Front Page Titles (by Subject) CHAPTER XIII.: OF MAKE-SHIFT EVIDENCE. - The Works of Jeremy Bentham, vol. 6
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CHAPTER XIII.: OF MAKE-SHIFT 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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OF MAKE-SHIFT EVIDENCE.
Unoriginal Make-shift Evidence.
Of the several modifications of evidence which are here brought to view in conjunction, under the common appellation of make-shift evidence, the common characteristic is—the circumstance of their being in a greater or less degree untried by those tests which have already been brought to view under the name of securities,—securities against deceptious incorrectness and incompleteness:—untried by those securities in general;—but, in particular, by interrogation, considered as combined with those co-securities, and furnished with those sub-securities on which, in a greater or less degree, its efficiency may have been already seen to depend.
In some cases, the person by whose lips or whose hand the discourse assertive of the matters of fact in question is presented to the ear or to the eye of the judge, is not the individual to whose perceptive faculty these supposed matters of fact are so much as supposed to have presented themselves.
In these cases, by the very nature of the case, so long as the evidence continues in this case, the grand security afforded by interrogation is incapable of being applied to it.
Of this class of cases, hearsay evidence presents the only primeval, and at the same time the most simple and familiar example; especially when, as in the most simple and obvious cases which that appellation is qualified to express, oral is as well the form actually assumed by the actual discourse of the deposing witness, as the form supposed to have been assumed by the supposed discourse of the supposed percipient witness.
A modification, in modern times, not much less familiar, and perhaps still more simple, is that which may be presented to view by the appellation transcriptious evidence. But though in this case, as well as in the other there are at least two sources of information which, by and in proportion to their number (each being exposed to its own causes of deceptious incorrectness and incompleteness, and neither affording, by any additional information, any increase to the probative force of the other,) render the probability of deceptious incorrectness and incompleteness at least twice as great as if there were but one. At the same time, what is little less obvious is, that in the case of transcriptious evidence, the increase given to the probability of incorrectness and incompleteness, is in general beyond comparison less than in the case of hearsay evidence.
In the case of hearsay evidence, the information, supposing it orally delivered by a percipient witness, finds an additional intellect, which has to occupy itself, not only about the tenor, but about the purport of it, and in which it has, as it were, to be remoulded and recast:—and in which, as well as in that of the supposed percipient witness, it finds itself exposed to all those causes of deceptious incorrectness and incompleteness, which, under the appellation of intellectual causes, have already been brought to view.
To the case of transcriptious evidence, scarcely in any degree have these causes any application:—with the tenor alone, as exhibited by the visible signs, has the copyist, unless by accident, any concern;—with the purport, except in case of doubt, for the purpose of determining his conception in relation to the tenor—he has none.
In the case of hearsay evidence, commonly the individuality of the supposed percipient witness, and at any rate the form in which the discourse expressive of his supposed perceptions is supposed to have been conceived, are given and determinate; since if it were not, no regard would be bestowed upon it: in the case of transcriptious evidence, considered simply as such, these particulars may be still to seek. A consequence is—that any of those circumstances by which, in respect of trustworthiness and probative force, evidence is raised above, as well as any of those by which it is sunk below, the ordinary level, may indifferently be found in it.
Extrajudicially written, Make-shift Evidence.
In the class of cases here in question, there exists not, in the nature of the case, anything by which the discourse which presents itself to the judges, or, to speak more precisely, the person whose discourse it is, is rendered incapable of being subjected to the action of those purifying tests; but only, it has happened that he has not been subjected to any of those tests:—the case being, that at the time of the formation, i. e. the writing of this discourse (it being by the supposition a portion of written discourse,) there existed not any external hand in a situation to subject him in respect of it to the action of those tests.
The signs in which the information in question stands expressed, were formed (such at least is the supposition) not for the purpose of being employed to the judicial purpose to which it happens to them to be employed,—or at any rate, not to the purpose of the particular suit, but to some other purpose: in whatsoever state, with a view to that other purpose, they were brought into existence, in that same state having been found, and having, on the occasion in question, been deemed applicable in the character of evidence to the service of justice, in that same state they are pressed, as it were, into that service.
The following are the modifications of extra-judicially written evidence:—
1. Casually-written scripts (including memorandums and miscellaneous letters.)
2. Evidence preappointed ex parte (including mercantile account books and letters.)
3. These, together with evidence which, having been regularly received or extracted aliâ in causâ on the occasion and for the purpose of another cause or suit,—may be termed adscititious, or borrowed evidence.
First modification of extra-judicially written evidence—casually written evidence.
Without much violence, either under the head of a memorandum or that of a letter, may everything that is written be comprised.
Designed for the use of the writer and no other person, it is a memorandum: communicated to any other person, or designed to be read by any other person, it becomes in effect a letter or epistle: published or designed for general publication, a literary work, which is in effect a letter addressed to the world at large.
It may happen, that the operation of the head has been the work of one person, the operation of the hand that of another; as in the case of dictation to a scribe. Anomalies of this kind will come under notice in another place.
Second modification of extra-judicially written evidence—ex parte preappointed evidence.
To the head of make-shift evidence, preappointed ex parte, may be referred any such statement as, though in the nature of it it can scarcely but have been intended to have eventually, in the character of evidence, at least as between some parties, a legal operation, yet, in respect of the sinister interest, under the influence of which it is brought into existence, joined to the circumstance of its not being subjected to the tutelary action of the securities for correctness and completeness, wears upon the face of it a suspicious aspect, and cannot without manifest impropriety be considered as standing, in point of probative force, on a level with ordinary judicial evidence. Of this species of evidence, the sub-modification most in use is composed of mercantile books of account, together with such letters as belong to mercantile correspondence.
Agreeing in respect of design and preparation—agreeing therefore in their nature (were it not for the circumstance expressed by the adjunct ex parte)—with the extensive and highly diversified class of evidence, which under the denomination of preappointed evidence will come next to be considered, they will be seen rather to contrast than assimilate with it, when compared with it, in respect of probative force: in the scale of probative force, the station of preappointed evidence at large being above, that of evidence preappointed ex parte, below the level of ordinary evidence. Why? Because, in the case of preappointed evidence at large, the statement stands clear of the sinister action of self-regarding interest, or if exposed to the action of that powerful cause of deceptions incorrectness and incompleteness has for its security against these imperfections the eventually controuling action of the several antagonizing interests on which the evidence is in a way to operate.
Third and last modification of extra-judicially written evidence—adscititious evidence. Judicial with reference to the cases from which it is borrowed, evidence of this description, is extra-judicial with reference only to the cases in and for which, on the occasion in question, it is borrowed. Parties the same or different;—judicatory the same or of a different country:—if it be of a different country, of a country dependent or independent of our own—amicable with relation to it, or hostile. In the judicatory, if different, the mode of receiving or extracting the evidence the same, or different—by any of these varieties may the nature and probative force of adscititious evidence be diversified.
In point of trustworthiness and probative force, the case in which adscititious evidence comes nearest to evidence received and extracted in the very cause in question, is—where not only the judicatory but the parties were the same. But even here, though the diversity be least, the coincidence is not complete. Opportunity of interrogation—say even undequaque interrogation—the same; parties to avail themselves of it, even these the same: still, if the purpose were in any respect different, the course taken in and by the interrogation may nevertheless be, in a more or less material degree, different from what it is necessary it should be, ere it can exhibit such a picture of the transaction in question as, with reference to the purpose now in hand, shall be a correct and complete one: by this difference, slight as it may be, supposing fresh interrogation neither physically nor prudentially impracticable, a demand, and that a sufficient one, for that operation, may accordingly be produced.
How should it not? If, even in the very cause in hand, after the interrogations which have been propounded, and the answers which have been extracted in consequence, there be reason to think, that by fresh interrogation a matter of fact, capable of demonstrating the propriety of reversing or modifying the existing decision, may be brought to light, it can scarcely be said that such interrogation ought not to be admitted:—and if in that case justice may require the admission of it, à fortiori may it in any case of adscititious evidence.
The more trustworthy the shape is in which the adscititious evidence has been received or extracted,—the less; the less trustworthy the shape,—the greater will be any abatement that may be to be considered as being made, in the trustworthiness and probative force of this relatively extra-judicial, when compared with ordinary judicial evidence.
From the number of the changes capable of being rung upon the several sources of diversification above mentioned, an idea may be formed of the amplitude of the scale that would be necessary to comprehend all the several gradations of which, in the several different cases, its trustworthiness and probative force might be found susceptible.
Modifications of unoriginal Evidence.
In the case of unoriginal evidence, when the imperfection of the evidence has for its cause the want of originality, or (say) unimmediateness,—setting aside the case of characteristic fraud (of which presently,) inwhich the whole body of it together is substituted, by or under the direction, or for the sake, or in favour of the party by whom it is produced and exhibited to the judge,—media of transmission may, in any number, have intervened between the original statement made by the percipient (for in this case, by the supposition, the case really presents a percipient) and deposing witness. So many as there have been of these media, so many different sources (it is obvious) there have been of actual, and—blameable or no—at any rate of more or less probably deceptious incorrectness and incompleteness.
Intervening media, say in any number more than one: in that case by supposing, in the instance of one or more of these intermediate channels, the discourse to have been expressed in the oral form, and again, in one or more, in the already written form,—sub-modifications, in an indefinite multitude, none of them incapable of being realized, may be conceived and denominated. To give descriptions of, and denomination for them, in so far as such an operation presented a prospect of being of use with a view to practice—either to judicial or to legislative practice—is of the number of the tasks, the performance of which will in the body of the work be found attempted.*
Points of Infirmity common to Make-shift Evidence.
Agreeing in this characteristic property, viz. that of their being all of them destitute of the benefit of the salutary scrutiny so often mentioned, the species of evidence included under these two general heads will moreover be seen to agree in two other properties, which find in that infirmity their common cause; with peculiar degree of facility they give admission to two distinguishable causes of deceptious incorrectness and incompleteness, viz. unintentional error, and fraudulent contrivance.
As to this contrivance, the capacity of being taken for the instrument of it being inherent in the very essence of unscrutinizable evidence, it may, with relation to all evidence, for the designation of which the term make-shift evidence has herein been employed,—unoriginal evidence, and extrajudicially written evidence included,—be termed the characteristic fraud.
In all these several cases, the characteristic fraud will be found comprisable under one and the same description: for some sinister purpose, whether immediately his own or that of another person, confiding in the nature of the species of evidence by which the information in question, to how great a degree soever deceptiously incorrect and incomplete, will, by the non-application of the requisite judicial securities, stand exempted from the actions of those tests of truth, a man frames on that ground a body or article of deceptious information, adapted to the nature of the occasion, as well as to that of the dishonest purpose.
Facienda by the Legislator in regard to Make-shift Evidence.
In relation to all these modifications of defectively-constituted evidence, of the course that has presented itself as proper to be taken by the legislator, intimation has in general terms been already given:—so far as prudentially as well as physically practicable to add or substitute to the defectively-framed evidence, evidence drawn from the same original source or supposed source, but, by the application of the requisite securities, so moulded as no longer to labour under the same defects.
So far as practicability in either of these its modes is wanting,—insomuch that, from the original source in question, evidence in any less defective state is not to be obtained,—to do the next best thing in his power—leaving the judge in possession of the evidence, such as it is,—let the legislator do what depends upon his own exertions towards guarding the judge from that deception the danger of which is let in by it:—laying aside for a moment his power, let him employ his wisdom, whatsoever it be, in the endeavour to hold up to view, in the form of instructions, a light to lighten the understanding, and at the same time to serve as a safeguard to the probity of the judge.
As on the several other occasions, so on this, a set of Instructions adapted to this purpose will be found in their appropriate place in the body of the work.*
Of the cause of such unblameable, or at any rate non-fraudulent incorrectness and incompleteness, of which the defectively-constituted evidence is in these its several shapes respectively susceptible,—to give the requisite intimation, as well as to bring to view and lay open the characteristic fraud in the several shapes which, in the case of these several modifications of make-shift evidence, it will have to assume, will be sure to form a principal part of the business of these instructions.
English Practice in regard to Make-shift Evidence.
As on the several other occasions, so on this, to confront with, and throw light upon the picture thus given, of what presents itself as the proper practice, adapted to the nature of the case, sketches will here and there be given, of what, under English law more particularly, appears to have been, in relation to this head, the actual practice.
From one and the same original source, evidence admitted in less trustworthy shapes not admitted in the most trustworthy shapes;—admission given to broken hints, refused to explanations;—ignes-fatui let in, while sunbeams are excluded;—gnats strained at, while camels are swallowed:—such, under this head, is the scene—such is the system of practice which there will be occasion to bring to view.
Of the exclusions put as above, the impropriety must wait for its exposure till the time comes for the chapter allowed to that subject. Against the instances of admission considered by themselves, nothing might perhaps here be to be said; but when these admissions are coupled and confronted with the exclusions put upon evidence in its best shape from the same source, the inconsistency and impropriety of the practice may perhaps be thought already proved, if it should be found to agree with the description given of it.
[* ]Book VI.
[* ]See Book X., and also Appendix A.