The thesis shows that the traditional story of
Bentham's great influence on the law of evidence which is to be found, for example, expressly in the writings of Holdsworth and impliedly in those of Hart, can no longer be maintained.
The traditional story had always ignored common law developments in evidence law, preferring instead to
concentrate on nineteenth-century statutory reforms.
The latter had three main concerns: (i) relaxation of the requirement that all testimony should be on oath;
disqualified certain convicted persons from giving tes timony; and, (iii) abolition of rules which disqualified persons, in particular the parties to civil proceedings and the accused in criminal proceedings, from giving testimony by reason of their interest in the outcome of the trial.
Relaxation of the requirement that all testimony be on oath took place in two main stages. Attention was
directed during the first stage, from 1828 to 1854, towards the relief of those who had religious scruples against taking an oath. During the second stage, from 1854 to 1869, reformers directed their attention towards the concerns of those who objected to taking an oath because of their lack of religious belief. It will be argued that it is improbable that Benthamite influence affected the extension of a general right to affirm at either stage, and that the reforms came about as a result of the convergence of two lines of development: one of growing religious scepticism, and the other of increased social stability.
Lord Denman's Act of 1843 abolished those rules of incompetency by reason of criminal conviction that had survived; it also abolished those rules which affected the competency of non-parties by reason of their interest in the outcome of civil litigation. These were reforms which Bentham had advocated and which came about as the direct result of the efforts of Lord Denman, whose
thinking on law reform had clearly been influenced by Bentham's work. However, it will be argued that Denman's position was not that of a convinced Benthamite, and that the success of his legislation depended on a conviction within the legal profession - particularly on the part of the common law judges and the Attorney General - that the reforms were merely a logical extension of previous
common law developments.
The Law of Evidence Amendment Act 1851, which made competent the parties to civil litigation in the superior courts of common law, is the most likely product of
Benthamite influence among nineteenth-century statutes dealing with evidence. But it will be argued that support for this reform was equally consistent with a gradualist approach which relied on the principle embodied in the 1843 Act, and on the extension of existing practices of dispute resolution outside the sphere of the superior courts of common law.
The general extension of competency to persons accused in criminal cases did not take place until more than sixty years after Bentham's death. It will be argued that this development came about primarily because of pressure to provide accused persons with more opportunity to participate in their own trials than they were per mitted under the adversary process that had developed between the last decades of the eighteenth and the early decades of the nineteenth centuries. The reform emerged
largely from debates within the legal profession, whose members carried the debate into the House of Commons where significant numbers of them were members. It is to be seen as the last stage in the hammering out of the relatively new adversary process in criminal trials, and it could not be achieved until a majority of the pro fession was satisfied that it would involve no radical alteration to the recently developed balance of power in criminal trials between judge, counsel and the accused. It will be argued that if there was any Benthamite influ ence at work at this late stage, it must have been
operating in a very weakened form. For example, the 1898 legislation largely protected the accused from compre hensive cross-examination, and thus limited the search for truth which Bentham had declared to be the object of extending competency to the accused. The accused's right to silence, which Bentham had notoriously criticised, was developed by the judges in relation to pre-trial proceed ings during the early decades of the nineteenth century and was recognised by statute in 1848. The accused's
right to silence at trial remained unaffected by the 1898 legislation, and the right to comment on its exercise was limited.
As for common law developments in evidence law, the silence of writers who supported the "great influence of Bentham" story is itself significant. Such developments as did take place, mainly in civil evidence, pointed in a
direction from which Bentham would have recoiled, for it led to the emergence of a judge-made, rule-based system which excluded whole classes of testimony because of supposed lack of weight.