Front Page Titles (by Subject) CHAPTER XIV.: PROBLEM XI. To diminish Uncertainty with regard to Procedure and Punishment. - The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law)
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CHAPTER XIV.: PROBLEM XI. To diminish Uncertainty with regard to Procedure and Punishment. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 1.
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It is not my intention here to enter upon the vast subject of procedure: this will be the object not of a chapter, but of a separate work. The present chapter will be confined to two or three general observations.
Has a crime been committed? it is the interest of society that the magistrate charged with its punishment should be informed of it, and informed in such manner as to authorize the infliction of the punishment incurred. Is it alleged that a crime has been committed? it is the interest of society that the truth or falsehood of this allegation should be made evident. Hence, the rules of evidence, and the forms of procedure, ought to be such as, on one side, to admit all true information, and, on the other, to exclude all false information; that is to say, all that offers more chances of deceiving than enlightening.
Nature has placed before our eyes a model of procedure. When we regard what passes in the domestic tribunal—when we examine the conduct of the father of a family among his children and servants, of whom he is the head—we there discover the original features of justice, which we can hardly recognise after they have been disfigured by men incapable of discerning, or interested in disguising the truth. A good judge is only the father of a family acting upon a larger scale. The methods which are good for the father of a family in his search after truth, are equally good for the judge. This is the first model of procedure; it has been departed from, but it ought never to have been discarded.
It is true, that a confidence may be accorded to the father of a family, which cannot be accorded to a judge, because the last has not the same motives of affection to guide him, and may perhaps be led astray by a personal interest. But this only proves that it is necessary to guard against the partiality or corruption of the judge, by precautions which are not requisite in the domestic tribunal. This does not prove that the forms of procedure, and rules of evidence, ought to be different.
English jurisprudence admits the following maxims:—
1. That no one shall be witness in his own cause.
2. That no one shall accuse himself.
3. That the testimony of a person interested in the cause is not admissible.
4. That hearsay evidence is not admissible.
5. That no one shall be tried twice for the same offence.
It is not my intention here to discuss these rules of evidence. In treating of procedure in general, it will be proper to examine if English jurisprudence, superior in so many respects to that of all other nations, owes that superiority to these maxims, or whether they are not the principal cause of that weakness in the powers of justice, from which arises the feebleness of the police in England, and the frequency of crimes.
I shall only observe, that all precautions which are not absolutely necessary for the protection of innocence, offer a dangerous protection to crime. I know no maxim in procedure more dangerous than that which places justice in opposition to itself—which establishes a kind of incompatibility among its duties. When it is said, for example, that it is better to allow one hundred guilty persons to escape, than to condemn one that is innocent,—this supposes a dilemma which does not exist. The security of the innocent may be complete, without favouring the impunity of crime: it can only be complete upon that condition; for every offender who escapes, menaces the public safety; and to allow of this escape is not to protect innocence, but to expose it to be the victim of a new crime. To absolve a criminal, is to commit by his hands the crimes of which he becomes the author.
The difficulty of prosecuting crimes is one cause of their impunity, and of weakness on the part of justice. When the law is clear—when the judge is appealed to immediately after the commission of the supposed crime, the function of accuser is almost confounded with that of witness. When the offence is committed under the eyes of the judge, only two persons are necessary, so to speak, in the drama—the judge and the offender. It is distance which detaches the function of witness from that of judge. But it may happen, that all the witnesses to a fact cannot be collected together; or that the discovery of the offence may not be made till long after its commission; or that the accused has to allege in his defence, facts which can only be verified in the place where they are said to have happened. All this may require delay. This delay may give rise to new incidents, which may require further delay. The procedure of justice becomes complicated; and in order to follow all this chain of operations, without confusion and without neglect, it becomes requisite to place over these judicial proceedings a person who shall have to conduct them. Hence arises another function, that of accuser. The accuser may be either one of the witnesses, or a person interested in the affair, or an officer expressly appointed for this object.
Judicial functions have often been so divided, that the judge who receives the evidence whilst it is recent, has no right to decide upon it, but must send the affair to another judge, who will only have leisure to attend to it when the proofs are half effaced. There are beforehand established, in most states, many useless formalities, and it has been necessary to create officers to follow up these formalities. The system of procedure is thus rendered so complicated, that it becomes an abstruse science: he who would prosecute an offence is obliged to put it into the hands of an attorney, and the attorney himself cannot proceed without having another man of law, of a superior class, to direct him by his counsels, and to speak for him.
To these disadvantages may be added two others:—
1. Legislators, without thinking that they have placed themselves in opposition to themselves, have often closed the approaches of the tribunals to those who have most need of them, by subjecting procedure to the most objectionable taxes.
2. There is a public dislike attached to all those who employ themselves as public accusers in the execution of the laws. This prejudice is foolish and pernicious, yet legislators have often had the weakness to encourage it, without having made the slightest effort to overcome it.
What is the effect of all this accumulation of delay and discouragement? it is, that the laws are not executed. When a man can at once address the judge, and tell him what he has seen, the expense of this proceeding is a trifle. In proportion as he is obliged to pass by a great number of intermediates, his expenses increase; when to this is added the loss of time, the disgust, the uncertainty of success, one is surprised that men are still found sufficiently resolute to engage in such a pursuit. There are but few, and there would be still fewer, if those who adventure in this lottery knew as well as the lawyers what it would cost, and the number of adverse chances.
These difficulties would vanish on the simple institution of a public accuser, clothed with the character of a magistrate, having the conduct of the prosecution, and chargeable with the expenses. The informers who would require to be paid, need have only a small salary; and a hundred gratuitous informers would present themselves, for one who required to be paid.* Each law put into execution would exhibit its good or bad effects: the good grain would be preserved, and the chaff thrown into the fire. Informers, animated by public spirit, rejecting all pecuniary recompense, would be listened to with the respect and confidence which is their due. Delinquents would no longer be able to withdraw themselves from the punishment they had incurred, by treating with those who have undertaken the prosecution, either by engaging them to desist, or by turning them to their own favour.
It is true, that in England, in every important case, the prosecutor is forbidden to make a compromise with the accused without the permission of the judge; but if this prohibition were universal, what effect would it have in those cases in which it is the interest of both parties to evade it?
[* ]I know by experience, says Sir John Fielding, that for one information brought before me from the desire of reward, I have received ten which had no other motive than the public good. P. 412.