The Online Library of Liberty

A project of Liberty Fund, Inc.

• Errata—vol. VI. *
• An Introductory View of the Rationale of Evidence; For the Use of Non-lawyers As Well As Lawyers.
• Chapter I.: Title-page Justified.
• Chapter II.: Relation of Law to Happiness—of Procedure to the Main Body of the Law—of Evidence to Procedure.
• Chapter III.: Ends of Justice On the Occasion of Judicature. *
• Chapter IV.: Duties of the Legislator In Relation to Evidence.
• Chapter V.: Probative Force—whence Measured—how Increased—how Diminished.
• Chapter VI.: Degrees of Persuasion—thence of Probative Force—how Expressible.
• Chapter VII.: Causes of Trustworthiness and Untrustworthiness In Testimony—thence of Belief and Unbelief.
• Chapter VIII.: Of the Securities For Trustworthiness In Evidence.
• Chapter IX: False Securities For Trustworthiness In Evidence—oaths and Exclusions.
• Chapter X.: Of the Reception and Extraction of Evidence, Viz. With the Help of the Above Securities.
• Chapter XI.: Collection of Evidence—english Practice.
• Chapter XII.: Of Circumstantial Evidence.
• Chapter XIII.: Of Make-shift Evidence.
• Chapter XIV.: Of Preappointed Evidence.
• Chapter XV.: Difference Between Preappointed and Unpreappointed Evidence.
• Chapter XVI.: Preappointed Official Evidence.
• Chapter XVII.: Extempore Recordation, How Applicable to Legally Operative Facts At Large.
• Chapter XVIII.: Of Derivative, Including Transcriptious, Recordation, Wherein of Registration.
• Chapter XIX.: Exclusion of Evidence.—general Considerations.
• Chapter XX.: Exclusion Continued—causes For Which It Is Proper Or Not, According to Circumstances.
• Chapter XXI.: Exclusion Continued—causes For Which It Cannot Be Proper.
• Chapter XXII.: Exclusions By English and Other Laws—analytic and Synoptic Sketches.
• Chapter XXIII.: Safeguards Against Suspicious Evidence: Including Instructions Concerning the Weighing of Evidence.
• Chapter XXIV.: Authentication and Deauthentication, As Applied to Preappointed and Other Written Evidence.
• Chapter XXV.: Exclusion and Nullification Applied to Contractual Matter, In So Far As Writing Has Been Omitted to Be Employed In Giving Expression to It.
• Chapter XXVI.: Of the Exclusion and Nullification of Contractual Matter, Informally Though Scriptitiously Expressed, In a Transaction Which Has Been the Subject of Matter Formally Expressed.
• Chapter XXVII.: Imprisonment For Debt:—disguised Exclusion of Evidence Involved In It.
• Chapter XXVIII.: Of the Burthen of Proof: On Whom Shall It Lie?— (a Question Produced By Undue Exclusion of Evidence.)
• Chapter XXIX.: Evidence Considered In Its Relation to This Or That Fact In Particular—why Discarded From This Work.
• Chapter XXX.: Evidence In Relation to Particular Facts and Pleadings Under Technical Procldure.
• Chapter XXXI.: False Theory of Evidence (gilbert’s * )—its Foundation:—precedence Given to Written Before Unwritten.
• Chapter XXXII.: Liberalists and Rigorists—parties Belligerent In the Field of Jurisprudence, and In Particular of Evidence.
• Chapter XXXIII.: Conclusion.
• Appendix A.: Cautionary Instructions Respecting Evidence, For the Use of Judges.
• Chapter I.: Propriety of Cautionary Instructions, In Preference to Unbending Rules.
• Chapter II.: Considerations Proper to Be Borne In Mind In Judging of the Weight of Evidence.
• Chapter III.: Considerations Respecting the Effects of Interest In General Upon Evidence.
• Chapter IV.: Considerations Respecting the Effect of Pecuniary Interest Upon Evidence.
• Chapter V.: Situations.
• Chapter VI.: Makeshift Evidence.
• Chapter VII.: Scale of Trustworthiness.
• Chapter VIII.: Best Evidence, What?
• Chapter IX.: English Law Scale of Trustworthiness.
• Appendix B.: of Imprisonment For Debt.
• Section I.: Its Inaptitude As an Instrument of Compulsion.
• Section II.: Its Inaptitude, Applied As It Is As an Instrument of Punishment.
• Section III.: Its Needlessness Demonstrated By Experience.
• Section IV.: End, Or Final Cause of the Institution—judge and Co.’s Sinister Interest.
• Section V.: Means Employed—mendacity and Usurpation.
• Section VI.: Affidavit Previous to Arrest, Its Unfitness.
• Section VII.: Consequence of the Exclusion Thus Put Upon Evidence.
• Section VIII.: Advocates For the Abolition of Imprisonment For Debt—their Errors.
• Section IX.: Scotch Law—cessio Bonorum, Its Inadequacy.
• Section X.: Agenda—course Proper to Be Taken On the Occasion of Insolvency.
• Appendix C.: False Theory of Evidence—(gilbert’s.)
• Rationale of Judicial Evidence, Specially Applied to English Practice. From the Manuscripts of Jeremy Bentham, Bencher of Lincoln’s Inn.
• Preface.
• Prospective View.
• Book I.: —theoretic Grounds.
• Chapter I.: On Evidence In General.
• Chapter II.: Of Evidence Considered With Reference to a Legal Purpose; and of the Duties of the Legislator In Relation to Evidence.
• Chapter III.: Of Facts—the Subject-matter of Evidence.
• Chapter IV.: Of the Several Species Or Modifications of Evidence.
• Chapter V.: Of the Probative Force of Evidence.
• Chapter VI.: Degrees of Persuasion and Probative Force, How Measured.
• Chapter VII.: Of the Foundation Or Cause of Belief In Testimony.
• Chapter VIII.: Modes of Incorrectness In Testimony.
• Chapter IX.: General View of the Psychological Causes of Correctness and Completeness, With Their Contraries, Incorrectness and Incompleteness, In Testimony.
• Chapter X.: Of the Intellectual Causes of Correctness and Completeness In Testimony, With Their Opposites.
• Chapter XI.: Of the Moral Causes of Correctness and Completeness In Testimony, With Their Opposites.
• Chapter XII.: Ground of Persuasion In the Case of the Judge—can Decision On His Own Knowledge, Without Evidence From External Sources, Be Well Grounded?
• Book II.: —on the Securities For the Trustworthiness of Testimony.
• Chapter I.: Object of the Present Book.
• Chapter II.: Dangers to Be Guarded Against, In Regard to Testimony, By the Arrangements Suggested In This Book.
• Chapter III.: Internal and External Securities For the Trustworthiness of Testimony Enumerated.
• Chapter IV.: On the Internal Securities For Trustworthiness In Testimony.
• Chapter V.: Of Punishment, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VI.: Of the Ceremony of an Oath, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VII.: Of Shame, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VIII.: Of Writing, Considered As a Security For the Trustworthiness of Testimony.
• Chapter IX.: Of Interrogation, Considered As a Security For the Trustworthiness of Testimony.
• Chapter X.: Of Publicity and Privacy, As Applied to Judicature In General, and to the Collection of the Evidence In Particular.
• Additional Notes to Books I. & II. Chiefly With Reference to Alterations Made In the Law Since the Date of the First Edition,— Viz. 1827.
• Book III.: Of the Extraction of Testimonial Evidence.
• Chapter I.: Of the Oral Mode of Interrogation.
• Chapter II.: Notes, Whether Consultable?
• Chapter III.: Of Suggestive Interrogation.
• Chapter IV.: Of Discreditive Interrogation.
• Chapter V.: Of the Demeanour of the Adverse Interrogator to the Witness, Considered In Respect of Vexation.
• Chapter VI.: Of the Notation and Recordation of Testimony.
• Chapter VII.: That the Evidence Should Be Collected By the Same Person By Whom the Decision Is to Be Pronounced.
• Chapter VIII.: Five Modes of Interrogation Compared.
• Chapter IX.: Epistolary Mode of Interrogation, In What Cases Applicable.
• Chapter X.: Epistolary Mode of Interrogation, How to Apply It to the Best Advantage.
• Chapter XI.: Helps to Recollection, How Far Compatible With Obstructions to Invention?
• Chapter XII.: Of Re-examination, Repetition, Or Recolement.
• Chapter XIII.: Of Spontaneous Or Uninterrogated Testimony.
• Chapter XIV.: General View of the Incongruities of English Law In Respect of the Extraction of Evidence.
• Chapter XV.: Mode of Extraction In English Common-law Procedure—its Incongruities.
• Chapter XVI.: Mode of Extraction In English Equity Procedure—its Incongruities.
• Chapter XVII.: Mode of Extraction In English Ecclesiastical and Admiralty Courts—its Incongruities.
• Chapter XVIII.: Incongruities of Roman Law In Respect of the Extraction of Evidence.
• Chapter XIX.: Of Confrontation Under the Roman Law.
• Chapter XX.: Recapitulation.
• Book IV.: Of Preappointed Evidence.
• Chapter I.: Of Preappointed Evidence In General.
• Chapter II.: Of Instruments of Contract In General.
• Chapter III.: Of the Enforcement of Formalities In the Case of Contracts.
• Chapter IV.: Formalities, What Proper, and In What Cases?
• Chapter V.: Of Wills, As Distinguished From Other Contracts.
• Chapter VI.: Of Preappointed Evidence, Considered As Applied to Laws.
• Chapter VII.: Of Public Offices At Large, Considered As Repositories and Sources of Preappointed Evidence. *
• Chapter VIII.: Of Official Evidence, As Furnished By Judicial Offices.
• Chapter IX.: Of Preappointed Evidence, Considered As Applied to Legally-operative Facts At Large.
• Chapter X.: Of the Registration of Genealogical Facts, Viz. Deaths, Births, and Marriages.
• Chapter XI.: Of Offices For Conservation of Transcripts of Contracts. *
• Chapter XII.: Of the Principle of Preappointed Evidence As Exemplified In the Case of Real Evidence (evidence From Things.)

CHAPTER XIV.

OF PREAPPOINTED EVIDENCE.

§ 1.

Its Nature and Origin.

By the term preappointed evidence, may be understood any evidence whatsoever, considered in so far as provision is made for the creation or preservation of it, antecedently to the existence of any right or obligation for the support of which it may happen to serve, or to the manifestation of any individual occasion for the production of it.

Recordation or registration are names by which may be designated, any act which has for its object the creation or preservation of preappointed evidence.

Rights being beneficial things—sources of good to those whose rights they are—sources of every benefit which it is in the power of man to grant or to secure,—thence it is, that of such evidence on which, as on their indispensable foundation, all rights rest, the creation and preservation are operations in every instance prescribed by the same imperious considerations as those by which men’s attention is directed to the obtainment and preservation of those rights themselves.

In so far as the subject-matter of the right, or rather of the aggregate cluster of rights, by which the property of a thing is composed, is of a moveable nature, especially if it be of the number of those things which are not put to use but in proportion as they are destroyed,* the collection of circumstances of which that most variably and mysteriously constituted, howsoever familiar relation called possession, is composed, presents in itself, generally speaking, evidence sufficient for the preservation as well as establishment of these rights.

Differently circumstanced the case in this respect is, where the right has, for its subject-matter, either an immoveable portion of the planetary mass, on some part or other of which all human beings find their place—or this or that particular kind of service which, in virtue of some particular relation, one human being finds himself under the obligation of rendering to another:—in both these cases, to ascertain, and upon all occasions to make known, the existence of the right in question, requires the aid of some permanent sign, or assemblage of signs, in the shape and character of evidence.

When as yet the art of writing was unknown, or not sufficiently in use to be generally applicable to this purpose, feeble and inadequate were the contrivances,—the instruments, or operations,—devised and employed for this purpose: but when this invaluable art was once invented, serving in the character of preappointed evidence, as it was among the most important uses in which it could be employed, so it was among the first in which it actually was employed.

A person, and at first view, even the only person, on whom the care of providing and preserving the evidence necessary to the support of a right naturally devolves, is of course the person to whom the right belongs;—but by the concurrent operation of a variety of circumstances, other persons, it will be seen, are brought upon the stage in great variety, by whom the task of making this provision is necessarily either shared with the person so situated, or even taken altogether out of his hands: to him, if considered by himself, the operation being rendered either physically or (what comes in effect to the same thing) prudentially impracticable:—1. By immaturity of age he may be rendered as yet incapable of any such charge; 2. At the time when the provision requires to be made, he may even be not as yet in existence;* 3. In the right in question, persons, in any number, may have a joint and equally valuable interest, the value of which would, however, in the instance of any one of them, be outweighed and destroyed by the burthen of the task, were he the only person charged with it.†

Another circumstance there is, which would of itself be sufficient to prevent the charge of providing evidence of a right, from resting exclusively on the possessor of that same right, whosoever he may be. The person on whom rests principally the charge, as of giving effect to the right itself, so accordingly of giving correspondent effect to whatsoever evidence may happen to be provided for the support of that same right, is—not the possessor of the right—not any such feeble operator, but the sovereign himself—the person or persons by whose hands, to this and the several other public purposes, the whole power of the state is exercised—the sovereign by authority of the whole community—and by authority from him, though in all ordinary cases without need of recurrence to any special decision on his part, his subordinate the judge.

But on these two persons, in due subordination the one to the other, it depends—not only to what rights, but, for the support of those rights, to what evidence they will lend this sanction—and, as well on the occasion of these rights, as on the occasion of that evidence, on what conditions it shall be lent.

§ 2.

Uses of Preappointed Evidence, anti-litigious, and statistic.

Of the uses to which, in the form and character of preappointed evidence, evidence may be put—of the services which, in that form and character, it may be made to render,—it may not be amiss to present in this place a comprehensive view.

Uses and corresponding services of the first order;—Uses and services of the second order. To effects, good and bad, resulting from human agency, clothed or unclothed with authority, the principle of division thus brought to view has been employed elsewhere,‡ nor, if useful there, will it be less so here.

Uses and services of the first order,—those by which the parties—the known and assignable parties—to the individual transaction in question, or other individual transactions specially connected with it, are served.

Uses of the second order,—those by means of which, on future contingent occasions, in respect of future contingent transactions, following one another in a series without end, it may happen to the at present unknown and unassignable parties to these same future transactions respectively, to be served and benefited.

Uses and services of the first order may again be distinguished into litigious and anti-litigious: litigious, rendered on the occasion of an existing suit or cause; viz. by contributing to give effect to the rights and obligations which come in question in and on the occasion of that cause:—anti-litigious,—services which, though unseen, and even in a certain sense unfelt, are but the more useful, rendered as they are, by nipping in the bud the suits, which, but for the evidence thus expressed and perpetuated, might have sprung up: giving, without ulterior expense, full effect to those rights and obligations to which, in case of actual litigation, effect can neither be given nor sought for, but out of the fire of that furnace.

Uses and services of the second order,—to this head may be referred those which may be termed statistic: services performed by furnishing to the legislator whatsoever information he may stand in need of, for the purpose of judging, from time to time, whether, on those parts of the field of legislation to which the information in question is applicable, anything yet remains to be done of those things, which for the improvement of man’s condition in the community in question, the nature of things admits of.

In other words, it is by helping to form, on the ground of experience, a basis for legislative arrangements, including as well those which at the time in question happen to be actually in force, as any which may happen hereafter to be established.

Such are the parties concerned, and such the distinctions respecting them, in so far as the faculty considered is the sensitive faculty—the faculty in and by means of which man enjoys and suffers.

If the sorts of persons to whom, in respect of the active part of their frame, the information applies, be considered, and the persons in consequence of whose agency, positive or negative, the enjoyment or suffering in question, as above mentioned, may take place,—they will be found to be two sorts of official persons, viz. judges and legislators: the judge as being he by whom, in case of litigation, effect will be given or refused to the rights and obligations of which the evidence in question constitutes, or has been alleged to constitute, the basis:—he to whom, on the other hand, should the anti-litigious tendency of this mass of information ripen into effect, the labour of hearing and determining will be saved:—the legislator, as being the official person, to whose intellectual faculties such services will be rendered, as the body of evidence of which the article in question forms part and parcel, is qualified for rendering, in virtue of its above-mentioned statistic uses; and to whose active faculties the community will be indebted for whatever benefit it may happen, in virtue of its sensitive faculties, to receive from such arrangements, present and future, of which the evidence in question may contribute to form the basis as above.

RECAPITULATION.

Uses and corresponding services applying to the sensitive faculties, viz. of the members of the community considered in the aggregate, uses and services of the first order, and ditto of the second order—Uses and services of the first order, litigious, rendered on the occasion of litigation;—anti-litigious, rendered by the prevention of litigation.

Uses and corresponding services applying to the active faculties, viz. of persons in official situations, acting as trustees for themselves and the rest of the community,—uses and services to the judge—judicial uses:—Uses to the legislator—statistic uses.

Such are the uses to which evidence, considered as produced in the form and character of preappointed evidence, is capable of being put; such the service capable of being derived from it.

§ 3.

Legislator’s Duties in relation to it.

Be the evidence in question—the preappointed evidence—what it may, to provide for the existence of it,—to provide for its subserviency in the highest practicable degree, to the purpose with reference to which it may be of use, under one or other of these two heads the whole duty of the legislator may, it is supposed, be ranged.

Under the last-mentioned of these heads may be considered as included, the obviously proper and unexceptionable condition, that in each instance, the advantage derivable from the evidence shall be such as to afford a reasonable promise of being found preponderant over the expense and vexation attendant on the creation and preservation of it.

Subject to this condition, what may be considered, perhaps, as forming the subject of a separate head of duty, is, the looking out for all occasions on which the creation and preservation of preappointed evidence promises to be in this sense productive of a net balance on the side of advantage:—

1. Subject-matters of preappointed evidence.

2. In relation to each such subject-matter, means applicable to the purpose of rendering the evidence subservient to the several uses to which it is applicable. To one or other of these two heads may be found referable whatsoever ulterior indications will here be to be given of the matters of detail, which in the body of the work will be found under this same head of preappointed evidence.

§ 4.

Subject-matters of preappointed Evidence.

1. Legally operative facts; 2. Contracts;* 3. Transactions of offices belonging to the judicial department; 4. Transactions of offices belonging to the administrative department; 5. Laws and transactions of offices belonging to the legislative department; 6. Registration applied to transcripts; 7. Registration applied to evidence of authorship. To one or other of these subordinate heads may be referred whatsoever observations there may be occasion to bring forward in relation to the subject-matters of preappointed evidence.

In the description of the operations to be performed, viz. by the creation and preservation of preappointed evidence—there will be found a material difference, according as the subject-matter of it is evanescent or permanent:—evanescent, in which case are all human actions, as well as all other events; permanent, in which case are all written instruments—all instruments to which any portions of written discourse, or any other visible marks employed for the communication of ideas, are consigned.

In the case of events, or other evanescent modes of being, all that the nature of the case allows to be done in the way of preappointed evidence, is—to create and preserve the indications of their existence, including their material circumstances: in the case of a permanent instrument as above, there exists, in the character of a subject-matter capable of recordation, in the first place, the fact of its being brought into existence: in the next place, the tenor or purport of its contents.

Correspondent to this difference in the nature of the subject-matter will be seen to be the differences observable in the operations that will require to be performed on, or in relation to it.

§ 5.

Legally operative Facts, considered as subject-matters of preappointed Evidence.

1. Legally operative—to which may be added, or statistically useful—facts. To one or other of two heads—viz. genealogical facts and miscellaneous facts, be their diversity what it may, they will all of them be found referable.

To the head of genealogical facts may be referred, deaths, births, and marriages.

As to marriage, besides its being, in so far as by the act of celebration it is placed, like death and birth, upon a footing with genealogical facts,—by this act a species of contract is entered into—and that the most important of all contracts: considered in this point of view, it will find its place under the head of contracts, as below.

Of legally operative or statistically useful facts of a miscellaneous nature, a sample of considerable amplitude and variety will be found in the note.*

Births, marriages, and deaths, such (need it be said,) had the interest of justice been the objects, would have been the facts consigned to remembrance: unhappily, instead of these, the sinister interests of a church party militant and triumphant, having been the objects, the consequence has been, that to births, marriages, and deaths, have been substituted church-of-England baptism, church-of-England marriages, church-of-England burials. Of the great national family, members in countless numbers excluded from the benefit of such remembrance, as if those and those alone, whose lot had subjected them to the prejudices of a prevailing domineering party, were fit to be born, to marry, or to die.*

§ 6.

Contracts, and Instruments of Contract—Formalities, their use.

Institution of apposite formalities;—provision made for the observance of these formalities: to one or other of these two heads will (it is supposed) be found referable whatsoever expedients may have been employed, or may be found capable of being employed with advantage, to the purpose of rendering preappointed evidence, in its application to contracts, subservient in the utmost possible degree to its appropriate uses.

It may here be asked, what are the objects to which the observances thus exacted require to be directed?

To this it may be answered—1. Securing the intended effect to such contracts as are not unfair: and thence to such instruments of contract as (the contracts themselves not being unfair) are genuine: genuine, that is, neither in the whole nor in any part spurious. 2. Preventing the formation or the effect of—at any rate, the intended effect of—such contracts as are unfair. Preventing the formation, or at any rate the intended undue effect of such instruments of contract as are in the whole or in any part spurious.

Meantime, how far, and for what reason is it desirable, that the formation or intended effect of an unfair contract,—that the formation or intended effect of a spurious instrument of contract—should be prevented? Answer—according to the principle of utility, so far and so far only as the giving to it such its intended effect would to a preponderant amount be productive of mischievous consequences—for this reason, and for this reason only, that to such preponderant amount it would be productive of such consequences.

Under all systems of law, in so far as the principle of utility has been taken for the guide, unfairness on the part of the contract itself—spuriousness on the part of an alleged instrument of contract—have been regarded as conclusive evidence of such preponderant mischievousness. Regarded, and assuredly by no means without reason: always understood, that if, in any case, and in any particular, either in the instance of an unfair contract, or in the instance of a spurious instrument of contract, in the event of its being carried into effect, the balance would, upon the whole—the aggregate interest of the whole community being taken into the account—be on the side—not of mischief, but of advantage; this being supposed, no sufficient reason for refusing to give effect to it would have place: on the contrary, the reason for giving effect to it would, by the supposition, predominate or stand alone.

As to mischievousness, it is, however, only in so far as unfairness and spuriousness are considered as sufficient evidences of it, that, in the case of a contract, the consideration of it belongs to the present purpose. Formalities in some shape or other being scarcely so much as in idea altogether separable from the idea of a contract, hence it is, that the consideration of contracts, considered as subject-matters of recordation, involves in it of necessity the consideration of formalities: and it is only to the prevention of unfairness and spuriousness, and thence, and thus far only, to the prevention of mischievous effects, considered as liable to take their rise in contracts, that formalities, in so far as in the institution of them the principle of utility has been taken for the guide, have been directed.

A contract may be termed unfair, in so far at it is the result of force or fraud: to the head of force may be referred not only physical force, but mental or (say) psychological force, viz. intimidation: to the head of frauds, not only fraudulent discourse or deportment, but fraudulent reticence.

To point out by what obstacles, in use or not yet in use, unfairness and spuriousness may with least inconvenience and greatest promise of success be opposed, is of the number of the tasks, the execution of which will be found attempted in the body of the work.

§ 7.

Contracts continued—Formalities, Means of enforcing Observance.

Formalities of any given description being appointed, for securing observance to them, two appropriate species of instruments, natural and technical, present themselves. The instrument which in this case may be characterized by the epithet natural, is suspicion: that suspicion of unfairness or spuriousness which the non-observance of any such formalities, the observance of which presented itself as prescribed, or, though it were but recommended by the sanction of public authority, would supposing them adequately notified, so naturally, not to say so necessarily, excite.

For designating the natural instrument for securing observance to the formalities attached to contracts, we have the word suspicion: for the technical instrument, one other word suffices, viz. nullification.

As to nullification, if it were possible seriously to consider the use made of this device as having ever had justice for its object, it would be on the ground already indicated, viz. that of a persuasion inferring unfairness, or spuriousness, from the non-observance of this or that one of a set of formalities that had been imposed. But, as to any such persuasion, be it or be it not entertained by men at large, it is certain that cases are not wanting in which it cannot have been entertained by those men of law, by whose power or influence on the alleged ground of the non-observance of this or that formality the contract in question has been rescinded. Why? Because, for the non-observance of that formality (in regard to which, effectual care had been taken to keep it from the knowledge perhaps of all mankind—at any rate, of the vast majority of those who were doomed to sufferance in the event of their not knowing it,) the self-same instrument, the same last will, must, upon this supposition, be deemed to have been either unfair or spurious, and at the same time neither unfair nor spurious:—neither unfair nor spurious as to the bequest of a horse; unfair or spurious as to a bequest of the field in which it feeds.

All this while, in this same case of a last will, under the notion of favour, the observance of these formalities has, in the instances where the testator is a person of this or that description, been dispensed with: as if it were a favour done to a man to enable an impostor to dispose of his property in his name!—as if the exception could be beneficial, unless the rule were mischievous!*

Useless or unjust in every case—either the one or the other—such is the only alternative useless, when there exists adequate reason for imputing unfairness or spuriousness; repugnant to justice, where no such reason is to be found.

In every such act of nullification, an act of perfidy and treachery is involved. That which men in general are suffered to understand,—that which no man can avoid understanding, viz. that in virtue of a general rule or habit, a contract, on the supposition of its not containing matter particularly objectionable, will eventually, at the hands of the judge, receive the force of law,—that which is kept all along hidden in the breast of the judge, is—that on this or that one of a string of pretences of which there is no end, and of which the party cannot by any possibility have any knowledge, until, to his dismay and destruction, it is brought forth out of that its hiding-place, by a decree framed for the purpose, by and for the profit of the judge, the faith thus plighted by the sovereign will be broken at pleasure.

To make men suffer for not knowing, and to keep them from the possibility of knowing, are operations that have all along gone hand in hand—that have all along been pursued with equal solicitude and success—by the manufacturers of unwritten, alias judge-made law. Of whatsoever goes by the name of unwritten law, it is the essence to be uncognoscible.

In a sort of paper, of which, under the general name of promulgation-paper, mention has been made in another work, instruments of contract would find, each of them, in a margin of letter-press, either in terminis or in the way of reference—either at length, or in abridgment, as circumstances might admit and require—a designation of every portion of the matter of law that would be found to bear upon a contract of the sort of those, to the reception of which the sort of paper in question stood allotted.

Thus much for notification. Unfortunately, as it is with everything else, so it is with a law:—before it can be made known, it must have been brought into existence.†

§ 8.

Of Wills.

Wills, in the largest sense of the word contract—a particular species of contract—require, in several respects, a particular consideration.

That, of the allowance so generally, though not universally, given to dispositions of this description,* the effects are upon the whole beneficial to society, is a position which, however true and important, belongs not properly to the subject of this work.

That, in regard to this species of disposition, the powers of creation and alteration should, at least as to a considerable portion of his property, be not only imparted to the proprietor, but continued to him to the last moment of his life, is at the same time a position not altogether foreign to the subject of this work. Why? Because, according as it is or is not thus continued, difference in respect of the formalities will necessarily have place.

By the law of Scotland, what are there called death-bed wills (of which sort are the English wills) are not allowed.† A will is thereby put upon the footing of an ordinary deed—of what, in the language of English law, would be called a deed—a revocable deed of settlement.

Deprived of the power of making a deathbed will, a man is left exposed to ill-usage—unpunishable ill-usage—at the hands of those in whose favour a registered deed of settlement has been made;—he is at the same time deprived of the benefit of employing this power in the purchase of human service in a variety of shapes, on any of which the preservation of life may depend.

From these, with or without the addition of other considerations, a conclusion is drawn in favour of the allowance given to death-bed wills.

On an occasion on which a man may by infirmity be placed in a state of such absolute dependence on those by whom the access to his person may, at their pleasure, be unavoidably engrossed, the importance, and at the same time difficulty, of preserving freedom to the exercise of this power, is not unobvious. Subservient to this object will be found (it is supposed) the following rule:—Whatsoever formalities are appointed for deeds,—for instruments of contract at large,—let the departure from them be as undiscernible as possible in the case of wills: to the end that when a man is executing a will, it may not be known but that it is some deed or other which, were he to survive, would still be necessary to the ordering of his affairs.

Accordingly—for example, in respect of the number of attesting witnesses required for an instrument executed in regular form—let the number be the same in one case as the other.

On this momentous occasion, amidst a confederacy of interested witnesses, circumstances may throw in a man’s way an opportunity for obtaining one faithful assistant, without more, or by stealth two assistants, one after another, though not at the same time. For this reason, on the part of attesting witnesses, let conjunct presence be recommended, rather than required.‡

To the case of wills, applies, in a more especial manner, the above-mentioned principle, which recommends the giving to the non-observance of formalities the effect of a ground of suspicion only, and not of peremptory nullification.

On this principle is grounded the distinction between what may be termed a regular will, and what may be termed a will of necessity.

A regular will will be that, in the framing and execution of which, all the desirable, and thence authentically recommended formalities, have been observed. A will in which any of those formalities has failed of being observed, will, if deemed fair and genuine, be deemed such in the character of a will of necessity; non-observance, in so far as it has place, being considered as having had for its cause, either want of power to comply with the formalities, or want of knowledge of the existence of the provision of law, by which the observance stands recommended.

Should the day ever arrive, in which the peace, security, and comfort of individuals and families, will have been taken for the objects to which, in this part of the field of law, the labours of the legislator have been directed—should he ever desire that law may be employed in any better character than that of a snare, in which the prey may be caught by and for the benefit of the fowler, then, for the first time, it will have occurred to that trustee of the people, that to call in wisdom to the aid of power, is neither beneath his dignity, nor foreign to his duty.

In addition to the display of the imperative dispositions of the law, the margin or back of the promulgation-paper designed for wills will in that case contain a set of mementos and instructions from the legislator to testators.

For conveying a general conception of the nature of the contents, the following examples may serve:—

1. A view of the different exigences, by which a demand for the exercise of this power will be apt to be created. These exigences will have their rise, partly in the nature and situation of a man’s property; partly in the situation and condition of life of those who, on the occasion in question, may in general custom, or particular circumstances, find a more or less natural and reasonable ground, for the expectation of being admitted to share in it. This for the guidance of a first will.

2. A view of the alterations, the propriety of which may come to be indicated by the changes liable to take place in the condition of individuals and families. In the testator’s own instance,—marriage, for example, or widowhood: in the instance of the natural objects of his care, birth, marriage, or death: in regard to the general mass of his property, considerable increase or diminution in the qualities or the subject-matters of it—change, for example, from moveable to immoveable, or vice versa.

3. In respect of formalities, indicative of those which, in the character of safeguards against unfairness and spuriousness, have been thought fit to be recommended: warning that, from the omission, or material misapplication of them in any instance, suspicion will be apt to arise.

4. For the more effectual security in respect of apt and adequate expression, recommendation to call in some fit person in the character of a notary: if pecuniary circumstances admit, a professional assistant: if not, under the denomination of an honorary notary, a neighbouring magistrate, clergyman, or schoolmaster.

5. Indication, of the natural security for, and pledge of fairness as well as genuineness afforded by autography.* Recommendation to employ it, unless prevented by want of skill, power, or opportunity. Instructions how to perform it in such manner as to maximize the difficulty of successful falsification, and afford reason for concluding that it has not been attempted.

6. To the designation of the time recommendation to add that of the place at which the instrument is attested, or the places, if more than one, at which so many successive acts of writing have been performed: the place, viz. the very house, according to a mode of designation exhibited for the purpose. By the designation of the place, a security is afforded not only against unfairness and spuriousness, but, in the case of a fair and genuine will, a clew for the eventual tracing out of attesting witnesses.

7. Suggestions respecting the choice of attesting witnesses. Instructions respecting the mode to be employed for the designation of each person, with a view to the facility of his eventual forthcomingness while living, and when dead, the facility of establishing the fact of his death.

8. Instructions for questions to be put, and other suggestions to be made, by the notary, professional or honorary, with a view to prudential and provident disposition, as well as fairness and genuineness.

9. Obligation on the notary, professional or honorary, to annex his name, in such his character, adding to it an adequate designation of his condition in life, and abode. By this, salutary responsibility would be fixed; which at present, unless by accident, has no place. N. B. The use of this formality is not confined to wills: it has place alike, it will be seen, in the case of deeds.

For any provision respecting orally-delivered wills,—as the art of writing spreads, there will be less and less use: but that they will ever be altogether out of use, is more than the legislator could at present, if ever, with propriety, take upon himself to conclude.†

[* ]Examples—Meat and drink, &c., and in general such other things as are most indispensably necessary to the continuance of man’s existence.

[* ]Example—All rights that are acquired by birth.

[† ]Example—Corporate rights.

[‡ ]Introduction to Morals and Legislation.

[* ]Under the denomination of a contract, to some eyes a will (a last will) may perhaps not appear comprisable; to others, not even a conveyance. But unless this word contract be accepted for the designation of a legally operating disposition, no less exceptionable single worded appellative, one may venture to say, being to be found, we shall be reduced to the employing on every occasion the complex and unwieldy, as well as novel appellative just mentioned.

On this subject, the indistinctness of existing language—the natural and almost necessary result of confusedness of conception—opposes to the communication of all instructive truth, a perpetually recurring and most distressing obstacle.

In the language of the English school as delivered by Blackstone—of the English school, derived, in this quarter of the field, in part but not altogether from that of the Roman—under the term contract, are included, in all cases, agreements, and in some, but not in all cases, conveyances. Applied to a house, for example—sale is a conveyance, not a contract. Applied to a horse, it is a contract, not a conveyance.

But considering that for the designation of all legally operative dispositions relative to property (right to human service in all shapes, being included under the denomination of property,) some single-worded appellative is, in respect of clear conception and clear description, indispensably necessary; and considering that under the term contract, conveyance is in some cases as above comprehended, and that under the term conveyance wills are also included; it has been thought fit here to venture upon the application of it in such sense as to include along with agreements, instruments of conveyance of all sorts, and among them wills.

[* ]Of the matters of fact to the recordation of which, for judicial purposes, as above described, the care of the legislator may with more or less use and advantage be directed, the following may serve as a pretty ample specimen:—

I. Facts of a nature to be regularly recurring: facts belonging each of them to a species, individuals of which are sure to be continually taking place:

• 1. Genealogical facts: 1. Deaths; 2. Births; 3. Marriages.
• 2. Arrivals at majority.
• 3. Declarations of insanity.
• 4. Declarations of dissolution of marriage, by any other cause than death.
• 5. Entrance into apprenticeship.
• 6. Dissolution of apprenticeship, by any other cause than death or expiration.
• 7. Entrance into partnership.
• 8. Dissolution of partnership, by whatever cause.
• 9. Entrance into official situation.
• 10. Exit from official situation, from whatever cause.

II. Facts having relation to Contracts.

• 1. Entrance into contracts: the fact of the entrance into, making of, or joining in the contract in each case.
• 2. Dissolution or modifications applied to contracts so entered into or made.

N. B.—The fact of the entrance into a contract of this or that sort, is, like these other facts, among the subject-matters of original recordation or registration. The contract itself, as expressed by a written instrument, is the subject of transcriptious registration.a

III. Facts of casual or incidental recurrence. These will generally be of a disastrous nature: and the main use capable of being derived from the registration of them, is by learning what can be learned of their causes, thereby either to reduce the number of casualties themselves, or the amount of mischief of which they are productive. Examples:

• 1. Deaths, in the production of which there appears ground for suspecting that culpable agency may have had a share.
• 2. Wrong; of which, whether to persons or things, the consequences are by permanence, or extent, or otherwise, rendered of a serious nature;—such as cases of mutilation, destruction, or forcible deterioration of houses and other works, public or private.
• 3. Calamities; such as inundation, conflagration, contagious disease, famine, or dearth.

[* ]This absurdity has been put an end to by the registration acts 6 & 7 W. IV. c. 85 and 86.

[* ]Applied whether to instruments of contract, or to instruments and operations of judicial procedure (for, in both these wide extending departments of the field of law, this engine of iniquity is played off with the most pernicious wantonness,) the principle and practice of nullification may be seen involving in its texture two abominations, viz. ex post facto law and vicarious punishment, each of them in the utmost possible degree hostile to the ends of justice. For non-observance of an article of imaginary law, which not having been so much as imagined by the pseudo legislator (I mean the judge who in this way takes upon him the exercise of legislative power,) could still less have been present to the mind of the subject who is thus dealt with. In the first place, suffering, having the effect of punishment, is produced where no possibility of avoiding it had been allowed;—in the next place, the person on whom it is inflicted is not the law adviser, whose fault, had there been any, the non-observance would have been,—but the client so advised.

Had the principle of nullification been anything better than a disguised instrument of corruption and depredation in the hands that worked with it, two conditions would uniformly have been attached to the application of it: 1. Observance in the power of the individual on whom the burthen of the formality is imposed; 2. Obligation of observance, and penal consequence of non-observance, adequately notified:—Existence of adequate power; existence of necessary knowledge.

[† ]To exemplify the use of this promulgation-paper, take, for example, that species of contract which has place in the case of marriage. In the character of an instrument provided for the giving expression to this most important of all contracts, what is it that the law has furnished? A mass of vague generalities, from which everything capable of affording to the parties any useful information, applicable to the direction of their conduct in the state into which they are about to enter, are carefully, and as if it were religiously excluded: religiously, as if nothing could be made sacred to religion without being rendered useless to justice.

On the promulgation-paper, with the addition of a few forms of interrogation, by the answers to which the legal aptitude or inaptitude of the parties for the state in question might be established, we might find a useful addition at least, if not a substitute, for the present marriage-rite, in an account of the duties arising from this state, if the Median and Persian laws of a church, which, though not infallible, is incapable of being either instructed or deceived, allowed a substitute.

In this case we have an example, in which, for the securing of veracity to the evidence so extracted, nullification might be employed without imputation or danger of injustice. By the prospect of nullification, supposing detection in any degree probable, mendacity on one side at least would be deprived of its object and its use. Those inconveniences would be seen impending, in the avoidance of which, the contract finds its only use and end.

[* ]Viz. dispositions so ordered as not to take effect till after the death of the disposer, and in the meantime revocable at pleasure.

[† ]The law of Scotland only gives the heir-at-law a right to set aside a deed affecting the real property to his prejudice, if executed on his deathbed.—Ed.

[‡ ]Under English law, to a deed at large, no attesting witness is requisite; two is the number customarily employed.

In a will, for dispositions made of what is called personal estate, no witness at all has been rendered necessary: for dispositions made of what is called real estate, three witnesses have been made necessary.a

N. B. Between personal and real, the distinction is verbal only; since, in either way, an interest of the same value in the same subject-matter may be created and conferred.

[* ]In the language of French law, testament olographe is a will written the whole of it by the testator’s own hand.

[† ]In what is called the statute of frauds—(a denomination not altogether inappropriate)—a desire is expressed that wills delivered, or supposed to have been delivered, in this evanescent form, should be committed to writing; and to give effect to what is desired, here as elsewhere, nullification, the favourite engine, is employed. In regard to fairness and genuineness—more particularly genuineness,—what in this case is the security afforded, what the provision made? Not any: no:—whatever title the instrument may have to these qualities, is left to the joint charge of fraud and fortune.a

Should it ever be thought proper to take the business out of such hands, this seems to be among the occasions on which, by the ministry of the honorary sort of notary as above described, acting under directions and instructions from the legislator, and under the check of a certain degree of publicity in the character of evidence-educting judge, no inconsiderable service might thus, it is supposed, be rendered to truth, probity, and justice.

[* ]Of the matters of fact to the recordation of which, for judicial purposes, as above described, the care of the legislator may with more or less use and advantage be directed, the following may serve as a pretty ample specimen:—

I. Facts of a nature to be regularly recurring: facts belonging each of them to a species, individuals of which are sure to be continually taking place:

• 1. Genealogical facts: 1. Deaths; 2. Births; 3. Marriages.
• 2. Arrivals at majority.
• 3. Declarations of insanity.
• 4. Declarations of dissolution of marriage, by any other cause than death.
• 5. Entrance into apprenticeship.
• 6. Dissolution of apprenticeship, by any other cause than death or expiration.
• 7. Entrance into partnership.
• 8. Dissolution of partnership, by whatever cause.
• 9. Entrance into official situation.
• 10. Exit from official situation, from whatever cause.

II. Facts having relation to Contracts.

• 1. Entrance into contracts: the fact of the entrance into, making of, or joining in the contract in each case.
• 2. Dissolution or modifications applied to contracts so entered into or made.

N. B.—The fact of the entrance into a contract of this or that sort, is, like these other facts, among the subject-matters of original recordation or registration. The contract itself, as expressed by a written instrument, is the subject of transcriptious registration.a

III. Facts of casual or incidental recurrence. These will generally be of a disastrous nature: and the main use capable of being derived from the registration of them, is by learning what can be learned of their causes, thereby either to reduce the number of casualties themselves, or the amount of mischief of which they are productive. Examples:

• 1. Deaths, in the production of which there appears ground for suspecting that culpable agency may have had a share.
• 2. Wrong; of which, whether to persons or things, the consequences are by permanence, or extent, or otherwise, rendered of a serious nature;—such as cases of mutilation, destruction, or forcible deterioration of houses and other works, public or private.
• 3. Calamities; such as inundation, conflagration, contagious disease, famine, or dearth.

[‡ ]Under English law, to a deed at large, no attesting witness is requisite; two is the number customarily employed.

In a will, for dispositions made of what is called personal estate, no witness at all has been rendered necessary: for dispositions made of what is called real estate, three witnesses have been made necessary.a

N. B. Between personal and real, the distinction is verbal only; since, in either way, an interest of the same value in the same subject-matter may be created and conferred.

[† ]In what is called the statute of frauds—(a denomination not altogether inappropriate)—a desire is expressed that wills delivered, or supposed to have been delivered, in this evanescent form, should be committed to writing; and to give effect to what is desired, here as elsewhere, nullification, the favourite engine, is employed. In regard to fairness and genuineness—more particularly genuineness,—what in this case is the security afforded, what the provision made? Not any: no:—whatever title the instrument may have to these qualities, is left to the joint charge of fraud and fortune.a

Should it ever be thought proper to take the business out of such hands, this seems to be among the occasions on which, by the ministry of the honorary sort of notary as above described, acting under directions and instructions from the legislator, and under the check of a certain degree of publicity in the character of evidence-educting judge, no inconsiderable service might thus, it is supposed, be rendered to truth, probity, and justice.

[a]In England, out of twenty marriages registered, not so much as one perhaps that affords a marriage-settlement to register: nor is that subjected to registration but in two or three counties. Where there is no marriage-settlement, the terms of the contract are settled by the law: say rather, should be; for where are they to be found? what and where are the terms of which they are composed?

[a]Two witnesses are now made necessary in both cases, by the statute of wills, 1 Vic. ch. 26, § 9.

[a]A paper writing, purporting to exhibit, in tenor or in substance, certain supposed orally-delivered death-bed dispositions, supposed to have been made by a person whose death took place (say) within the time limited by the law:–this instrument, with or without a signature recognising it as having been penned by the individual whose signature it is, is produced by somebody–by anybody. At what time, in what place, at whose instance, was it thus penned?–in the presence of any and what other person or persons were the particulars delivered by the supposed testator? Is this the only instrument which in this same character has been drawn up? By different persons may not different ones have been drawn up?–by different persons, or even at different times by the same person, according as, in the character of a bidder, one supposed legatee or another has been looked to as likely to afford the most advantageous terms? So many inlets to fraud, and not so much as the slightest fence attempted to be set up by the wisdom of the law!