[410] Ibid. i. 145.
[411] Works ('Morals and Legislation'), i. 143.
[412] Ibid. i. 147-48.
[413] Works ('Morals and Legislation'), i 406 n.
[414] Works ('Morals and Legislation'), i. 96 n.
The practical value of Bentham's method is perhaps best illustrated by his Rationale of Evidence. The composition of the papers ultimately put together by J. S. Mill had occupied Bentham from 1802 to 1812. The changed style is significant. Nobody could write more pointedly, or with happier illustrations, than Bentham in his earlier years. He afterwards came to think that a didactic treatise should sacrifice every other virtue to fulness and precision. To make a sentence precise, every qualifying clause must be somehow forced into the original formula. Still more characteristic is his application of what he calls the 'substantive-preferring principle.'[415] He would rather say, 'I give extension to an object,' than 'I extend an object.' Where a substantive is employed, the idea is 'stationed upon a rock'; if only a verb, the idea is 'like a leaf floating on a stream.' A verb, he said,[416] 'slips through your fingers like an eel.' The principle corresponds to his 'metaphysics.' The universe of thought is made up of a number of separate 'entities' corresponding to nouns-substantive, and when these bundles are distinctly isolated by appropriate nouns, the process of arranging and codifying according to the simple relations indicated by the copula is greatly facilitated. The ideal language would resemble algebra, in which symbols, each representing a given numerical value, are connected by the smallest possible number of symbols of operation, +, -, =, and so forth. To set two such statements side by side, or to modify them by inserting different constants, is then a comparatively easy process, capable of being regulated by simple general rules. Bentham's style becomes tiresome, and was often improperly called obscure. It requires attention, but the meaning is never doubtful—and to the end we have frequent flashes of the old vivacity.
The Rationale of Evidence, as Mill remarks,[417] is 'one of the richest in matter of all Bentham's productions.' It contains, too, many passages in Bentham's earlier style, judiciously preserved by his young editor; indeed, so many that I am tempted even to call the book amusing. In spite of the wearisome effort to say everything, and to force language into the mould presented by his theory, Bentham attracts us by his obvious sincerity. The arguments may be unsatisfactory, but they are genuine arguments. They represent conviction; they are given because they have convinced; and no reader can deny that they really tend to convince. We may complain that there are too many words, and that the sentences are cumbrous; but the substance is always to the point. The main purpose may be very briefly indicated. Bentham begins by general considerations upon evidence, in which he and his youthful editor indicate their general adherence to the doctrines of Hume.[418] This leads to an application of the methods expounded in the 'Introduction,' in order to show how the various motives or 'springs of action' and the 'sanctions' based upon them may affect the trustworthiness of evidence. Any motive whatever may incidentally cause 'mendacity.' The second book, therefore, considers what securities may be taken for 'securing trustworthiness.' We have, for example, a discussion of the value of oaths (he thinks them valueless), of the advantages and disadvantages of reducing evidence to writing, of interrogating witnesses, and of the publicity or privacy of evidence. Book iii. deals with the 'extraction of evidence.' We have to compare the relative advantages of oral and written evidence, the rules for cross-examining witnesses and for taking evidence as to their character. Book iv. deals with 'pre-appointed evidence,' the cases, that is, in which events are recorded at the time of occurrence with a view to their subsequent use as evidence. We have under this head to consider the formalities which should be required in regard to contracts and wills; and the mode of recording judicial and other official decisions and registering births, deaths, and marriages. In Books v. and vi. we consider two kinds of evidence which is in one way or other of inferior cogency, namely, 'circumstantial evidence,' in which the evidence if accepted still leaves room for a process of more or less doubtful inference; and 'makeshift evidence,' such evidence as must sometimes be accepted for want of the best, of which the most conspicuous instance is 'hearsay evidence.' Book vii. deals with the 'authentication' of evidence. Book viii. is a consideration of the 'technical' system, that namely which was accepted by English lawyers; and finally Book ix. deals with a special point, namely, the exclusion of evidence. Bentham announces at starting[419] that he shall establish 'one theorem' and consider two problems. The problems are: 'what securities can be taken for the truth of evidence?' and 'what rules can be given for estimating the value of evidence?' The 'theorem' is that no evidence should be excluded with the professed intention of obtaining a right decision; though some must be excluded to avoid expense, vexation, and delay. This, therefore, as his most distinct moral, is fully treated in the last book.
Had Bentham confined himself to a pithy statement of his leading doctrines, and confirmed them by a few typical cases, he would have been more effective in a literary sense. His passion for 'codification,' for tabulating and arranging facts in all their complexity, and for applying his doctrine at full length to every case that he can imagine, makes him terribly prolix. On the other hand, this process no doubt strengthened his own conviction and the conviction of his disciples as to the value of his process. Follow this clue of utility throughout the whole labyrinth, see what a clear answer it offers at every point, and you cannot doubt that you are in possession of the true compass for such a navigation. Indeed, it seems to be indisputable that Bentham's arguments are the really relevant and important arguments. How can we decide any of the points which come up for discussion? Should a witness be cross-examined? Should his evidence be recorded? Should a wife be allowed to give evidence against her husband? or the defendant to give evidence about his own case? These and innumerable other points can only be decided by reference to what Bentham understood by 'utility.' This or that arrangement is 'useful' because it enables us to get quickly and easily at the evidence, to take effective securities for its truthfulness, to estimate its relevance and importance, to leave the decision to the most qualified persons, and so forth. These points, again, can only be decided by a careful appeal to experience, and by endeavouring to understand the ordinary play of 'motives' and 'sanctions.' What generally makes a man lie, and how is lying to be made unpleasant? By rigorously fixing our minds at every point on such issues, we find that many questions admit of very plain answers, and are surprised to discover what a mass of obscurity has been dispelled. It is, however, true that although the value of the method can hardly be denied unless we deny the value of all experience and common sense, we may dispute the degree in which it confirms the general principle. Every step seems to Bentham to reflect additional light upon his primary axiom. Yet it is possible to hold that witnesses should be encouraged to speak the truth, and that experience may help us to discover the best means to that end without, therefore, admitting the unique validity of the 'greatest happiness' principle. That principle, so far as true, may be itself a deduction from some higher principle; and no philosopher of any school would deny that 'utility' should be in some way consulted by the legislator.
The book illustrates the next critical point in Bentham's system—the transition from law to politics. He was writing the book at the period when the failure of the Panopticon was calling his attention to the wickedness of George III. and Lord Eldon, and when the English demand for parliamentary reform was reviving and supplying him with a sympathetic audience. Now, in examining the theory of evidence upon the plan described, Bentham found himself at every stage in conflict with the existing system, or rather the existing chaos of unintelligible rules. English lawyers, he discovered, had worked out a system of rules for excluding evidence. Sometimes the cause was pure indolence. 'This man, were I to hear him,' says the English judge, 'would come out with a parcel of lies. It would be a plague to hear him: I have heard enough already; shut the door in his face.'[420] But, as Bentham shows with elaborate detail, a reason for suspecting evidence is not a reason for excluding it. A convicted perjurer gives evidence, and has a pecuniary interest in the result. That is excellent ground for caution; but the fact that the man makes a certain statement may still be a help to the ascertainment of truth. Why should that help be rejected? Bentham scarcely admits of any exception to the general rule of taking any evidence you can get—one exception being the rather curious one of confession to a Catholic priest; secrecy in such cases is on the whole, he thinks, useful. He exposes the confusion implied in an exclusion of evidence because it is not fully trustworthy, which is equivalent to working in the dark because a partial light may deceive. But this is only a part of a whole system of arbitrary, inconsistent, and technical rules worked out by the ingenuity of lawyers. Besides the direct injury they gave endless opportunity for skilful manœuvring to exclude or admit evidence by adopting different forms of procedure. Rules had been made by judges as they were wanted and precedents established of contradictory tendency and uncertain application. Bentham contrasts the simplicity of the rules deducible from 'utility' with the amazing complexity of the traditional code of technical rules. Under the 'natural' system, that of utility, you have to deal with a quarrel between your servants or children. You send at once for the disputants, confront them, take any relevant evidence, and make up your mind as to the rights of the dispute. In certain cases this 'natural' procedure has been retained, as, for example, in courts-martial, where rapid decision was necessary. Had the technical system prevailed, the country would have been ruined in six weeks.[421] But the exposure of the technical system requires an elaborate display of intricate methods involving at every step vexation, delay, and injustice. Bentham reckons up nineteen separate devices employed by the courts. He describes the elaborate processes which had to be gone through before a hearing could be obtained; the distance of courts from the litigants; the bandying of cases from court to court; the chicaneries about giving notice; the frequent nullification of all that had been done on account of some technical flaw; the unintelligible jargon of Latin and Law-French which veiled the proceedings from the public; the elaborate mysteries of 'special pleading'; the conflict of jurisdictions, and the manufacture of new 'pleas' and new technical rules; the 'entanglement of jurisdictions,' and especially the distinction between law and equity, which had made confusion doubly confounded. English law had become a mere jungle of unintelligible distinctions, contradictions, and cumbrous methods through which no man could find his way without the guidance of the initiated, and in which a long purse and unscrupulous trickery gave the advantage over the poor to the rich, and to the knave over the honest man. One fruitful source of all these evils was the 'judge-made' law, which Bentham henceforth never ceased to denounce. His ideal was a distinct code which, when change was required, should be changed by an avowed and intelligible process. The chaos which had grown up was the natural result of the gradual development of a traditional body of law, in which new cases were met under cover of applying precedents from previous decisions, with the help of reference to the vague body of unwritten or 'common law,' and of legal fictions permitting some non-natural interpretation of the old formulæ. It is the judges, he had already said in 1792,[422] 'that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it and then beat him. This is the way you make laws for your dog, and this is the way the judges make laws for you and me.' The 'tyranny of judge-made law' is 'the most all-comprehensive, most grinding, and most crying of all grievances,'[423] and is scarcely less bad than 'priest-made religion.'[424] Legal fictions, according to him, are simply lies. The permission to use them is a 'mendacity licence.' In 'Rome-bred law ... fiction' is a 'wart which here and there disfigures the face of justice. In English law fiction is a syphilis which runs into every vein and carries into every part of the system the principle of rottenness.'[425]