Front Page Titles (by Subject) CHAPTER I.: PROPRIETY OF CAUTIONARY INSTRUCTIONS, IN PREFERENCE TO UNBENDING RULES. - The Works of Jeremy Bentham, vol. 6
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CHAPTER I.: PROPRIETY OF CAUTIONARY INSTRUCTIONS, IN PREFERENCE TO UNBENDING RULES. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 6 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 6.
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PROPRIETY OF CAUTIONARY INSTRUCTIONS, IN PREFERENCE TO UNBENDING RULES.
It has been already shown at length, how fallacious in their tendency, how unfavourable to the interests of truth and justice, with a very few exceptions, the objections commonly made to this or that species of evidence are in general, when the practical result is the shutting a peremptory door against the reception of this or that species of evidence:—or, in the language of English lawyers, where they are considered as constituting peremptory objections to the competency of the evidence. Pernicious, however, as well as ill grounded, as with a very few exceptions they appear to be, in that character—in the character of objections to the credibility or rather to the credit of the evidence,—there are few of them from which information, rational and serviceable information, may not be derived.
Many and many are the occasions on which, of the same proposition of which, in the character of an obligatory rule, the effect cannot but be pernicious,—the effect in the character of a memento would be useful as well as unexceptionable.
Unfortunately, in legislation as in administration, in the senate as in the closet, the exercise of will is easy;—it is the exercise of the understanding that gives trouble.
Though seated in the centre of information—of that privileged sanctuary through which alone lies the road to the pinnacle of wisdom,—though possessing among themselves a share, amounting in some instances even to a monopoly of the efficient causes of wisdom—the rulers of the world have in general been as sparing of their lessons, as they have been liberal of their commands. As to the reputation of wisdom, it is among the appendages of power; and in proportion as men are secure of possessing it, whether they deserve it or no, they are free from anxiety on the score of their not being thought deserving of it.
In the character of a memento, the tendency of a proposition relative to the credit due to a piece of evidence will, in almost every instance, be conducive to rectitude of decision—conducive to the main end of justice: while, in the character of an obligatory rule, of a ground of peremptory exclusion, the effect of a proposition, the same in other respects, will in most instances he pernicious—productive of hardship and injustice, and of that sense of general insecurity of which every instance of injustice, in proportion as it appears to be what it is, is naturally productive.
Of a rule of the monitory kind producing that effect, and that alone, which in each individual instance presents itself to the mind of him to whom it belongs to judge, as suited to the nature of the case, the effect is in each instance purely good, conducive to the ends of justice:—of a rule to the same purport in other respects, but possessing and exercising obligatory force, the effect is in every instance either pernicious or unnecessary;—unnecessary, where in the character of a rule of unobligatory instruction it would have had its influence and guided the current of persuasion—the course of decision;—pernicious, where leaving the judgment unsatisfied, it drags the will by force into a decision condemned and protested against by the judgment.
The amount of the deduction which reason presents as the proper one to be made from the persuasive force of the piece of evidence in question, on the score of the objection made to it, is susceptible of all manner of degrees or modifications in point of quantity. The rule which converts a ground of deduction—a cause of doubt—into an efficient cause of peremptory exclusion, gives to that force, which is thus susceptible of an infinity of degrees, the effect which cannot belong to it with propriety on any other supposition than that of its existing at one and the same invariable degree in every instance.
Though addressed professedly only to judges, instructions, if published, as of course, if sanctioned, they would be, are in effect addressed to all the world. In effect, they are consequently addressed as well to parties as to their advocates. But under the established systems,—even under the system established in England,—it is not every party that has an advocate, since it is not every party that has wherewithal to pay one. Instances are, the common run of trials for predatory offences of indigence, and the petty offences of various sorts, the cognizance of which is given to single magistrates.
As to parties:—on this subject there cannot be an instruction given, of which, if it be of any use, and susceptible of any application, it will not happen to one or other of the parties to be concerned, in point of interest, to claim the benefit of it. But among suitors, especially among suitors too indigent in circumstances to have it in their power to purchase the services of professional assistants, there will naturally be many, not to say a large majority, who, by want of general instruction and mental culture, will be disqualified for turning to account instructions to this effect, or any instructions that could be given them on the subject of evidence by any general rule of law.
It cannot therefore in any case happen but that the care of attending to them and carrying them into effect, in each case for the benefit of the party interested, must rest in some degree upon the judge:—and accordingly they cannot but be considered as addressed to the judges, not in words only, but in design and effect.
Addressed nominally to judges only, but virtually to all ranks without distinction—addressed to them, and received by them, according to the measures of their several capacities and opportunities, they will have a further effect beyond that which they claim in words. By putting the reader upon his guard against those frauds, the exposure to which constitutes so many causes or modes of infirmity in the respective corresponding species of inferior evidence, a natural effect of them will be to prevent the fraud itself, by impressing the persuasion that the effect of this warning given against it will have been to render the attempt perilous, and success hopeless.
In this point of view, a code of instructions to judges respecting the weight of evidence, being in effect a warning against those particular modifications of fraud of which a court of justice is the theatre, constitutes an application of a principle already held up to view: a principle by which, as a means of preventing frauds at large, a system of instructions laying open such frauds as shall have been brought to light by experience, is recommended as one of the instruments by which, in the way of indirect legislation, the legislator has it in his power to ward off crimes.*
In the way of instruction, as contradistinct to regulation, the legislator cannot do harm—he cannot but do good. Harm he cannot do: no, not even should the instruction he gives (unsupposable as the case is) be all of it erroneous and false. Being false, it may prove deceptious, and in so far mischievous. True: but instruction is here considered in contradistinction to—in exclusion of—coercive regulation. Leaving it to the judge to make such use of the instruction as he thinks best—none at all if it appear erroneous, it leaves his will free to profit by such better lights as his own experience and understanding furnish. What if, instead of confining himself to the giving instruction, the legislator had drawn the inference in every case, and converted his erroneous but uncompulsory instructions into compulsory commands?
But the case is scarcely conceivable—certainly not at all probable—in which, by operating in the line of instruction, the legislator can fail of doing good.
The judge, attending to the subject of evidence—to the cases that come before him on that ground, as to any others—no otherwise than as he is called upon to attend to it by this or that individual cause,—his views are naturally limited to the particular and comparatively narrow line on which he is thus called upon to act. The knowledge of the legislator is, or at least might be and ought to be, the aggregate knowledge of the whole state—not to say of the whole world. From each one of the judges subject to his authority, he has it in his power to command the whole result of his opinions and reflections on this as on every other line of action within the limits of his office. The chance which he possesses, or at least is enabled to possess, of procuring for himself correct information, is to the chance possessed by any single judge, as the whole number of the judges is to one.
Not only is it in the power of the legislator, as such, to raise the quantity and value of the accessible mass of information in this line to its maximum, but it is in the power of any and every private and uncommissioned individual, according to the measure of his opportunities and his faculties, to render to mankind the same sort of service,—provided always that the hand of the judge be on each occasion left unfettered, and free to turn to its use the information thus supplied.
The contents of this book are an attempt to render, according to the faculties of the author, this sort of service. Should it be found to bear the test of examination, it may serve as a nucleus to which the mass of desirable information, accumulated by the experience of successive ages, may, as it were by crystallization, aggregate itself.
On the other hand, by way of imperation and coercion, no good can be done—harm cannot but be done:—by coercion imposed upon the judge, the probability of right decision—of decision in conformity to the truth in each instance—cannot be increased, cannot but be diminished.
[* ]See Vol. I. p. 567. Uses to be drawn from the Power of Instruction.