help of all that official wisdom to which, where the question is concerning the interpretation to be put upon an article of law (whether jurisprudential, that is imaginary, or statutory, that is real law,) they are expected to pay the most implicit deference.
The question thus referred to the jury, one might here suppose, might be an occasion for the advocates on both sides to display their eloquence: on one side in exaggerating—on the other in depreciating, the force of the mendacity-promoting interest, or other supposed cause of untrustworthiness, whatever it may be.
In fact, an allusion of this sort cannot but now and then be made; but as for any argument at large—any regular debate, it may be questioned whether one instance of any such argument be to be met with anywhere.
The reason (one reason at least) seems not difficult to divine. Besides, the universal absurdity, so inconsistent are the exclusionary rules, that, while interests purely nominal, plainly incapable of exciting in the breast of any human being any the smallest particle of interest—of exercising in it any the smallest particle of influence, are received as grounds for absolute exclusion,—a dose of interest, compounded of the strongest ingredients that human nature furnishes, is not received in that character. The consequence is, that against calculation, comparison, ratiocination, the door is shut by a kind of instinct. Ground thus laid out is as unfit a field for rational argument, as a crowded china or glass shop would be for a fencing or a boxing match.
By the same considerations it is rendered pretty obvious how it has happened, that, for the guidance of the jury, little or nothing in the way of instruction can rationally be expected from a judge. Instruction to a jury from an English judge? Not a proposition—no, not a syllable, could he utter, on any part of the whole subject, without running full butt against some one or other of his rules—without proclaiming the absurdity and mischievousness either of some exclusionary rule, or of some exception taken out of it.
Well, therefore, may he leave this exercise of the judicial faculty to the jury—to anybody who will exercise it, or profess to exercise it: feeling, as he cannot but feel, his utter inability to afford to them any the smallest assistance, without exposing to merited contempt the system of doctrine to which he is tied down,—doctrines for which neither defence nor apology can be found by any human being, and of which, in his situation, it would not be decorous to speak the truth.
On the score of interest (for example,) to what use could it be for a judge to set about weighing grounds of objection, when in so many instances a party is admitted to testify in his own behalf, in his own cause?—on the score of improbity,—when a criminal, confessedly tainted with improbity in the highest degree, is admitted, under the impression of a mass of interest, of which one ingredient is itself the strongest that human nature can be urged by?
Thus it is, that by the learned judges feeling themselves completely unequal and radically incompetent to the task, it is abandoned altogether to that class of men—of ephemeral judges—whom (on pretence of their inability to understand those books, which, made or not made, promulgated or not promulgated, every man is punished for not understanding,) they are so forward on all other occasions to lead like infants in a string, frequently to pull them about and speak for them, as if they were puppets.
From such a source, it may now be imagined whether it be in the nature of things that any discourse capable of bearing the name or calculated to answer the purpose of instructions, should ever have come: whether from the bench, in bits and scraps, brought out pro re natâ, like the rules of their phantasmagoric system of law, to serve the purpose that happens to be in hand; or from the study, in the form of a treatise, from a learned author of whatsoever class, whether it be a briefless advocate or a superannuated judge.
Incapable of finding a source anywhere in jurisprudential law,—should such a body of instructions be looked for, with any better prospect of success, in statute law? But from what sort of person, then, shall it come?—from the attorney,—who, being paid at so much a sheet, exhausts his powers in the efforts made to find surplusage, screwing up to its maximum the multitude of the sheets?—or from the scantily-pensioned draughtsman, whose occupation it is, while an exhausted treasury is gaping for sustenance, to draw tax-bills against time; and who, never having opened his eyes to anything better, looks up to surplusage, to the works of the attorney, as the only models for his works?
From whom can any such information be looked for, but from one by whom the field has been surveyed, and surveyed in all bearings, with views directed to the ends of justice? But, under the fee-gathering system, in what corner of any inn of court or chancery can any such person be looked for, with any expectation of finding him? To what ends, in any of those receptacles of sham–learning can men’s views have ever been directed, but to the ends of existing judicature, the very opposites of the ends of justice?
Object and character of the following instructions.
Of the ensuing body of instructions, the object will be, to point out to the notice of the judge the several circumstances which, by the influence they exert on the will of the witness, or the indications they afford of his disposition and character, moral and intellectual, present themselves as having the effect of demonstrating the trustworthiness of his evidence,—the probability of its being at once correct and complete,—of its conforming itself throughout the whole course of it to the line of truth:—or else diminishing this probability on the part of the testimony, and thence diminishing the degree of the probative or persuasive force with which it is fit that it should act on the mind of the judge.
Antecedently to the present stage of the work, this topic never presented itself for consideration. Why? Because, from the first to the last, the proposition maintained has been, that, be the degree of trustworthiness ever so small, ever so low, it can in no case form a rational ground for the exclusion of the evidence. But supposing this granted, then, and not till then, comes the question, what degree of persuasive force to attribute to it.
As to a great part (perhaps by much the greatest,) they will be found so obvious to the most uninformed mind, that, in the character of information, nothing could be more superfluous, and even impertinent; but in the way of memento, the faculty of recurring to them may not be the less useful and commodious. Of a dozen considerations, immediately following one another, it may happen that there is not a single one that would not to the most uncultivated understanding be an obvious one. But it may happen, that, for want of a simultaneous view, some one of them may be out of mind: and for want of that one, the decision, the judicial operation, may fail of being so correct as it might and ought to have been.
If, in the instance of the merely curious reader, there be anything in them capable of affording to his understanding the slightest degree of instruction, or exciting in his mind the smallest spark of interest, it must be the continually repeated contradiction and disproof they give to the rules which govern the existing practice.
For in this quarter of the field of law (not to speak of so many others,) the art of the English lawyer (not to speak of other lawyers) has two branches: the art of knowing that which has no existence, and the art of not knowing what is known to everybody else.
Throughout the whole course of these instructions, the English reader, and more particularly the English lawyer, would be apt to expect, and thence to be more or less disappointed at not meeting with, a number of technical terms, which, in the part here in question of the field of law, are in present use. Had they been found capable of answering the purpose of correct information, there is not one of them that would not have all along been employed. But, in this, as in other branches of science, it is not in the nature of terms of extensive import—of generic terms, where they are the result of erroneous views of the subject, to be capable of serving for the enunciation of truth.
Of the classes among which transgressions productive of real mischief have been distributed in another work,* ten or a dozen characteristic properties have been enumerated, as respectively belonging in common to the offences aggregated to each respective class:—such and such properties to all offences against other individuals; such and such to offences, or supposed offences, against a man’s self; such and such to offences striking not against any assignable individuals, but undistinguishably against all the individuals of which the public is composed.
But, of the classes of offences, and other acts and objects, as made up by the technical denominations employed by the technical system, it is a property (and the only property they have in common) to have no natural property in common;—to have nothing in common but the artificial arrangements made under that system in relation to those objects. Take, for example, the words crime, misdemeanor, felony, præmunire, tort, larceny, arson, &c. &c.
The omission was indispensable. Throughout the whole course of the work, the purpose of it being to deliver useful truth, and nothing else,—terms which could not be employed without disseminating error, pernicious error, were incapable of being rendered subservient to the purpose: just as a mixture composed of arsenic and sugar would be incapable of being made into syrup, as a vehicle for any useful medicine.
But, from this omission, no sort of privation or inconvenience in any shape will accrue to anybody—at any rate, to the non-lawyer.—The words which, in the room of these technical ones, are employed,—these natural expressions, though they belong not to the language coined by lawyers, belong not the less in fact, and by rather a better title, to the English language. The words thus carefully, because necessarily, excluded, belong all of them to a sort of cant or slang, the opprobrium of the body of the language: a sort of slang never used but to a bad purpose—incapable of being ever applied to any good one. By the omission of this lawyers’ jargon, the reader (the non-lawyer at least) is no more left at a loss, than he is by the omission of that other sort of flash language called the thieves’ cant or slang, the language in use among unlicensed depredators.
The judge, for whose use these instructions are designed, is a judge whose views (the source of corruption being supposed to have been previously dried up) are directed, not to the established ends of judicature, but to their opposites, the ends of justice: and to such new views the common language of Englishmen will be found as congenial, as the established lawyers’ slang will be found inapplicable.
[* ]Introduction to Morals and Legislation. Dumont, Traités de Législation.