“THE EXCLUSION OF ALL WOULD BE THE DENIAL OF ALL JUSTICE” HOW ’S THEORIES ON JUDICIAL EVIDENCE GUIDED ANGLO-AMERICAN LEGAL REFORM

Danielle Alvarez

University of Florida Undergraduate Thesis Advisor: Professor Jessica Harland-Jacobs April 24, 2019

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TABLE OF CONTENTS

INTRODUCTION...... 3

BENTHAM’S CRITIQUES OF THE LEGAL SYSTEM ...... 6

REACTIONS TO BENTHAM ...... 14

EVIDENCE OF BENTHAM’S INFLUENCE ...... 19

CONCLUSION ...... 28

BIBLIOGRAPHY ...... 31

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INTRODUCTION

Jeremy Bentham: influential philosopher, the father of modern Utilitarianism, the eccentric man in the auto-icon. This nineteenth century English theoretical jurist, legal theorist, and moral activist had a mentality ahead of his time. Historians do not contest the impact that

Bentham had on countless facets of nineteenth century society. They do, however, heavily debate his impact on the massive wave of Anglo-American legal reform during the nineteenth and twentieth centuries.

Prior to this pivotal period in legal modernization, court procedures and legal systems were debilitatingly antiquated and biased against the individual. Limitations ranged from the inability of a criminal defendant to testify on his own behalf to the information courtroom procedures that granted judges unrestrained authority over the outcome of trials. Numerous explanations have been proposed as the reason for this wave of reform and various reform advocates have been speculated to be the catalysts for this movement.

Several scholars underestimate the role that Bentham played in initiating and guiding this wave of legal reform. I however, find Bentham to be the father of the movement and have found evidence to support such a proposition. In this thesis, I will discuss Bentham’s books and how the timing of their publications align seamlessly with the period of legal reform. In addition, I find the enacted legislation regarding evidentiary procedure to clearly reflect Bentham’s propositions for reform. I have also found two instances that reveal the direct impact of Bentham and his theories. These cases involve individuals who successfully implemented reform legislation and openly accredited Bentham as their inspiration. When these factors are considered together, it becomes plainly evident that, despite several critiques of his work, Bentham play an undeniably central role in the reformation of Anglo-American legal systems. Not only were a

3 number of his ideas directly implemented, but his publications influenced others to develop their own ideas for reform. This sequence thus sparked a chain of reform centered on Bentham’s teachings.

Bentham was born into a family of legal professionals and thus grew up studying the law.

Because the law had long been the focus of his studies, his time at Queen’s College only amplified his interaction with it. This time period focused his attention to the law and exposed him more fully to the issues he found with it. Through his continued analysis of the legal procedures under which the English courts operated, Bentham found countless shortcomings that he believed to be long overdue for reform. In an attempt to spread his findings and to urge legislators to purse reform, Bentham published multiple works identifying the issues with the existing legal order. His publications were more than just critical evaluations; he also proposed methods for reform and outlined the expectations that he had for the final modernized product.

As a lawyer, Bentham was very well informed about the functioning and theoretical principles of the English judicial system. Although he never practiced, Bentham had the proper background and vested interest in the legal system to thoroughly critique it. During his time at

Queen’s College in Oxford, he was exposed to the procedures of multiple levels of the court system. He sat in on Lincoln’s Inn of the Inns of the Court and later sat as a student of the High

Court in the King’s Bench division.1 His perception of the operation of these courts and the lectures of highly positioned officials revealed the path that his future work would take. Rather than revering the procedural structure of the existing system and the people who held authority within it, Bentham claimed to “immediately [detect] fallacies that underlay the grandiloquent

1 Encyclopedia Britannica, s.v. “Jeremy Bentham.”

4 language” revealing the system’s inherent inadequacies.2 It is no surprise that, following his early refusal to undergo the bar examination due to his lack of desire to be a part of such a corrupt system, Bentham dedicated a great deal of his work to critiquing the system and proposing methods of reform. Bentham “devoted his long life to the production of detailed programs of reform in the subject matter of the law, in the form of its statement, in the machinery of its enforcement, in the institutions of the state; and he insisted on the duty of the legislature to make all these reforms by direct legislation.”3

His reform suggestions were primarily centered on his reverence for judicial evidence and the role that its expanded admissibility could play in advancing the judicial system. He based his procedural and legislative corrections on moral and theoretical concerns. Because of this, his propositions could be utilized by reformers during his time as well as throughout the decades that followed. Although exact reform propositions and suggested legislation could become irrelevant as the world that they would be practiced in changed, their theoretical underpinnings were timeless. Bentham discovered several practices set in place to secure the authority of existing officials to be illegitimate. These corrupt and self-interested legislators and officials were

Bentham’s primary targets in his publications. He accused them as the source of injustice and the reason behind the dated practices at play in the legal system, including the exclusion of the judicial evidence.

Bentham’s bold strategy of targeting the prominent members of society who were the individuals capable of genuinely enacting reform was risky and potentially deterred the immediate spread of his work. However, without making such unprecedented claims, the

2 Encyclopedia Britannica, s.v. “Jeremy Bentham.” 3 Christopher J. Allen, The Law of Evidence in Victorian England (Cambridge University Press, 1997), 6.

5 necessary reform that followed his publications would not have occurred. Despite being a deterrent to his immediate influence, the remaining reform measures Bentham wanted to take could not have been pursued without first rectifying the leadership. This slight delay in the visible impact of his publications is one of the major component that lead historians to question the extent of his influence.

BENTHAM’S CRITIQUES OF THE LEGAL SYSTEM

Bentham pursued change through numerous outlets of communication, but the primary means through which he advanced his ideas was through writing. While his correspondence with legal officials and public proclamations of the need for reform were impactful, they did not survive as successfully as his publications. In 1825 and 1827, Bentham published two books on the inadequacies of the existing legal order, his ideas for reform, and the importance of the utilization of judicial evidence. His works, A Treatise on Judicial Evidence and The Rationale of

Judicial Evidence, were spread throughout England, the United States, and a handful of other western countries. Although Bentham articulated his concerns and theories through other outlets, these books were the most widely utilized by reform activists.

Bentham found countless issues with the courts, legislators, and the laws of his time. He rooted the majority of his arguments and evaluations in his analysis of the importance of judicial evidence. He found the extreme exclusion of evidence to be at the center of the malfunctioning of the existing legal order. This legal system allowed for the exclusion of “evidence or testimony merely from the fear of being deceived.”4 Theoretically, everything has the potential to be falsified and thus allows for the exclusion of all evidence relevant to a case. Bentham found that

4 Jeremy Bentham, A Treatise on Judicial Evidence (London, England, 1825), 255.

6 all other issues that existed in the system stemmed from the lack of evidence utilized in the courts. Believing it to be the cause of most other issues with the legal order, “Bentham had paid as much attention to evidence as to procedure and pleading.”5 Bentham was baffled by the lack of attention given to evidence and could not comprehend how a legal system could exist without the widespread utilization of such a key component. Seeing it as a central facet of the pursuit of , Bentham found that in all types of cases “the duty of the judge is, to collect all the proofs on both sides, in the best form possible; to compare them; and to decide according to their proving power. Thus, the art of procedure is in reality nothing but the art of administering evidence.”6 Thus, Bentham directed the majority of his attention and recommendations for reform towards the admissibility of judicial evidence.

Not only did Bentham view the procedures concerning judicial evidence to be the main shortcoming of the legal system, he also found “the exclusion of all evidence [to] be the denial of all justice.”7 The purpose of a legal system and the procedures of the courts is to pursue jurisprudence and deliver justice. Barring the thorough examination of all available evidence naturally creates an obstacle to justice because “exclusion always produces a certain probability to the prejudice of one of the parties.”8 This clearly forms an inherent disadvantage to the individual under scrutiny. The lack of restraint on judges and the minimal regulations in place in the courtroom discriminated against the individual. Without the inclusion of actual evidence, a trial becomes merely a discussion of opinions, thus defeating the general purpose of a trial.

5 Christopher J. Allen, The Law of Evidence in Victorian England (Cambridge University Press, 1997), 6. 6 Jeremy Bentham, A Treatise on Judicial Evidence (London, England, 1825), 2. 7 Ibid, 227. 8 Ibid, 229.

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Bentham positioned the value of evidence to be superior to all other elements of the legal system. His argument for its broadened inclusion was that, except for a few select circumstances, the benefit of including more evidence far outweighs any potential disadvantages. If evidence

“produces an effect, it is useful; if it produces none, it is harmless.”9 Although Bentham did acknowledge a few exceptions to this assertion, he believed this principle view of the admissibility of evidence to be compelling enough to justify a transition to a broad scope of inclusion. Arguments against the inclusion of all available evidence focused on the potential dangers of the inclusion of false evidence. Bentham found this argument to be partially valid yet inadequate because, “while its admission produces only danger, its exclusion produces an evil which is certain.”10 By this, he means that the inclusion of all evidence could allow for the acknowledgment of some inaccurate information that might inhibit discovering the truth, but its admissibility is pertinent to the journey to deliver justice. One must take a risk and examine all available evidence because there is potential that it will enable the court to discover the truth.

While it is true that there is the potential that falsified information could be considered, that risk is uncertain. But the danger of excluding evidence is far greater because taking such precautions to exclude the majority of evidence would inevitably exclude a great deal of the truth.

Bentham took issue not only with the general exclusion of evidence, but also with the exclusion of specific forms of evidence. He deemed various types of sources to be inferior to others and thus had different rules on inclusion and exclusion depending upon the form of the source. He found witnesses testimony to be the most superior form of evidence. He believed

“witnesses [to be] the eyes and ears of justice.”11 Prior to Bentham’s recommendation for the

9 Jeremy Bentham, A Treatise on Judicial Evidence (London, England, 1825), 180. 10 Ibid, 225. 11 Ibid, 226.

8 inclusion of witness testimony, limitations on its inclusion were excessive. If limitations from all levels of the court in every region of England were combined, “there would no longer be any admissible judicial evidence.”12 While Bentham did want to rectify the vast disorganization of the legal system, exemplified by these inconsistencies in the admissibility of witness testimony, he found that these inconsistencies made it possible for such testimony to be admissible in any capacity. The existing system was so flawed that the perpetuation of one inadequacy made it possible for the system to function sufficiently in another.

Bentham identified countless groups of witnesses that would be automatically excluded from the courts. Although it depended on the region and court, “there [was] no pretext which

[had] not been used, in some country or another, as a reason for excluding whole classes of witnesses.”13 Restrictions ranged from exclusions as broad as gender and age to something as specific as a child testifying against his father. Such sweeping limitations made rendering evidence through witness testimony debilitatingly difficult. Bentham’s identification of such injustices related to the admissibility of witness testimony revealed even deeper issues rooted systematically within the legal system at the time.

By examining the reasons that merited barring an individual from testifying in court, along with other unsubstantiated procedures at the time, ideological fallacies embedded in the government are made apparent. Several limitations stemmed from classifying individuals in accordance to race and gender. Although Bentham was not in pursuit of racial or gender equality, his evaluations of existing limitations shed some light on the discrimination prominent during his time. The judicial system had long been monopolized by affluent white males who viewed

12 Jeremy Bentham, A Treatise on Judicial Evidence (London, England, 1825), 226. 13 Ibid, 226.

9 people of color and women to be inferior and less reliable as sources. In accordance with such beliefs, slaves could not testify against free men and “black people were not considered men when [they were] to depose against a white.”14 These two specific restrictions alone barred essentially the entire black population. Individuals who were both free and enslaved were unable to testify against white defendants. In trials where both individuals were of color, they were able to testify more freely. However, such trials were not as frequent nor were they given comparable attention.

Although the restrictions against women were not as broad, women were discriminated against in a great deal of cases. Women were not only considered to be inferior to men on a general level, their worth was also weighted differently depending upon the relationship in question during a trial. On a basic level, “women were considered to be perpetual children on account of sex.”15 This restriction subjugated women on the basis of gender and intellect.

Regarding women as the equal of a child with an undeveloped brain rendered them virtually incompetent in the realm of law. More specifically, women were barred from testifying against their husbands. Thus, not only were women generally restrained from admitting evidence through the form of testimony in ordinary cases, they were entirely incapable of defending themselves against their spouses. Domestic violence and legal abuses within the family were not debated in court. Husbands could go unopposed by both their wives and children. As children, individuals were also barred from testifying against their fathers.

Bentham found these protections for the father figure to enable a certain blind spot for committing crimes. While legislators viewed the removal of testimony from wives and children

14 Jeremy Bentham, A Treatise on Judicial Evidence (London, England, 1825), 226. 15 Ibid, 226.

10 against the male figure in the house as a prevention of biased and falsified testimony, Bentham believed it created a loophole for all male heads of house to commit crimes unrestrictedly. In contrast to the argument that the inclusion of such personal testimony would disrupt the domestic confidence of the households within the courts’ jurisdiction, Bentham saw those rules as the creation of “certain individuals in whose presence you may commit any crime in perfect security; what is seen only by them is seen by nobody.”16 He did not consider the benefit of protecting the integrity of a family as a unit to be more important than safeguarding the rights of the individuals afflicted by the behavior of the male in the household. This is only one of several situations in which Bentham elevated the rights of the individual to a position of unprecedented importance.

Bentham found the limitations intended to safeguard male heads of house to not only inhibit the pursuit of justice and to disregard the best interest of society. The betterment of society as a whole, including classes of individuals that legislators seemingly disregarded during the construction of legal procedures, was what Bentham believed to be the purpose of the law.

He believed that “it must be presumed, that the laws will, in general, be what they ought to be – instituted for the protection of society; and they ought to be supported by the most efficacious procedure.”17 While analyzing such infractions of justice, Bentham discovered what he thought to be the root of the problem: judges and legislators.

Bentham targeted legislators throughout his books and openly remarked that his propositions for reform were intended for “the legislator; the species of legislator who as yet remains to be formed: the legislator, who neither is under the dominion of an interest hostile to that of the public, nor is in league with those who are.”18 Bentham cited legislators and their

16 Jeremy Bentham, A Treatise on Judicial Evidence (London, England, 1825), 239. 17 Ibid, 244. 18 Jeremy Bentham, The Rationale of Judicial Evidence Vol. 1 (London, England: Hunt and Clarke, 1827), 23.

11 corrupt habits to be the root of every problem within the English legal system. Drawing upon his observation of a lack of rights and protections for the individual, he found legislators to be self- interested and biased in their pursuit of legislation. He claimed that “legislation, instead of being designed [by legislators] to secure the greatest happiness of the greatest number, was designed to secure the creation and preservation of the greatest quantity of happiness to those few persons who had the powers of government, and to their connections.”19 With this one statement, he called into question the legitimacy of the entire legal system and existing legislation.

The issues that legislators and their decisions caused were central to reconstructing the legal system due to their inherently central role in the general operation of a country. The problem at hand was much greater than the corrupt formation of legislation and the implications that they had, the entire legal system and government through which such legislation was developed could never truly function properly. Such corruption of the governing body would affect everything that the judicial branch presided over, for the “most effected by the sinister interests of the judiciary had been procedural law, and within that branch it was evidence law that had suffered most.”20 This byproduct of corruption is where we see where Bentham’s interest in the subject comes into play. His ultimate goal was to expand the admissibility of evidence and subsequently critiqued everything that played a part in the determent of such a goal, including courtroom procedures.

Courtrooms were run in a severely informal manner, placing unnecessary power in the hands of the judges. Bentham found several issues with the way in which authority was allocated and believed the idea of granting such authority to ordinary men to be flawed. In his texts he

19 Christopher J. Allen, The Law of Evidence in Victorian England (Cambridge University Press, 1997), 8. 20 Ibid, 8.

12 remarks that “the power of deciding is given to men whom we are fond of believing to be as superior in wisdom as they are in dignity – men set apart by the state to the task of weighing facts impartially, and of being on their guard against all fallacies.”21 He believed the men that the state selected to be in positions of power to be nothing more than ordinary men who happened to be granted limitless powers.

These ordinary men deemed worthy of such authority were able to have total control over the legal proceedings in their jurisdiction, rendering individuals on trial defenseless. Even with the help of lawyers in some instances, having counsel for both parties involved in a trial was rare for the majority of the nineteenth century. This meant that individuals on trial were quite literally at the mercy of the judge, who was not likely to be in their favor. The existing court room procedures barred individuals from a protection central to the pursuit of jurisprudence: the right to a fair trial. Without limitations on the behavior of the judges, they were able to act in accordance to their own will and not that of the people.

The powers of the judge were unbelievably unrestrained and played a role in barring the deliverance of justice. The presence of a was merely a veil to disguise the complete monopoly judges retained over the outcome of a case. Judges were able to speak freely and informally with jurors throughout a trial as well as advise the jury on the verdict they should reach, thus eliminating the purpose of a jury. If these tactics proved to be inadequate, the judge was able to require a jury to deliberate the case even further if they produced a verdict the judge disagreed with. Such close contact with the jury “meant that there was little need for the judge to become concerned with formal directions designed to protect the defendant, or to worry about

21 Jeremy Bentham, A Treatise on Judicial Evidence (London, England, 1825), 9.

13 the quality of evidence admitted.”22 Individuals were most often judged without a defense, a jury, or the inclusion of evidence. The court system thus seems merely like a formality put in place to protect the government from scrutiny for not providing individuals with the appropriate rights and protections.

Bentham blatantly called into question the integrity of the prominent individual deeply embedded in the system whose procedures he found to be debilitatingly corrupt. His bold claims and open disregard for those capable of productively heeding his advice tainted his public reputation as well as the credibility of his publications. His unprecedented accusations resulted in a mixed reception of his work by his contemporaries and historians alike.

REACTIONS TO BENTHAM

As time has passed since Bentham’s initial attack on nineteenth century British legal procedures, the evaluations of Bentham and his theories on legal reform have generally become more favorable. The passage of time has inevitably allowed analysists to consider the realities of the legal systems Bentham discussed. However, due to the aggressive form his writings took on,

Bentham is still “widely viewed as the most hostile and uncompromising critic of rules of evidentiary exclusion.”23 Thus, although some historians recognize the legitimacy of Bentham’s claims, the unprecedented nature of his critiques of the legal system rendered many of his contemporaries unreceptive. Bentham’s critical evaluation of the legislative and judicial officials made the potential for broad support of his arguments unlikely.

22 Christopher J. Allen, The Law of Evidence in Victorian England (Cambridge University Press, 1997), 3. 23 Laird C. Kirkpatrick, “Scholarly and Institutional Challenges to the Law of Evidence: From Bentham to the ADR Movement,” Loyola of Los Angeles Law Review 25, no. 3 ( April 1992), 839.

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Regardless of the legitimacy of Bentham’s critiques of the legislative body, his public denouncement of their work inhibited the spread and immediate impact of his teachings. In order to enact legislative reform to expand the admissibility of evidence and obtain more rights for the individual, Bentham needed the attention and support of those capable of pursuing legislation.

He immediately disadvantaged himself in this endeavor by harshly ridiculing the exact individuals he needed on his side. As a result of his bold critiques, legislators very harshly criticized, not only Bentham’s publications and ideas, but Bentham himself. The public was thus presented with minimizing remarks by their trusted public officials. Many members of the public were thus inherently inclined to distrust Bentham and the legitimacy of his theories. As a result of this conundrum, Bentham’s hope for success was through the dissemination of his ideas through other channels.

Even the few contemporaries who agreed with Bentham’s evaluations of the legal system, at least in part, found them too radical for practical implementation. In 1827, John Stuart

Mill agreed with Bentham about the shortcomings and issues with the judicial system in Britain.

This political philosopher, however, was far more sympathetic to the concerns that legal professionals had regarding a reform of the “most difficult, as well as important branches of the law.”24 He argued that as “bad as the English system of jurisprudence is, its parts harmonize tolerably well together; and if one part, however bad, be taken away, while another part is left standing, the arrangement which is substituted for it may, for the time, do more harm by its imperfect adaptation to the remainder of the old system, than the removal of the abuse can do good.”25 This assertion reveals that Bentham’s calls for reform may have been classified as

24 Jeremy Bentham, The Rationale of Judicial Evidence, Vol. 1 (Hunt and Clarke, 1827), 15. 25 Ibid, 18.

15 radical at the time because he was the only one willing to take such bold steps to reform a system that was long overdue for change.

Rather than combat Bentham’s claims with evidence of their alleged inaccuracy, some critics argued that Bentham was uninformed in the legal sense and that he was thus unqualified to evaluate the legal procedures at the time. Sir James Stephen asserted that “[Bentham] was too keen and bitter a critic to recognize the substantial merits of the system which he attacked; and it is obvious to me that he had not that mastery of the law itself.”26 While passion does not equate to competency, the way in which Bentham discussed the procedures of evidence and the detail in which he wrote them lead one to believe differently. Critics like Stephen disregard Bentham’s extensive background in legal matters as well as his years of higher education studying the law.

However, Bentham’s colleagues’ harsh evaluations reflect more about the closedmindedness of legal theorists and legislators at the time than they do about Bentham’s comprehension of the existing legal system. They regarded Bentham as an extremely liberal theorist who was too radical for his time. As scholars and critics have had more separation between Bentham’s publications and the legal reform that followed, it is evident that Bentham’s arguments were not unmerited at all. It is because of the unprecedented nature of his claims that created the controversy over the relevance and validity of his arguments. According to Sir

William Holdsworth, “Bentham was the first English lawyer to think out a comprehensive set of philosophical principles upon which reforms in the law ought to be made.”27 Bentham was brave enough to make accusations against corrupt officials and extensively critique a system that had been long established.

26 James F. Stephen, A Digest of the Law of Evidence (New York, New York, 1886), 19. 27 Christopher J. Allen, The Law of Evidence in Victorian England (Cambridge University Press, 1997), 6.

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Regarding evidentiary law specifically, Bentham has been repeatedly critiqued for the liberal amount of evidence he believed admissible to the courts. Claims regarding his allegedly unrestrained nature were unmerited. These critiques largely disregarded Bentham’s acknowledgment of the need for a degree of continued restraint. Despite his admiration for evidence and desire for it to be thoroughly utilized in the courts, Bentham very clearly outlined several “invalidating circumstances” that should render certain forms of evidence inadmissible.28

Bentham was even in favor of the most fundamental exclusionary rule: the requirement of relevancy. He argued that irrelevant and superfluous evidence must be barred from consideration in trial. He aimed to avoid harassing witnesses unjustifiably and embarrassing parties unreasonably.

Bentham focused on certain types of evidence and enumerated broad and inclusive reasons that would make such forms of evidence inadmissible. For example, one chapter of A

Treatise on Judicial Evidence discusses the “circumstances which diminish the proving power of testimony.”29 The two main factors that Bentham recognized as the key indicators of a trustworthy testimony were the quality of the source and the number of sources. The quality of the source, Bentham theorized, could be identified by his social stature. He found that such general factors, such as social status, could reveal the quality of the source based on education and degree of responsibility to society. The specificity of such an evaluation provides a feasible outline for reform. It is evident, then, that Bentham’s reform propositions were somewhat sympathetic to his colleagues’ concerns.

28 Jeremy Bentham, A Treatise on Judicial Evidence (London, England, 1997), 39. 29 Ibid, 39.

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Though often overlooked, Bentham made qualifications to his own statements and was not as radical as often assumed with respect to his ideas on the behavior of legislators. He knew that “important changes in the law [had to be] made by the legislature.”30 In order to successfully enact the changes he desired, Bentham knew that he must, at least in some capacity, appeal to the legislators themselves. Acknowledging this reality, Bentham reasoned that the acquisition of sources and evidence is more difficult in a court of law when the individuals involved and the complete circumstances of a case were unknown. Bentham reasoned that “judicial tribunals, therefore, must be surrounded by other securities than are necessary in the domestic tribunal,” including the judges he often ridiculed.31

Bentham readily recognized that there would always be some need for the regulation of which information should be admitted to the courts. Bentham also argued that, regardless of which form of evidence was admitted, there would always be discrepancies in how it would be interpreted and applied to a case. Not only is it possible for evidence and testimony to be interpreted in different ways, the way in which a witness recalls a series of events may not be sufficient to discover the truth. Because “there is an intimate connection between perception and judgement; a connection so intimate, that it is often very difficult to distinguish between the sensation and the inference drawn from it,” a witness can, in good faith, submit inaccurate testimony.32 The admittance of incomplete or skewed testimony could, thus, produce an unjust verdict by the jury due to their interpretation and acceptance of such testimony.

Bentham found that there was an inevitable need to evaluate the credibility and applicability of evidence because “the disposition to believe is our habitual state; disbelief is the

30 Christopher J. Allen, The Law of Evidence in Victorian England (Cambridge University Press, 1997), 6. 31 Jeremy Bentham, A Treatise on Judicial Evidence (London, England, 1825), 8. 32 Ibid, 60.

18 exception.”33 This consideration is especially important because , which render the decisions of trials, are composed of members of the general public. This fact can be concerning given that “the portion of the public, capable of judging, is very small in comparison with that which is not.”34 Yet, Bentham argued that the consequences of this are not detrimental to the procurement of justice. Thus, while Bentham did feel the need to filter the admittance of evidence to some extent and in certain circumstances, he generally advocated for the admittance of most available evidence and discredited counterarguments.

He had lofty expectations for the future for the legal system and refused to back down until those visions came to fruition. This extreme dedication attracted some yet alarmed others.

His contemporaries found it to be demanding and futile. Although his contemporaries and several historians consider Bentham’s ideas to be uniformed and radical, there is evidence that his claims were merited and long overdue. It is with the consideration of a number of Bentham’s enthusiastic followers and the reform to follow his work that several contemporary scholars find that “the age of law reform and the age of Jeremy Bentham [as] one and the same.”35 Perhaps his steadfast commitment that his critics believed to be far too aggressive was what emboldened his followers to continue his mission.

EVIDENCE OF BENTHAM’S INFLUENCE

The extent of Jeremy Bentham’s influence on twentieth century legal reform has been debated by his contemporaries and modern historians alike. The examination of Bentham’s correspondences and texts produced by subsequent reformers reveal that Bentham’s theories and

33 Jeremy Bentham, A Treatise on Judicial Evidence (London, England, 1825), 16. 34 Ibid, 77. 35 Christopher J. Allen, The Law of Evidence in Victorian England (Cambridge University Press, 1997), 6.

19 critiques did indeed both directly and indirectly influence legal reformers and the procedural changes they pursued. Multiple cases display Bentham’s direct and indirect influence on the period of necessary legal reform throughout the nineteenth and twentieth centuries; this section focuses on two specific cases: Henry Brougham and John Appleton. While the evidence for

Bentham’s direct influence is less prevalent than that of his indirect influence, these cases make it indisputable that Bentham was the driving force behind a great deal of reform.

Sir Henry Brougham and John Appleton were two crucial players in the wave of legal reform for their respective regions following the publication of A Treatise on Judicial Evidence and The Rationale of Judicial Evidence. These men represent the spread of Bentham’s publications in both England and the United States and confirm his direct impact on legal reform.

Their open discussion of Jeremy Bentham and his teachings leave no room for debate that

Bentham inspired the reformation of an inadequate and antiquated system.

The first case that provides evidence of Bentham’s direct influence on legal reform achieved involves Lord Chancellor Henry Peter Brougham. Prior to becoming Lord Chancellor in 1830, Brougham was a liberal leader in the House of Commons who aggressively pursued legislation to reform the English legal system. Just two years before assuming the role of Lord

Chancellor, he gave a speech before the House regarding several procedural issues he had observed in England. In “A Speech on the Present State of the Law of the Country,” Brougham utilized arguments that clearly mirrored Bentham’s critiques of the legal order. Bentham laid the foundation for Brougham’s successful campaigns within the House.

Several points raised in this speech demonstrate that Bentham’s ideas resonated with

Brougham and that, as Lord Chancellor, he would pursue reform. One specific portion of his speech in which this is plainly evident is during his discussion of the lack of uniformity in the

20 court system, an inadequacy which Bentham emphasized greatly. Brougham demonstrated the practical effects of such a shortcoming by relaying the frustrations of a victim of the court systems: “He complained of the different treatment of wills in different courts. In the civil courts no evidence was admitted upon them but in writing. In the common law, written evidence was excluded, and none but parole evidence admitted…The rule should be the same in every court; one rational, uniform, and consistent law should guide them all.”36 Both Brougham and Bentham found that such procedural discrepancies throughout the court system compromised jurisprudence. The specificity with which Brougham discussed this and other issues that

Bentham identified reveals the connection between the arguments of these individuals.

In fact, Brougham was in direct contact with Bentham while preparing this speech. In

1827, Brougham transitioned his career into a constant pursuit of legal reform. After making such a bold decision, he turned to Bentham. His speeches and campaigns appear to be “carefully constructed Benthamite initiatives[s].”37 Correspondence between the two proponents of legal restructuring have been discovered which reveal Brougham’s intent to spread the ideas that

Bentham first published. He reached out to Bentham for council on the construction of a speech to attack the common law. They discussed strategies to avoid ridicule and to make his speech in the House as impactful as possible. Brougham wrote to Bentham that “he would make a speech, using all his powers of invective, sarcasm and irony to attack the common law.”38 Further, their correspondence reveals a mutual admiration that the two men shared for each other and their work. In response to Brougham’s speech preparations, Bentham replies in a manner that reveals

36 Henry Brougham, A Speech on the Present State of the Law of the Country: Delivered in the House of Commons on Thursday, February 7, 1828, (London, England: A. J. Valpy, 1828), 42. 37 Michael Lobban, “Henry Brougham and Law Reform,” The English Historical Review 115, no. 464, (November 2000), 5. 38 Ibid, 5.

21 this sentiment: “My dearest boy, I could this moment catch you in my arms, toss you up in the air, and as you fall into them again, cover you with kisses.”39 The letters sent between these two men make it absolutely undeniable that Bentham played a central role in influencing the changes that were made within the English court system. Brougham utilized Bentham and his experience to successfully pursue the alterations he desired. Thus, the modernization of the court system that involved Brougham were, at least to some extent, the result of the work of Bentham.

Brougham’s position in the House of Commons enabled him to spread the movement for reform more publicly than Bentham’s initial 1825 publication. Some have argued that through his speech in 1828, Brougham himself initiated the push for legal reform. However, “little of what he said was original.”40 This public speech came a few years after Bentham initiated the conversation, but, because of his public office, Brougham was “the man best placed to translate

Bentham’s ideas into practice.”41 Although both were qualified to speak on the subject,

Brougham could more readily obtain the attention of both the public and government officials.

It is further compelling that a highly positioned government official would advocate for such reform while some of his colleagues ridiculed Bentham for making unsubstantiated claims about the state of the legal system. If a man so deeply embedded in the existing legal system resonated with Bentham’s calls for reform and subsequently pursued legislation to bring those ideas into fruition, Bentham’s claims were clearly grounded in the genuine inadequacies of the court system. This instance of Bentham’s direct influence on English legislators completely nullifies several critiques that his contemporaries made. For an individual so involved in the

39 Michael Lobban, “Henry Brougham and Law Reform,” The English Historical Review 115, no. 464, (November 2000), 5. 40 Ibid, 5. 41 Ibid, 5.

22 procedures of the court system to recognize the need for reform, inadequacies were clearly present. Further, for a man who did not openly display his alignment with Benthamite ideals to publicly propose the application of such principles reflects the severity of the problem at hand.

Thus, Brougham not only serves to reveal an instance of the direct and impactful influence that

Bentham had on the wave of legal reform in England, it also serves to solidify the legitimacy of

Bentham’s claims.

John Appleton, a prominent legal official in the state of in the United States, is the second individual that displays Bentham’s direct influence on reform. Appleton served as a

Justice of the Supreme Court of Maine from 1852 to 1862 and later became the Chief Justice of the same court in 1862. He was a proponent of legal reform and had positioned himself in offices that enabled him to successfully pursue such change. Not only was he a proponent of evidentiary legal reform, the same focus as Bentham, he openly proclaimed himself to be an enthusiastic follower of Bentham: “In what I have done, I have only endeavored to apply the reasoning and principles of Bentham, of which I have made free use, to the law as found in the treatises of jurisconsults and the decisions of courts; and if I shall have aided in accomplishing the changes, which I regard as necessary and indispensable, I shall be abundantly rewarded for my labors.”42

Being such a devout Benthamite, Appleton was able to expand upon his ideas for reform by referencing Bentham’s works and essentially serve as his disciple, spreading reform ideas to a whole new audience.

Throughout his career, Appleton campaigned relentlessly for legislation that would produce changes that Bentham advocated. One such campaign led to a major milestone for the

42 John Appleton, The Rules of Evidence: Stated and Discussed, (Philadelphia, Pennsylvania: T. & J. W. Johnson & Co., 1860), 3.

23 rights of the individual on trial. In 1864, he spurred a wave of legal reform in the states by

“[securing] for defendants in criminal trials the right to testify on their own behalf as a result of a campaign which relied heavily on Bentham’s arguments.”43 Setting a pivotal precedent, “Maine became the first common law jurisdiction in the world to allow this.”44 Several of the surrounding states, including , Connecticut, New York, , and New

Jersey, subsequently granted criminal defendants the right to testify. “Within twenty years, most states had followed Maine’s lead, and, before the end of the [19th] century, all but Georgia had abolished the disqualification.”45

While this reform is compelling for multiple reasons, the location of its success is quite significant. The fact that it occurred in the United States of America reveals the reserved and conservative nature of British officials. The delay of English legislators in joining the reform movement can be explained, “in part, by the ‘extreme caution and tardiness’ of English lawyers to adopt an innovation in their legal system.”46 In addition, Bentham’s ridicule of English legislators and judges minimized the potential for their support. Thus, Bentham’s “demand for reform fell upon unheeding ears” in England.47 “In Bentham’s own country progress was delayed,” yet across the Atlantic, legislative reform inspired directly by his writings was adopted by the bulk of the United States.48

43 Christopher J. W. Allen, The Law of Evidence in Victorian England (Cambridge University Press, 1997), 11. 44 Ibid, 11. 45 Robert Popper, “History and Development of the Accused’s Right to Testify,” Washington University Law Review 4 (January 1962), 464. 46 Ibid, 464. 47 Frederick N. Judson, “A Modern View of the Law Reforms of Jeremy Bentham,” Columbia Law Review 10, no. 1 (January 1910), 41. 48 Robert Popper, “History and Development of the Accused’s Right to Testify,” Washington University Law Review 4 (January 1962), 464.

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Appleton did not just utilize Bentham’s publications to enact legislation within his own jurisdiction; he also wanted to make those teachings accessible to the public. In 1860, Appleton published his own book, The Rules of Evidence: Stated and Discussed. In addition to campaigning for reform, Appleton was determined to facilitate the spread of such reform ideas throughout the young nation. After reading the works of Bentham addressing legal reform and evidentiary law, Appleton realized that such text was “not readily accessible, and [was] so voluminous.”49 It occurred to him “that a careful examination of the more important rules of law, as to the admission and exclusion of evidence, and the differing modes adopted in its extraction, as settled by courts of law and equity, would not be without interest to the legal profession and would be of utility to the public.”50 Thus, he set out to describe and apply Bentham’s ideas and theories in a manner comprehendible for general readers. Appleton thus played a great role in ensuring that Bentham’s teachings spread throughout the United States.

Instances proving Bentham’s direct influence, like Brougham and Appleton, are the exception rather than the norm. The majority of evidence of Bentham’s influence has been indirect or inferred. Several theories have been proposed to explain this occurrence. Historians have discovered that it is incredibly common to “find persons who advocated evidence law reform using arguments that Bentham had presented, but without acknowledging Bentham as their source.”51 Over the course of time, ideas for reform were transmitted through numerous sources and were altered to suit each jurisdiction that they may be implemented in. Twentieth century historian, S. E. Finer, focused on this idea in order to theorize how the bulk of

Bentham’s ideas were spread throughout the world. He purports that Bentham’s ideas were

49 John Appleton, The Rules of Evidence: Stated and Discussed, (Philadelphia, Pennsylvania: T. & J. W. Johnson & Co., 1860), 3. 50 Ibid, 3. 51 Christopher J. Allen, The Law of Evidence in Victorian England (Cambridge University Press, 1997), 12.

25 primarily spread through a “complex process of absorption and interpretation by others involving three elements,” irradiation, suscitation, and permeation.52 In order for such complex ideas to be spread sufficiently, they required the interpretation of others. He considered Jeremy Bentham’s followers, Benthamites, to be the catalysts behind the spread of these teachings.

Finer concluded that the process of disseminating Bentham’s ideas followed generally through three elements. The first, irradiation, was “the process by which small knots of

Benthamites attracted into their salons, their committees, and their associations a much wider circle of men whom they infected with some at least of their enthusiasm.”53 The most effective step to spreading ideas is to expand the pool of individuals who could further educate the masses with such thoughts. Increasing the population of Bentham enthusiasts and reform advocates in the western world facilitated the efficient spread of his suggestions for reform.

Once an extensive following had been established, Finer found that they essentially functioned as a branded organization with marketing efforts and publicity stunts. The second step in the process was referred to as suscitation, “the process of arranging public inquiries or the press or both together in such a way as to create a favorable public opinion, of a temporary kind, amid influential groups in the country.”54 The purpose of this was to create the illusion of widespread support for Bentham’s critiques of the existing legal order and his suggestions for reform. Due to Bentham’s direct attacks on legislators and legal officials in his books, it was challenging to convince them that his remarks were indeed merited. Benthamites thus made extensive efforts to create the sentiment of broad support. Benthamites did this in the hopes of revealing to legislators that change was justified and desired by the people. Because Bentham’s

52 Christopher J. Allen, The Law of Evidence in Victorian England (Cambridge University Press, 1997), 11. 53 Ibid, 11. 54 Ibid. 11.

26 ideas could never truly be implemented without the support of the legislators capable of enacting such reform, this step in the process of dissemination was pivotal to the eventual success of legislative and judicial reform.

Although existing legislators were pivotal to reform, embedding Benthamites throughout the system was central to its success. Finer found that one further attempt at initiating change was through permeation. Influencing existing officials was not enough, so Benthamites attempted to “[secure] official employment [for themselves] and thereafter [used] this position to promote Benthamite policies and further irradiation and suscitation.”55 Securing positions within the system they were attempting to reform allowed Benthamites to perpetuate their process of dissemination, but on an amplified level. The spread of Bentham’s ideas through this method removed him as the direct source of ideas for those who were influenced by his followers. This then does serve as an explanation for why Bentham is not consistently cited for initiating reform.

While some Benthamites were successful in spreading his ideas, those on the receiving end of the process were not directly associated with or familiar with Bentham himself.

Because Bentham was often heavily critiqued by his scholarly contemporaries and legal officials at the time, his ideas had to be disseminated in a way that made them more favorable to the public. Such a process enabled individuals and communities to learn about the reform suggestions that Bentham advocated without even knowing where the ideas originally came from. The subsequent alterations that were made as a result of such reform suggestions were thus not traced back to Bentham. As a result, many of his contemporaries as well as later scholars underestimated Bentham’s impact. The chain of dissemination and interpretation of his teachings

55 Christopher J. Allen, The Law of Evidence in Victorian England (Cambridge University Press, 1997), 11.

27 that some historians propose to the be the cause of a lack of bountiful instances of direct influence is also confirmed through the analyzation of Appleton’s work. Once information has been presented to the masses, it becomes accessible to anyone to subsequently relay to others.

During that transmission of information, the citation of Bentham as the source of inspiration becomes less likely. Thus, the variations of his teachings that were utilized throughout the century of legal reform may not directly reference Bentham or his books, but they parallel them in a manner that allowed his recommendations for change be implemented. In addition, both

Appleton and Brougham serve as concrete proof of Bentham’s direct role in the implementation of legal reform. It is irrefutable that the spread of his theories elicited change within an arguably rapid amount of time.

CONCLUSION

As time has progress, scholarly opinions on Jeremy Bentham have progressed over time.

What began as critical disregards for his theories on legislative and judicial reform, transformed into relatively more favorable analyzations acknowledging the merit of his statements. Bentham, while far too radical and liberal for his contemporaries in nineteenth century England, was simply ahead of his time. He recognized the extensive inadequacies of the existing Anglo-

American legal systems and sought out to rectify such atrocities. The unprecedented nature of his evaluations and recommendations for reform rendered them inapplicable in the minds of his colleagues. However, reflecting upon the legal systems in place during his life, it is plainly evident that they were in need of modernization.

These inadequate legal systems were not designed or regulated in a manner that facilitated the pursuit of jurisprudence. Bentham recognized this as well as the legal disregard for the rights and protections of the individual. Perhaps one of his most bold decisions was to

28 blatantly call into question the integrity and merit of legislative and judicial officials. Bentham’s observation of the vastly unregulated courtroom procedures, unrestrained authority of judges, and moral shortcomings of legislators placed him in opposition to the individuals capable of enacting reform.

Through questioning the legitimacy of some of the most trusted members of society,

Bentham inevitably rendered the realistic potential for immediate reform unlikely. The public was inclined to trust those with whom they trusted, even if for illegitimate reasons. Although legislators found Bentham’s work to be unsubstantiated and too radical for application, these doubts and critiques were mostly rooted in personal sentiments rooted in Bentham’s distrust of the system. While this initially contributed to a brief delay in the implementation of legal reform, his calls for reform were long overdue and thus eventually pursued.

In 1853, just a short period of time after the publication of A Treatise on Judicial

Evidence and The Rationale of Judicial Evidence, the Common Law Commissioner of England remarked that an “outstanding feature of the English law of evidence as it operated in the superior courts of common law [was] the extent to which it prevented potential witnesses from giving testimony.”56 By 1853, “the abolition of these restrictions had just begun, and it took until the end of the century to get the job done.”57 Even by the end of the century, reform was not complete. The changes made within roughly seventeen years of Bentham’s publications were so profoundly noticeable that they revealed how overdue such reform was and how inadequate the existing system had been. This timeline of reform and the successful reform campaigns of Sir

Henry Brougham and John Appleton invalidate claims that disqualify Bentham’s influence.

56 Christopher J. Allen, The Law of Evidence in Victorian England (Cambridge University Press, 1997), 1. 57 Ibid, 1.

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These three instances alone make it clear that Bentham did indeed influence the way in which legal modernization was implemented. Brougham reveals that, despite Bentham’s generally sweeping ridicule of legislative officials, some legislators in England were receptive of his remarks. Further, this shows that Bentham’s calls for reform were legitimate. If an individual whose own career was called into question can support Bentham’s suggestions, they were necessary at least to some extent. The case of John Appleton provides evidence that Bentham’s influence was not limited to his own country of England. Rather, his writings spread across the

Atlantic and inspired unprecedented reform.

A judicial system in which the rights of the individual are not considered and evidence is deemed inadmissible seems unfathomable when compared to modern Anglo-American legal systems. However, this was the reality for individuals at the mercy of the law prior to Jeremy

Bentham’s recognition of the need for reform. In spite of the initial backlash Bentham’s reform propositions received, there is evidence of his direct and indirect impact on legal modernization.

In light of my examination of the period of legal modernization, I find it indisputable that Jeremy

Bentham played a pivotal role in legislative reform.

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Appleton, John. The Rules of Evidence: Stated and Discussed. Philadelphia, Pennsylvania: T. &

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Bentham, Jeremy. A Treatise on Judicial Evidence. London, England, 1825.

Bentham, Jeremy. The Rationale of Judicial Evidence. Vol. 1, London, England: Hunt and

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Brougham, Henry. A Speech on the Present State of the Law of the Country: Delivered in the

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Judson, Frederick N. “A Modern View of the Law Reforms of Jeremy Bentham.” Columbia Law

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Kirkpatrick, Laird C. “Scholarly and Institutional Challenges to the Law of Evidence: From

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Popper, Robert. “History and Development of the Accused’s Rights to Testify.” Washington

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Stephen, James F. “A Digest of the Law of Evidence.” New York, New York, 1886.

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