Front Page Titles (by Subject) CHAPTER VIII.: OF THE COMPARATIVE MISCHIEF IN THE EVENT OF MISDECISION, TO THE PREJUDICE OF THE PLAINTIFF'S OR OF THE DEFENDANT'S SIDE. - The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2)
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CHAPTER VIII.: OF THE COMPARATIVE MISCHIEF IN THE EVENT OF MISDECISION, TO THE PREJUDICE OF THE PLAINTIFF’S OR OF THE DEFENDANT’S SIDE. - 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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OF THE COMPARATIVE MISCHIEF IN THE EVENT OF MISDECISION, TO THE PREJUDICE OF THE PLAINTIFF’S OR OF THE DEFENDANT’S SIDE.
The above-mentioned particulars, such of them as the nature of each case has happened to present, having been taken into consideration, and the trustworthiness of the witness or witnesses on one or both sides remaining in doubt, and with it the decision proper to be grounded upon the evidence,—a consideration to which it may be of use that the mind of the judge should not be wholly inattentive, is the difference (if any) in point of mischief, that may be incident to the decision; viz. according as it happens to have for its sole or principal ground the testimony of an extraneous witness, or that of a party, and, of the parties, that of a defendant or that of a plaintiff. For if, as between right decision and misdecision, the scales of probability appear to hang upon a level, his choice will naturally fall on that side on which, if to the prejudice of that side misdecision should ensue, the quantity of the mischief resulting from it will be at the lowest pitch.
I. Mischief of plaintiff’s mendacious self-serving testimony, compared with that of defendant’s ditto.
In general, in a case where money is at stake, the quantum of mischief liable to result from an erroneous decision pronounced in favour of the plaintiff’s side, and grounded on the mendacious testimony of the plaintiff, is greater than what is apt to result from an erroneous decision pronounced in a case where the same quantity of money is at stake upon the ground of the mendacious testimony of the defendant.
The reason is, that in the station of plaintiff it rests with every man to multiply suits at pleasure; to harass with suits any persons and any number of persons at pleasure. If, then, by his own testimony alone, he has obtained a judgment against this or that one person, that testimony being generally understood to be mendacious,—in such case, this one groundless demand having succeeded with him, there is a danger lest he should extend his enterprises to another, and then to another, and so on without limit.*
This might be the case, for example, if, in the character of an informer, a man were to take upon himself to raise money by his own mendacious testimony: instituting, or causing to be instituted, against a person altogether innocent, a charge of having committed some offence, to which a pecuniary penalty, payable in the whole or in part to the informer or witness, stands annexed; and supporting the charge by his own testimony: that testimony (the defendant being innocent) of course mendacious.
But though, on the supposition that any such practice as that of making a trade of giving groundless informations supported by false testimony were habitual, the danger indicated and the alarm produced by a given sum raised in this way by a given number of suits, would be greater than the danger indicated and the alarm produced by the same sum raised by evidence equally false in the same number of suits of all other kinds taken together; yet it follows not that, in any given suit taken by itself (and, independently of any such habitual practice, the existence of which is supposed, for mere illustration, to have been ascertained,) mendacity in this case is at all more probable, than, under the action of a pecuniary interest of equal value, it would be in any other sort of suit, whether on the plaintiff’s or on the defendant’s side.
An informer is one who, at the invitation of the law, lends his hand to the administration of justice. It follows not, that because a man is ready for a certain price to give true evidence, he is ready to give false evidence for the same price: it follows not, any more than that because a man is ready, in the capacity of a judge, for a certain salary, to engage to administer justice, and do his part towards the due execution of the laws, he is ready, for the same salary, to engage to practise depredation under the name of justice. It follows not, any more than that because for a given price a man is ready to engage to contribute to the defence of his country against the invasion of a foreign enemy, therefore for the same price he is ready to engage to contribute to the destruction of his country in the service of the enemy. It follows not, that because by swearing truly he expects to gain £10, therefore he will depose falsely for that purpose; nor that, because, at the expense of the same sum expended in costs of prosecution, he seeks the pleasure of revenge at the expense of any person who, no matter on what account, has become the object of his ill will,—therefore, to gain the end of the prosecution, he will, in the character of witness for the prosecutor, deliver mendacious criminative evidence.
In various ages and countries, mischief in vast quantity has been operated by men in the character of informers. But the testimony by which in these instances it has been operated—the testimony which has served as the instrument of the mischief, has been, not mendacious, but veracious testimony; the fault has lain, not in the informers, but in the laws.
England, in the time of Henry VII., afforded a remarkable example—probably the most remarkable that is to be found in the history of any age or nation—of mischief flowing in prodigious masses from this source. But, in so far as it was the cause of terror, and a fit object of blame, the mischief was the sole work of the legislator. Laws were sown, that forfeitures might be reaped.
II. Mischief of party’s mendacious testimony, compared with that of extraneous witness’s ditto.
In general, the quantity of mischief apt to result from misdecision in favour of either side, when grounded on mendacious testimony on the part of an extraneous witness, is not so great as when grounded on the mendacious testimony of either party, testifying in his own favour.
The reason is, that it depends not on an extraneous witness to originate the suit, in the course of which his testimony is delivered: it lies not therefore in his power, as in that of a plaintiff, to multiply suits at pleasure, and (if gain were to be made by unjust demands, supported by mendacious testimony) to multiply at pleasure occasions of employing testimony as an instrument of legal depredation.
To originate causes of suit—and thence in a remote way (though not to a certainty) to originate suits themselves—is competent to any man: and thence to a man who, when the suit takes place, occupies the station of defendant. To originate a suit immediately, and without needing the concurrence or antecedent agency of any other individual, belongs also to any individual: which individual, as soon as the suit is instituted, assumes thereby the character, and occupies the station, of plaintiff. But to originate any sort of suit, either remotely, as in the character of future contingent defendant, or immediately, as in the character of actual plaintiff, is the exclusive character of a party, and is incompatible with the station of extraneous witness.
III. Mischief of party’s self-disserving, compared with that of his self-serving, mendacious testimony.
In the case where it happens to a man’s testimony to be mendacious to his own prejudice, and not to the prejudice of any one else,—in such case, if a decision conformable to it be grounded on it, which decision thereby comes under the description of misdecision, the mischief of such misdecision does not stand upon so high a footing as that of a misdecision to the same effect produced by any of the ordinary causes.
The reason is, that the mischief of the second order—the danger and alarm,* —in comparison with which the mischief of the first order is much inferior in importance, amounts to nothing in this case. A man, as often as, without being guilty, he chooses to confess himself guilty, will suffer accordingly: let this be understood. But what, in this case, is the amount of the danger?—for how few are there who will be disposed to make any such choice!—and if there were ever so many more, where is the great harm done? Nemo audiatur perire volens, says the maxim of Roman-Gallic law. But on the other hand comes the maxim, Volenti non fit injuria: why refuse to hear him whose wish it is to “perish,” if, in the judgment of the person most competent, he will not be injured by it? So again as to the alarm. For, by the supposition, the choice is the man’s own: if force be employed, the case quadrates not with the present case; and who is there, in whose breast any pain of apprehension can be infused by the idea of an evil to which he cannot be exposed but by his own free choice?
But though, in this extraordinary sort of case, the mischief of misdecision is not so great as in ordinary cases, still neither is the case altogether free from mischief. For, by the manifest opposition of the case to the ordinary course of human conduct,—men at large, observing a man convicted on his own self-criminative testimony—on his own confessorial evidence, which afterwards is by accident discovered or suspected not to have been true, will be led to suppose or suspect it to be the result of secret subornation: subornation acting possibly by holding out hope of reward—more naturally by holding out fear of undue punishment, or of injury in some other shape.
Hence one reason, why confession in general terms should never be received, to the exclusion of complete as well as correct testimony from the same source: to the end that, in case of incorrectness or incompleteness, intentional or not intentional, such self-regarding and self-criminative testimony may, from the approved sources, counter-evidence and counter-interrogation (performed at any rate by the judge,) take its chance of being rendered correct and complete: as if, instead of being self-regarding, it had been so much extraneous testimony.
[* ]In this case, however, the mischief produced in the shape of danger and alarm to the community at large, will be apt to be less where the demand had for its ground a claim of indemnification (viz. on the score of a loss already incurred, and known to be so,) than where such previous loss is out of the question.
[* ]Dumont, Traités de Législation;—and see Introduction to Morals and Legislation (Vol. I. p. 69 et seq.)