第91章 BENTHAM'S DOCTRINE(13)

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.'(66)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 manoeuvring 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.(67)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.