Front Page Titles (by Subject) CHAPTER I.: TITLE-PAGE JUSTIFIED. - The Works of Jeremy Bentham, vol. 6
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CHAPTER I.: TITLE-PAGE JUSTIFIED. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 6 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 6.
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Persons for whose use—Non-Lawyers as well as Lawyers.
The extent—the almost boundless expanse of the subject,—the variety of the matters touched upon,—the novelty of the points of view in which many—perhaps most of them—not to say all of them, will be found presented,—the unavoidably consequent novelty of not a few of the terms which it had been found necessary to employ,—all these things considered, it seemed to the author, that a general, and, how slightly soever, yet all-embracing outline, abstracted, and, like “a panorama explanation,” detached from the work at large, for the purpose of preparing the eye for the contents of the more fully-delineated scene, might not be without its use.
Should this be among the instances in which the Greek adage concerning books is destined to find its exemplification, the lighter burthen may at any rate do service, by saving the hand which takes it up, from the heavier load which is yet to come.
The field of evidence is no other than the field of knowledge. On that field, the researches, the result of which form the matter of the present work, extend not, it is true, beyond the case in which evidence is capable of being operative to a legal purpose. But forasmuch as on the whole field of human knowledge there is scarcely a conceivable spot from which evidence may not on one account or another be called for to a legal purpose* —hence it is, that, in effect, the portion cut off from the field of research by this limitation, will be found to be neither very considerable, nor altogether determinate.
Proportioned to the extent of that field will be the number of persons, to whom, in the character of readers, independently of any such misfortune as that of feeling themselves stretched on the rack in the character of litigants, it may happen to find in the work, matter on some account or other not altogether devoid of interest: and in proportion as this supposition comes to be realized, a justification will be afforded to the words, by which, in the title-page, non-lawyers are spoken of as persons to whose use, as well as that of lawyers, it may be found applicable.
Rationale—propriety of the appellative.
The justification of the clause, “for the use of non-lawyers,” having been thus attempted, the word rationale, in the clause “rationale of evidence,” remains to be justified.
To whomsoever, with other than a professional eye, it can have happened to take up a book on the subject of evidence, be the book what it may, it can scarcely have been long, before he saw more or less reason to suspect that in the formation of the mass of rules of which he found it composed, the share taken by that faculty, which, when applied to other subjects, goes by the name of reason, must have been small indeed. Towards any determinate end, good or bad, unless it were the increase of power and profit to the framers—scarcely any symptom of regard: arbitrary will—disguised, or not disguised, by this or that technical figure of speech, the sole, as well as the ever active efficient cause of everything that has been done:—such is the spectacle that will have presented itself to his view.
In matters of law—in matters of legislation at least—reason is an instrument by which means are employed and directed to the attainment of an end. Of legislation the proper end may, it is hoped, without much presumption, be stated as being,—not but there are those who will deny it,—in every community, the creation and preservation of the greatest happiness to the greatest number—or, in one word, happiness: a false end, the creation and preservation of the greatest quantity of happiness to a few, to the prejudice, and in diminution of the happiness of the greatest number:—to a few, and those few naturally and usually the possessors of the several powers of government, with their official subordinates, and their other associates and connexions:—and this, in proportion as the machinery of government is looked into, will almost everywhere be seen to be the end, principally at least, if not exclusively, aimed at and pursued.
As to the faculty called will, its act, volition, has on each occasion, for its causes, interests, acting in the character of motives. In what way these springs of action, with as little assistance as perhaps in any instance was ever received or looked for from the faculty of reason, give existence everywhere to the law of evidence, and more particularly to the law of English evidence, is among those questions, the answers to which will in some shape or other, it is supposed, be found as occasion serves, presenting themselves to the reader in his progress through the work.
Knowledge of the proper remedies is seldom to be obtained without knowledge of the mischief;—for the purpose of remedy, knowledge of the effect is seldom sufficient without knowledge of the cause.
To the non-lawyer, or as in lawyers’ language he is called, the unlearned reader, not only in respect of perspicuity, but in respect of that sort of satisfaction which is afforded by the observation of practical use, under each head, a delineation more or less particular, of the state of the law as it is, would naturally have been in no small degree acceptable;* but with the design of the present sketch, any such illustration would have been altogether incompatible. If the contents of two large quartos could have been compressed into three or four hundred octavo pages, doubtless so much the better; but if they could, the difference would have been so much surplusage. What has all along been within the bounds of possibility, at least whether within or not within the bounds of the author’s ability, has been to excite curiosity: what could only here and there be so much as attempted, has been in some degree to satisfy it.
Remedy supposes mischief. Rules are seldom laid down, but with a view more or less distinct to antecedent transgressions: and, not only upon the rules that will here be seen suggested, but upon the state of the law which during the framing of them was in view, the observation may, for the use of the unlearned reader, afford some light. Accordingly, as often as upon the view of this or that suggestion, the propriety of it may happen to present itself, as being so completely obvious and indisputable as to reflect upon it the imputation of nugatoriness and uselessness, the danger of error will not be great, if his conclusion be—that this dictate of the plainest common-sense stands, in a great part, if not in the whole of its extent, contravened by the practice of English judges.
Thus, if in what ought to be done, a man reads what has not been done, and in what ought not to be done, what has been done, the text itself, may, with the assistance of this short hint, perform the office of a comment.
Should any such question be asked, as how it can have happened that, in the sight of the legislator, in almost everything they did, men thus called, and thus chosen, kept doing that which was evil, the answer, true or not true, will at least be found simple and intelligible. What they did was evil, because to do otherwise than evil, both will and ability were always wanting: will was wanting, because interest was wanting: ability was wanting, because will was.
Of this opposition between what might seem duty on the one hand, and interest coupled with power on the other, the causes, as well as the existence, have been shown already in another work: and to everything that, in the course of the present pages, will be seen indicated in relation to established practice, these observations, short as they are, may afford a clue.
Thus, and thus alone, may be accounted for,—accounted for in crowds,—phenomena which otherwise would have been plainly unaccountable.
When thistles only are sown, grapes ought not to be expected.
As in every other part of the field, so in this:—of that rule of action, on the state of which, everything that is valuable to man is in so high a degree dependent, very different is the representation that would assuredly have been most agreeable to the feelings of the generality of those who live under it, and of none in a higher degree than of him, on whom the task of giving the picture, which is here given of it, has devolved. Unfortunately, by certificates of health, neither in the body natural, nor yet in the body politic, are disorders to be cured.
By means of the relation, the all-regulating relation, constantly and comprehensively kept in view; viz. the relation of means to end, the aim has all along been to give to the branch of legislation here in question the form of an art, and in respect of comprehensiveness as well as precision, the form (but if possible without the repulsiveness) of a science.
[* ]Examples of cases, in which facts, that to a first view might not seem of a nature to come under legal cognizance, have been taken, or may at any time be taken, for the subjects of legally delivered evidence: 1. On the occasion of a dispute concerning the value of things, or of the services of persons employed in the character of instruments, facts belonging to any branch of art, or even of science.
[* ]For the instruction, of the non-lawyer, including the law-student, if any such there be, who being engaged in the study of law as it is, has nerves to endure a sight, or so much as a prospect, so unwelcome as that of law as it ought to be—in other words, who, his prosperity depending upon the depravity of the system, can endure the contemplation of anything tending to a cure, I would venture to recommend the perusal paripassu of Peake’s compendium of the law of evidence.