Front Page Titles (by Subject) CHAPTER IV.: DUTIES OF THE LEGISLATOR IN RELATION TO EVIDENCE. - The Works of Jeremy Bentham, vol. 6
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CHAPTER IV.: DUTIES OF THE LEGISLATOR IN RELATION TO EVIDENCE. - 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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DUTIES OF THE LEGISLATOR IN RELATION TO EVIDENCE.
List of these Duties.
After what has been said of the relation of judicature to law, and of evidence to judicature, the duties of the legislator, in relation to evidence, will, it is supposed, be found comprisable under the six following heads—under each of which follow a few words of explanation, together with a brief intimation of the sort of regard paid to these duties in English practice. For giving expression to them, the imperative mood has been suggested by grammatical convenience:—
1. For the support of every right conferred, of every obligation imposed by you, do whatsoever is in your power towards the securing existence, and thereafter forthcomingness* to whatsoever evidence may be necessary:—saving on each individual occasion all due regard to the collateral ends of judicature,† as above indicated.
2. Avoid putting an exclusion upon evidence on every occasion on which exclusion of evidence is improper;—as it will be shown to be in every case, except those in which it is called for by a due regard‡ to the collateral ends of judicature.
3. Put an exclusion* upon evidence on every occasion on which exclusion is proper;—as it will be shown to be, on every occasion on which it is called for by a due regard to the collateral ends of judicature.
4. So order matters, as far as may be, that on each individual occasion, whatsoever evidence comes to have been received, shall not, in respect of the degree of persuasion produced by it in the mind of the judge, operate with an effect greater† than its due effect.
5. Nor less† than its due effect.
6. So order matters, that saving always the regard due to the collateral ends of justice, each article of evidence shall, to the mind of the judge, present itself in its best shape:‡ — meaning, by its best shape, that in which it is least likely to be productive of deception—to operate with an effect greater, or with an effect less than what is due.
7. By arrangements of a general complexion, taken beforehand, do what the nature of the case admits of, not only towards securing in each instance, as above, the forthcomingness of such necessary evidence as may happen to have been brought by other causes into existence, but also towards securing existence to such necessary lots of evidence.
N. B. Evidence brought into existence by the operation of the sort of providence thus indicated, will herein be designated by the appellation of pre-appointed evidence.
Regard paid to these Duties in English Practice.
Such, in as far as the view here taken of the subject may be found correct, being the list of the duties or tasks proper to be performed by the legislator—understand always, by the sovereign in his character of legislator—in the field of evidence, a brief intimation of the sort and degree of regard, which, it is supposed, will be found to have been paid in English practice to these duties, may even, in this early stage of the inquiry, be not altogether without its use.
As to the sovereign, considered in his character of legislator, on English ground in particular, in relation to the whole extent of this part of the field of action, the most supine neglect will, on his part, be everywhere but too discernible: arrangements, on which justice is so completely dependent, left, almost without exception, to be made by sinister interest, and interest-begotten prejudice, in the person of the judge:—of the judge who, in this as in all other parts of the field of law, pretending to find already made whatsoever he makes, makes and mars exactly what he pleases. If here and there, to this or that arrangement the touch of the legislative sceptre may be seen applied, it is, in every instance, by the hand of the judge that the instrument has been guided, no symptoms of thinking being anywhere perceptible, on the part of that which should have been, and is spoken of as if it were, the all-directing mind.
1. Under the head of forthcomingness, as above explained, the system of arrangements provided have, in proportion as they have been looked into, been found in a deplorable degree scanty, inapposite, inconsistent, and inadequate. But the system of procedure—judicial procedure at large—being the system to which arrangements of this description properly belong, it can only be in an incidental way that any such deficiencies can meet the eye, in the course of the present work.
2. In regard to the system of exclusion, pursued to so prodigious an extent, and with not less prodigious inconsistency, if the observations that will be brought to view are found just, it will be seen to be groundless and pernicious, to an extent little short of that to which it has been applied.
3. In regard to the applying the exclusion, on any such ground as that of preponderant inconvenience, in the shape of delay, vexation, and expense—thereby embracing the lesser evil in preference to the greater—of any such application of human prudence, scarcely an idea will be to be found:—cases of vexation to a small extent only excepted—cases in which, to the greater part of that small extent, the supposed vexation will be found to be purely imaginary, not having any existence independent of that which is inseparably attached to such infliction, as in the name of punishment or satisfaction (obligation of rendering satisfaction,) cannot but be assumed to be due.
4 & 5. In regard to the affording assistance and guidance to the judge, in forming his estimate of the probative force of evidence, so that in each instance the effect produced by it in the way of persuasion on the mind, may be neither greater nor less than what is its due, this whole quarter of the field will be found a complete blank. Nothing was done, or so much as thought of being done, but by the operation of will:—nothing by assistance afforded to intelligence. Instead of instruction, exclusion employed as above.
6. In regard to shape, putting aside the best, which, as having been originally the only shape, is the most obvious* as well as the simplest shape,—by an abuse of the art of writing, it has been the art and care of the English judge to give (as will be seen) to evidence, in so far as hath lain in his power, the two most deceptious, and in every respect the worst shapes† that could be given to it: in doing which, his own sinister interest has (it will be seen) in various shapes been promoted, while the interests of the public, in respect of truth, morality, and justice, have thereby been sacrificed: nor in this case, on the part of the legislator, have the transgressions of the judge been merely the result of blind confidence reposed in that subordinate;—the sinister interests of the leaders in legislation having on this ground interwoven themselves with, and given effect to, the sinister interests of the judge.
7. Under the head of pre-appointed evidence, it will be seen how badly individual prudence has, on this part of the field, been seconded and supported by legislative providence.
By general rules, which he has seen and suffered to be deduced from practice—from judicial practice—the legislator breeding and nourishing in every bosom the expectation of seeing his enforcing sanction applied to contracts of all sorts—to agreements and conveyances,—while the judge, by unpre-announced and unforseeable exceptions, without reason, and without end, has been violating the engagements taken by these same rules; the legislator looking on, and, by his perpetual connivance, making himself a perpetual accomplice in this perpetual breach of faith.*
[* ]The securing forthcomingness.] Physical compulsion—application of the matter of punishment—application of the matter of reward—such are the means by which, whether it be for the purpose of evidence, or for the purpose of justiciability (including what in technical language is called execution)—whether it be on the part of things or persons—forthcomingness is effected. But to the subject of procedure—not to the subject of evidence, belong the operations which have for their objects the production of these several effects. In a work on the law of evidence, these effects are in general supposed to be already accomplished: the evidence or the person or thing in which it has its source, is already forthcoming, and waits for nothing but the order of the judge. The only case in which evidence is here taken up at any antecedent period, is that which affords room for the sort of evidence brought to view at the end of this list, under the appellation of pre-appointed evidence.
[† ]Collateral ends,] viz. prevention, or avoidance of the evils of delay, vexation, and expense, in so far as unnecessary or preponderant.
[‡ ]Due regard.] The regard here spoken of as due, consists in neither more or less than the observance of the simple and most unexceptionable rule—produce not a greater evil in preference to a less. For the application of this rule to the subject of evidence, see the chapter on Exclusion.
[* ]Exclusion.] On the occasion in question, if the article of evidence in question be not forthcoming, forbearance to cause it to be forthcoming is, in a sort of negative way, putting an exclusion upon it:—exclusion in a positive way is—where the evidence, although it were tendered, would not be received.
[† ]Greater than its due effect;—less than its due effect.] Among mankind at large, the general propensity is—to give to evidence too much rather than too little credence. Although deception may in either case be alike the consequence, yet to prevent too great credence is, in a manner, except where religion has been concerned, the only object of the two, on which, on the part of government, any care has been employed. For this purpose, the only course that has been taken is exclusion:—for fear of deception, exclusion put upon all such evidence, in the instance of which it has been apprehended that, if received, too great credence would be bestowed upon it, and thereby deception, deception put by it upon the judge would be the consequence.
[‡ ]Best shape.] In some instances, evidence is not to be had but in its own shape, and, as it were, ready made; so that all that the judge has to do with it is to receive it.—Examples:—1. Memorandums made for private use; 2. Letters, after or before transmission; 3. Things in general, in the character of sources of real evidence—a modification of circumstantial evidence.
[* ]Most obvious.] Viz. examination viva voce, as before juries—before justices of the peace—before committees of the legislature.
[† ]Worst shapes.] Affidavit evidence, written deposition, taken as in equity court, ecclesiastical court, and admiralty court practice.
[* ]Breach of faith.] Question—where is the breach of faith? It is from judicial practice alone (there being no statute law on the subject) that the general rule, contracts willbe enforced, can have been formed: and by the same practice by which this general rule is indicated, so are the exceptions.—Answer. By its extreme simplicity the general rule takes hold of and fixes itself in every mind:—by their incongruity, unconnectedness, inconsistency, variety, and multitude,—and by the obscurity of the language in which they are expressed—the exceptions are rendered—to lawyers difficulty and imperfectly cognoscible—to non-lawyers, utterly uncognoscible.