r.'[91] On the other
hand, in the French system, the jury is really an 'excrescence'
introduced by an afterthought. Now, says Fitzjames, the 'inquisitorial
theory' is 'beyond all question the true one.' A trial ought obviously
to be a public inquiry into a matter of public interest. He holds,
however, that the introduction of the continental machinery for the
detection of crime is altogether out of the question. It practically
regards the liberty and comfort of any number of innocent persons as
unimportant in comparison with the detection of a crime; and involves an
amount of interference and prying into all manner of collateral
questions which would be altogether unendurable in England. He is
therefore content to point out some of the disadvantages which result
from our want of system, and to suggest remedies which do not involve
any radical change of principle.

This brings out his divergence from Bentham, not in principle but in the
application of his principles. One most characteristic part of the
English system is the law of evidence, which afterwards occupied much of
Fitzjames's thoughts. Upon the English system there are a great number
of facts which, in a logical sense, have a bearing upon the case, but
which are forbidden to be adduced in a trial. So, to make one obvious
example, husbands and wives are not allowed to give evidence against
each other. Why not? asks Bentham. Because, it is suggested, the
evidence could not be impartial. That, he replies, is an excellent
reason for not implicitly believing it; but it is no reason for not
receiving it. The testimony, even if it be partial, or even if false,
may yet be of the highest importance when duly sifted with a view to the
discovery of the truth. Why should we neglect any source from which
light may be obtained? Such arguments fill a large part of Bentham's
elaborate treatise upon the 'Rationale of Evidence,' and support his
denunciations of the 'artificial' system of English law. English
lawyers, he held, thought only of 'fee-gathering'; and their technical
methods virtually reduced a trial from an impartial process of
discovering truth into a mere struggle between lawyers fighting under a
set of technical and arbitrary rules. He observes, for example, that the
'natural' mode of deciding a case has been preserved in a few cases by
necessity, and especially in the case of Courts-Martial.[92] Bentham was
not a practical lawyer; and Fitzjames had on more than o