Front Page Titles (by Subject) CHAPTER II.: RELATION OF LAW TO HAPPINESS—OF PROCEDURE TO THE MAIN BODY OF THE LAW—OF EVIDENCE TO PROCEDURE. - The Works of Jeremy Bentham, vol. 6
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CHAPTER II.: RELATION OF LAW TO HAPPINESS—OF PROCEDURE TO THE MAIN BODY OF THE LAW—OF EVIDENCE TO PROCEDURE. - 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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RELATION OF LAW TO HAPPINESS—OF PROCEDURE TO THE MAIN BODY OF THE LAW—OF EVIDENCE TO PROCEDURE.
Relation of Law to Happiness—of Judicature, i. e. Judicial Procedure, to Law.
Theadjective branch of law, or law of procedure, and therein the law of evidence, has everywhere for its object, at least ought to have, the giving effect throughout to the several regulations and arrangements of which the substantive branch or main body of the law is composed.
As to the main or substantive branch, it has for its ultimate fruits happiness and unhappiness, in infinitely diversified and ever-changing proportions; but, in the meantime, for its immediate fruits, it has those fictitious indeed, but indispensably employed, creatures of imagination and language, viz. rights and obligations: rights its sweet fruits, pregnant with whatever is good, whether in the shape of security or pleasure: obligations its bitter fruits, evil in themselves, good in so far as they are the indispensable instruments of all created good, being necessary as well to the creation, as to the preservation, of all law-created rights.
Vain would be the attempt to impose obligations—legal obligations:—vain, therefore, the attempt to give effect to rights—to legal rights—unless, in a state of constant preparation to give execution to the will of the sovereign in this behalf, there existed a mass of physical force, superior to all resistance, which in the ordinary state of political society could be likely in any case to be opposed by private hands; and to which, accordingly, whether by reflection, or by habit and imitation, the members of the community at large were in a state of constant disposition to pay, if not an active, at least a passive and unresisting obedience.
This disposable force—the sort of person or character to whose disposition it stands committed—is that which stands expressed by one common abstract denomination, as employed in the singular number, viz. the judge: the judge, including in that one word all persons—all the individuals—to whom, on any given occasion, for the purpose in question, any portion of that force happens to be intrusted.
It is therefore by means, and in respect of the efficient service of this exalted functionary rendered immediately to the sovereign in his quality of legislator, but through him and in ultimate result to the community at large, that execution and effect—occasionally execution, and thus constantly effect—are given to those expressions—those evidences—those repositories—those vehicles—of the sovereign’s will, which are spoken of under the name of laws.
Relation of Evidence to Judicature.
Be the law or portion of law what it may, antecedently to execution—if not in form, at any rate in effect—if not expressed in words, declared at any rate by actions—comes decision: judicial decision,—in official language called sometimes judgment, sometimes decree, sometimes—itself or its difficultly distinguishable consequences—by various other names, such as rule, order, writ, precept, mandate, and the like.
In every instance in which, expressly or virtually, judgment is thus pronounced, two propositions are expressly or virtually delivered; viz. a proposition concerning the state of the law, and a proposition concerning the state of certain matters of fact—of matters of fact which belong to the case, and to which the law that belongs to the case is considered as applying itself. On the subject of the state of the law, the proposition has for its ground, in the case of written, i. e. statute law, the very words of the law; of that portion of the law, which on the occasion in question is in question:—in the case of unwritten law, a sort of law, of the essence of which it is, not to have any determinate set of words really belonging to it, the supposed purport of some portion of written law, which on the occasion in question is feigned or imagined for the purpose.
Thus much as to law:—in relation to matter of fact, the decision has for its ground the evidence* by which term is on every occasion understood some other matter of fact, which on that same occasion is presented to the mind or sense of the judge, for the purpose of producing in his mind a persuasion assertive of the existence or non-existence of a matter of fact first mentioned, which is always some individual matter of fact supposed to be of that sort, which on the occasion in question the legislator is supposed to have had in view.
Matters of fact being in such or such a state,—such and such (says the legislator) shall be the state of right and thence of obligation:—he who is in such or such a situation comprehended in that state, shall have a right to receive upon demand, such or such a service at the hands of the judge. Placing himself in the plaintiff’s side, “I am in such a situation,” says a man, addressing himself to the judge—“I am in such a situation—it is therefore now your duty to render me that service.”
Thus, on each occasion on which a suit is instituted—a judicial demand preferred,—a service of a nature adapted to the nature of the demand—a service always of the positive cast—is by the plaintiff called for at the hands of the judge. At the same time, if the demand be contested—the suit defended,—a service of an opposite nature—a service of the negative cast—is called for on the part of the defendant,—a service which consists in the non-imposition of those obligations—those burthensome obligations—obligations to act, to forbear, to suffer,—the imposition of which would be necessary to the rendering to the plaintiff the service, be it what it may, which is prayed for on his side.
Meantime, to constitute a foundation for this right, so far as depends upon the matter of fact, there can be nothing but the evidence:—for the reception of which, to the purpose of rendering, in conformity to the will declared as above by the legislator, either the positive service prayed on the plaintiff’s side, or the opposite and negative service prayed on the defendant’s side, according as the plaintiff is or is not in the situation in which he says he is, the judicatory cannot but lie equally open on both sides.
In this state of things, if on the ground of matter of fact it happen to the plaintiff to fail—to fail of making out his right to the service prayed for—he at the same time having that right,—it may be in one or other of three ways, and it cannot be in any ulterior way:—1. Evidence necessary and sufficient to the formation of the ground in question is not forthcoming; 2. Forthcoming and standing alone, i. e. without counter-evidence on the defendant’s side, it fails of obtaining the necessary credence; 3. On defendant’s side, counter-evidence—evidence, the belief of which is incompatible with the belief of that which is adduced on the plaintiff’s side, obtains stronger credence. But by the supposition, the plaintiff has really a right to the service which he demands:—this being the case, what follows by the same supposition is—that in the evidence adduced on the part of the defendant, there is something of incorrectness, or partially-operating incompleteness—something, at any rate, which thereby has produced a deceptious effect on the judgment of the judge.
[* ]Judgment, 1. Ex visu judicis, or from view; 2. From the supposed notoriety of the fact; 3. From the judge’s private knowledge; 4. From the supposed improbability of the alleged fact; 5. Judgment by default, or from non-observance of formalities. In all these several cases the ground of the judgment will be seen to be reducible to the notion of evidence.