| Book Review | Law and History Review, 17.1

Book Review

The Law of Evidence in Victorian England,

At the beginning of the nineteenth century, those with the greatest knowledge of the facts relevant to a legal dispute were often barred from giving testimony in British courtrooms. Defendants, for example, were forbidden from testifying under oath in criminal cases. In civil cases, the parties themselves were kept out of the witness box. Those lacking religious belief were also excluded. By the end of the century, as numerous statutory reforms gradually eliminated these exclusionary rules about the competence of testimony, the landscape had changed considerably. Criminal defendants, interested parties, and atheists were now welcome to give evidence.

In its broad outlines, this story is well-known—indeed, it constitutes the received wisdom about the transformation of nineteenth-century law of evidence. This dramatic expansion of testimonial competence has, however, received surprisingly little sustained scholarly attention. Christopher Allen's The Law of Evidence in Victorian England fills this void by looking closely at the statutes that brought about these transformations and their broader context.

Allen provides substantially more detail than any previous account regarding the various legislative efforts to remove the different forms of disqualification, including both successful bills and the many unsuccessful endeavors. His analysis of the arguments put forward in Parliament for and against the various bills and his description of how principled support or opposition for reform combined with practical legislative politics are interesting and well-executed.

One of the book's central goals is to debunk the conventional wisdom that credits Jeremy Bentham as intellectual godfather of this array of legislative changes. Allen aims to replace the story of "one man and the legislation that his writings inspired" (7) with a more complex tale, one in which the leading roles are played by broader social transformations such as increasing secularism; heightened concern for the protection for property; greater attention to individual responsibility; and growing concern over the potential injustice caused by the exclusion of key witnesses or innocent defendants. Local politics, a desire to harmonize procedures across courts, and the increased role of counsel in criminal trials are cast in supporting parts. Bentham still has a role in this revised story, but he is no longer the leading player.

Allen succeeds in showing that Bentham's ideas were not the exclusive, or even the most important, cause of the evidentiary reforms. Benthamite notions were not accepted in full by any of the reformers (91). And some of Bentham's most strongly held beliefs failed to take hold. The privilege against self-incrimination, for example, which Bentham despised, not only continued but grew more entrenched (184). Moreover, Bentham's criticisms were, at root, directed at all technical rules of evidence, all of which he saw as enriching "sinister interests" and giving power to "Judge & Co." (54). In fact, as Allen shows, reforms generally occurred with the consent and approval of substantial portions of the legal establishment and the judiciary, not against their wishes (115-18, 152, 181-82). Furthermore, judge-made rules of evidence grew in complexity and significance over this period, rather than being replaced by the less rule-based and more commonsensical approach that Bentham advocated (14-49). Allen thus shows persuasively that the changes in evidence law cannot be construed as a wholecloth embrace of Benthamite principles.

Finally, Allen suggests some deeper causes for reform entirely separate from Bentham and his ideas. He indicates, for example, that the statutes allowing religious dissenters and atheists to testify were prompted by growing religious skepticism and a diminishing belief in the need for religion as social cement (67-76). And Allen identifies the growing commitment to notions of individual responsibility as spurring reform of the prohibition against defendants' testimony (173-75). These claims, while interesting, are explored in a cursory manner, and Allen's sources remain primarily legal and legislative in nature. His discussions of broader social causes for these evidentiary changes therefore remain more suggestive than persuasive.

Allen neither replaces Bentham with some other intellectual spearhead, nor proposes an alternative intellectual genealogy for the reforms. As a result, the discussion of Bentham's influence is framed not as Bentham's ideas versus someone else's, but in terms of Bentham's ideas versus other kinds of causes. As Allen acknowledges, a great many of the specific arguments marshaled for reform did have a Benthamite cast, though typically watered-down.

Still, Allen succeeds in showing that the intellectual impetus for the statutory reforms of the late nineteenth century was not a one-man play with Bentham in the starring role. The problem, of course, is that Allen is arguing against something of a straw man. The claim of Bentham's enormous influence has been made with some frequency—as Allen reminds us, for example, Holdsworth thought "the age of the law reform and the age of Bentham were one and the same" (6). Most of these claims, however, consist of strong but vague assertions about Bentham's influence, not careful attempts to evaluate it. That is, most of us do not need to read Allen's book to know that Bentham did not act as an intellectual prime mover with respect to changes in nineteenth-century evidence law. Of course there were other influences—how could it have been otherwise? How could broader social conceptions about religion; changing notions of justice, fairness, and individual responsibility; local politics; and radical transformations in lawyers' roles fail to influence the way lawyers, judges, and legislators thought about the law of evidence? Even the staunchest advocates of intellectual history rarely claim that the ideas of the great are the exclusive force in history. Enumerating and explaining these other influences is a worthy enterprise, to be sure, but their mere existence is hardly a surprise.

One of book's most fundamental and interesting questions is, unfortunately, left unanswered. Allen notes that the transformation of British evidence law was two-sided—even as the legislature slashed away at testimonial incompetence, judges themselves created ever more technical, finicky rules to govern competent witnesses' testimony. He remarks that the "main problem ... is how to account for the exclusionary, rule-based system that began to govern testimony in court and that was in marked contrast to the moves made in Parliament" (14). In one chapter Allen does look at contemporaneous common law developments (14-49), but this discussion is not integrated into the rest of the book, leaving the reader curious about how the common law developments and the statutory changes relate. Were these transformations connected, or was one a response to the other? Do they genuinely represent opposite tendencies, or do they somehow fit together into a larger intellectual whole?

For a book that claims to tell the story of the Victorian law of evidence "not ... as a self-contained system" but as "a part of the Victorian world to which it belonged—influenced by a variety of social, political and intellectual pressures" (186), the attention paid to this broader world is scant. Too often Allen shows us the arguments employed by members of Parliament, judges, and legal commentators, but fails to put them effectively into a broader intellectual or social context. He shows that the fear of unreliable testimony and perjury diminished (167-70) and that the reluctance to exclude clearly relevant testimony increased, but he never fully explores the causes for these changes. Were there connections between the changes in evidence law and the rise of the professions or the increasing reliance on science and expertise?

Moreover, we are left wondering about the concrete effects of the myriad statutory changes. How did they transform actual trials? Was testimony in fact viewed as more suspect by judges or juries as a result of the inclusion of witnesses with obvious incentives to lie, as some opponents of reform predicted? Did concern over unjustified convictions, one of the central points articulated in favor of allowing criminals to testify, decrease in any noticeable way after the reforms of 1898? Was the legitimacy of the legal system or legal process enhanced as a result of the inclusion of these new classes of witnesses? This is a broad set of questions indeed, and even if Allen can be faulted for not tackling them in a more thorough or sustained way, he must also be lauded for writing a book that raises them.

Yet Allen's failure to consider any of these broader questions narrows the book in both scope and ambition and restricts its potential audience as well. These limitations, though, are particularly understandable given how little attention the history of the law of evidence has received. Allen provides an able and enlightening contribution to an under-researched area, and his book should certainly be of interest to those concerned with the history of the law of evidence, as well as to those concerned with Jeremy Bentham or Victorian legislative processes.

Jennifer L. Mnookin

University of Virginia Law Schoo

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