Front Page Titles (by Subject) CHAPTER IX.: ULTERIOR SAFEGUARDS AGAINST THE INCONVENIENCIES WHICH MAY PRESENT THEMSELVES AS LIABLE TO ARISE FROM THE ABOLITION OF THE EXCLUSIONARY RULES. - The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2)
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CHAPTER IX.: ULTERIOR SAFEGUARDS AGAINST THE INCONVENIENCIES WHICH MAY PRESENT THEMSELVES AS LIABLE TO ARISE FROM THE ABOLITION OF THE 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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ULTERIOR SAFEGUARDS AGAINST THE INCONVENIENCIES WHICH MAY PRESENT THEMSELVES AS LIABLE TO ARISE FROM THE ABOLITION OF THE EXCLUSIONARY RULES.
Panic terrors, genuine and counterfeit, are among the life-guards of abuse. From reform, be it what it may, fears are professed by sharp-sighted hypocrites—fears are felt and entertained by their weak-sighted dupes. Knavery presents the phantasmagoric magnifying glass; and it is through this medium that danger is viewed by the eye of imbecility.
Anything which, in the case of the reforms here proposed, may contribute to allay the accompanying apprehension, is deserving of notice.
The safeguards here in view may be ranked in the first place under two heads:—1. Safeguards against deception and consequent misdecision; 2. Safeguards against vexation, in so far as unnecessary and unprofitable.
Under either head may again be distinguised—1. Such as exist or would take place of themselves, but may notwithstanding be pointed out to good purpose, as being liable to be overlooked; 2. Such as, though not at present in existence, nor of a nature to take place of themselves, might (as it seems) be established to good purpose, and may therefore be considered as eventually waiting to be established.
Under the head of existing safeguards, the following may be worth noticing:—
One ground of alarm may be, the danger of mendacity, and consequent deception and misdecision, from the giving an unlimited admission to the testimony of the plaintiff.
By way of antispasmodic against the terrors from this source, it may be proper on this occasion to bring to mind once more the testimony of experience, certifying that, in so many cases, where, by the reason of the most cogent interests, the mendacity-promoting force has been at its highest pitch, no symptoms of mischief from this source have ever been discernible: habitual and professional depredators, delivering their testimony against accomplices, under the temptation offered by impunity instead of capital punishment, with the addition of pecuniary rewards to an amount far beyond what are usually offered to individuals at large. These are rewards earnible by truth as well as by falsehood. But rewards, equally offered, and not earnible but by mendacity, are the rewards by which servants in trade, who have goods to deliver from traders, their masters, to customers, are invited to steal the goods, and then by their testimony charge the customer with the receipt of them—the customer, whose true testimony cannot be opposed to their mendacious evidence.
Lawyer. The defendant will stand exposed to whatever danger is attached to the admission of the testimony of the plaintiff.
Non-Lawyer. Good: but while, from the admission given to him, the plaintiff derives the faculty of delivering false testimony to the prejudice of the defendant,—so, by the admission given to the testimony of the defendant, does the defendant derive the faculty of defending himself, for which, by the supposition, the simple truth is sufficient. Truth opposing herself to the plaintiff, truth giving her support to the defendant,—plaintiff and defendant being in other respects on equal terms,—in favour of which side lie the odds?
Lawyer. But a case that in reality will frequently happen, is, that the matter of fact, notwithstanding the consequences of it with relation to the interests of the defendant, has not fallen under his cognizance. If, the defendant having been wounded, it be by your hand that the wound has been inflicted, it can scarcely happen but that the fact must have fallen within your knowledge. But if it has been by the teeth of a dog of yours, or by the horns of a bull of yours, this may as well have happened, you being at a hundred miles distance, as in your presence. The plaintiff being predisposed to lie, and having his choice of lies, his care will be, that in the scene he feigns, you, the defendant, shall not be one of the actors.
Non-Lawyer. Doubtless this will be his best policy; just as, under your own established and therefore faultless system, were the tradesman’s servant to steal the goods, and then swear he had delivered them to the customer, it would be better policy to suppose them delivered at his house out of his presence, than in his presence; although the testimony of the customer, to whose loss the theft and the perjury are committed, would not be admitted to contest it.
But, the door being, by the supposition, as completely open to the testimony of the defendant as to that of the plaintiff, and the fact on which the plaintiff grounds his claim being by the supposition a fact altogether false,—the case will be, that the defendant, if he contests the claim, believes the fact to be false. Under whatever sanction, therefore (call it oath, call it what else you will,) the plaintiff affirms, contrary to truth, his persuasion of the existence of the fact, the defendant will of course affirm his persuasion of the non-existence of it. Here, then, it must be confessed, we have a danger of deception, as we have in all cases in which testimony is admitted. But the plaintiff’s story, being by the supposition an utter falsehood, has everything to fear from scrutiny, from counter-interrogation, from whatever counter-evidence can be afforded by circumstances; while the assertion of the defendant, being true, can find nothing to oppose it from either of these sources.
Now observe how the matter stands under your system. Innumerable are the instances in which the fact constitutive of a right on the part of Titius, being true, would be testified and put beyond doubt by the testimony of Titius, if, Titius being plaintiff, his testimony were admitted. In perhaps the greater number of these instances, the fact being as well known to the defendant as to the plaintiff, and the defendant not being disposed to be at the expense of perjury to save paying what in justice he ought to pay, he would do one of two things: if the fact had fallen within his cognizance, he would confess it; if the fact had not fallen under his cognizance, yet, hearing it sworn to by the plaintiff, and not looking upon the plaintiff as a man who would perjure himself, he would not, upon his oath, declare his disbelief of the statement sworn to on the other side.
Now what does your system in this case? To the evil-doer it insures success and triumph, without peril of perjury, or expense of litigation: to the innocent and injured, it ensures loss, without hope of safety—injury, without the possibility of self-defence.
Lawyer. Well, and what then? He should have been wiser. It should have been his care to have provided himself with legal evidence.
Non-Lawyer. His care! Yes: but can it be a secret to you, that in many cases such provision would be impossible? that in others the precaution would be resented as an insult, and the transaction itself (the contract, or whatever it be) out of which the right arises, be by that means rendered impossible? And suppose him (like Duke and no Duke) never to travel without a train of witnesses at his heels: have you any secret you could supply him with, to enable him to keep them alive at pleasure?
He should have provided himself with legal evidence! Do you and yours, from the lowest to the highest of you, know what legal evidence is? Would you let him know, if you did? Did you ever, with your own goodwill, do anything towards letting men know what (on this subject or on any other) the law—the law which you every day compose on pretence of declaring it—is? Have you ever ceased to do whatever was in your power to prevent all such knowledge from being attainable—to keep all such knowledge out of their reach?
The system which the suitor supposes to be established—the system on the confidence of which he acts, is the system declared to him by domestic experience, right reason, and common sense. This system he sees pursued, even by you and yours, in some cases: deceived by your indefatigable self-eulogiums, he concludes it to be pursued in all cases. Your exceptions, extensive and numerous as they are, how should he divine them? To give himself the least chance for it, it would be necessary for him, at the outset, to begin with discarding his ordinary guides, common honesty and common sense.
Here may be the place to observe once more, that the utmost danger which can be apprehended from the treest admission of self-serving testimony on both sides, is inferior, far inferior, to that which, under the technical system, has place in every day’s practice. In all cases, from the most lightly to the most heavily penal (personal injuries, acts of depredation, acts of malicious destruction,) where an injury by which an individual is the immediate sufferer is treated on the footing of a crime,—the testimony of the party injured (testifying under the influence of an interest in the strictest sense pecuniary, viz. that constituted by costs,—and always under the smart of the injury, be it what it may,) is admitted under the name of evidence: and under the sort of sanction reserved for those declarations which are received under the name and on the footing of evidence,—the sanction of an oath, fortified by the eventual punishment attached to the breach of it: while, on the other side (the defendant’s,) though, under the name of the defence, the party, if present (which in slightly penal causes it is not necessary that he should be,) cannot be prevented from saying what he thinks fit,—yet, what he does say, not being corroborated by the sanction of an oath, nor being subjectable to counter-interrogation, is not received under the name nor on the footing of evidence.
What is to the present purpose, is this question:—If no mischief is experienced from the partial admission of self-serving testimony, the admission of it on the plaintiff’s side—on that side on which (as hath been seen) it is most dangerous,—can any greater danger be reasonably apprehended from the impartial admission of it, from the unreserved admission of it on both sides?
The above observations on the safeguards which already exist, may suffice to dispel all vague fears that great prejudice to justice would result from the abolition of the exclusionary rule.
An ulterior safeguard, which is not, but which might be, and ought to be established, is the registration of evidence.
By the registration of evidence, I do not mean the committing of the evidence to writing in terminis; but merely the making a memorandum of the species and nature of the evidence, under apposite heads.
The immediate use is, to show, on the occasion, the strength of each article of evidence: to indicate the strength of it, as far as the denomination to which it belongs, and under which it is entered, may be conducive to that purpose.
The ulterior use is, to put a mark of distinction upon every cause in which, on the side in favour of which the decision was pronounced, the mass of evidence was, in point of strength, in any respect below the ordinary standard.
The ultimate use is, to indicate, not indeed the exact quantity of the mischief (for when there is none, none can be indicated,) but the maximum of the mischief which, in the way of misdecision, under any head of infirmity or suspicion, can have owed its birth to the abolition of the exclusionary rule:—1. Judgment for the plaintiff. Evidence for the plaintiff, none but the plaintiff’s testimony. Evidence for the defendant, none but the defendant’s testimony. 2. Judgment for the defendant: state of the evidence the same. 3. Judgment again for the plaintiff. Evidence of the plaintiff delivered by him, or not delivered: the fact (the collative, or say investitive, fact, by which the right in question was conferred on him) not having fallen within his cognizance, nor any other fact serving for proof of it in the way of circumstantial evidence. Extraneous witness, Matthew Martyr: his testimony exposed to suspicion by interest derived from relationship,—he being husband, son, father, brother, partner, servant, master, to the plaintiff; or by specific pecuniary interest, in such or such a way; or by improbity, as evidenced by his having been convicted of such or such an offence.
Ulterior details might, in this place, be regarded as superfluous and premature: what is above will serve for an indication of the ends to which the proposed arrangement is directed. To frame an apposite system of book-keeping, whereby, for each cause, the labour of registration could be reduced within the compass of a few words, would be a consequential task, and not a difficult one.
I speak of the system of registration as exhibiting the maximum of mischief from deception and consequent misdecision having infirmity of evidence for its cause. I say the maximum; it being understood that, supposing in every cause the decision given in favour of that side of the cause on which the evidence was thus defective to have been erroneous, the greatest number of causes in which this error—error from this source—could have taken place, is thus brought to view. But so it may be, that in no one of all those instances was the decision erroneous: still, in this case, the word maximum is not less apposite than if the decision was erroneous in all those instances.
On the present occasion, in speaking of infirm and suspectable evidence, those causes alone of inferiority need be thought of, that have been brought directly to view in the course and for the purpose of the present work. In a system of registration, in so far as adapted to the end here in question, the several other causes of infirmity would be equally entitled to a place. The heads being expressed by apposite denominations,—the operation of making, on the occasion of such cause, the several entries under those several heads, would present little difficulty. Mercantile book-keeping, an art which, under the existing system of nomenclature, is clouded and perplexed by obscure and unexplained fictions, presents much more.*
Lawyer. What! more records? and have we not records enough already? and is there not enough in them? and is there to be nothing said about John Doe and Richard Roe? and do you mean to confound the distinction between courts of record and courts not of record?
Non-Lawyer. To make answer to your questions, the matter of your records may be divided into three portions:—1. Sheer lies; 2. Impertinent and useless truths; 3. Instructive truths. The instructive truths—that is, heads for the reception of these—it is our wish to preserve; though it would require a microscopic eye to spy them out: and if they were of iron, so much the better, because in that case a magnet would save time and scrutiny.
Of the sheer lies and impertinent truths, I agree with you that there is enough already, and therefore it is we propose that no further additions shall be made to that part of the stock. If your relish for the dish remainafter the odor lucri has evaporated, you know where there is enough for it.
Courts of record—courts not of record! A precious distinction, truly! A precious end it aims at—and a precious use has been made of it! Know you then of that judge, whose operations will be likely to be better secured against error (designed and undesigned)—against needless delay, expense, and vexation, by the assurance that they will be buried in oblivion? Can there be so much as a pretence for omitting to perpetuate the memory, of everything that passes (except the verbiage of advocates and parties,) unless it be the little importance of the cause, compared with the delay, expense, and vexation, attached to the registration of it? And do you not know, that the use aimed at by the distinction, and by the consequences grounded on it, were to secure the judges that invented it against the competition of judges below them, and on one side of them? and that, among the civil courts not of record, the equity courts—the courts which reject, as “beneath their dignity,” all causes of less than £10 value—are at the head of the list?
So much as to the safeguards against misdecision. For the avoidance of unnecessary vexation, an important maxim remains to be brought to view.
I suppose the ends of justice substituted to the ends of judicature. I suppose hypocrisy unmasked. I suppose honest eyes opened, imbecility in honest guidance. I suppose the door thrown wide open, not only to all willing testimony, but to all lights that are to be elicited from interrogatories administered to unwilling testimony: to unwilling testimony, whatsoever be the now terrible, the now tremendous, fruits of it: lights collected without reserve, from unwilling witnesses, although the result should be the diminishing the multitude of misdeeds of all kinds, and diminishing (if English lawyers and their dupes endure to see it diminished) the barbarity, as well as imbecility, of their penal code.
In throwing open the door to self-criminative evidence, one exception, though but a temporary, and thence a limited and continually expiring one, would require to be made. No admission of such evidence against offences anterior to the promulgation of the law: the reform should not be retrospective.
The reason is almost too obvious to bear mentioning. Transgressions already committed are beyond the reach of prevention: punishment would be misery in waste.
Not that, because the case were called a criminal one, there would be anything gained to general utility by extending the provision to the exclusion of satisfaction on the score of injury; viz. where the author of the injury cannot be a loser but the sufferer by it must be (and to the same amount) a gainer. But under the existing technical system, such is the structure of the established forms, that if the examination of the defendant remained forbidden to the one purpose, it would remain alike forbidden to the other.
To the abuse here in question, no correction would, could, or ought to be administered, but in the way of statute law. To render the correction retrospective, would include in it an operation of ex post facto law. Legislators shrink with uniform horror from the idea of such injustice. Jurisprudential law, from first to last, was formed by it. Not a step can she take on any fresh ground—not a fresh step can she take in any direction, that is not stained by injustice of this description.
[* ]Thus much being said of one part of the proposed system of judicial book-keeping, a word or two, for the purpose of sketching out a general idea of the remainder, may perhaps not appear misemployed. Suggested by a collective view of all the ends of justice, the system, taken in both its parts, embraces in its design all these several ends.