Front Page Titles (by Subject) CHAPTER XV.: DIFFERENCE BETWEEN PREAPPOINTED AND UNPREAPPOINTED EVIDENCE. - The Works of Jeremy Bentham, vol. 6
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CHAPTER XV.: DIFFERENCE BETWEEN PREAPPOINTED AND UNPREAPPOINTED 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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DIFFERENCE BETWEEN PREAPPOINTED AND UNPREAPPOINTED EVIDENCE.
The Difference developed.
In the case of preappointed evidence,—as also with a view to preappointed evidence in the case of evidence not preappointed but judicially delivered,—language has obtained, which having been produced by indistinct or erroneous conception, has in its turn, as will always be the case, served as an instrument for the preservation of the confusion or error in which it took its rise.
In the endeavour to substitute, on this part of the field of law, distinct expression and conception to indistinct—correct to incorrect, a few lines, or even a few pages, may not, it is hoped, be altogether misemployed.
Since writing has come into general use, all evidence to which the epithet preappointed is applicable is scriptitious:* —but it is not all scriptitious evidence that comes under the denomination of preappointed.
The use of preappointed scriptitious evidence is, to be in readiness to be eventually applied to a judicial purpose: and thereby (in case of a suit or cause with relation to which the matter of it may be capable of being employed in the character of evidence) to be employed accordingly on the occasion of such suit or cause:—this is its judicial use; or, what is much better, by presenting beforehand, to the view of all parties concerned, what, in the event of the institution of any such suit or cause, will be the result of it,—to prevent the commencement of a series of operations both vexatious and undesirable.
In every case in which, on the occasion of a suit at law, in the character of judicially delivered evidence, destined to serve, or help to serve, as a ground for the judgment or decision expected to be pronounced, any article of preappointed evidence is employed: the moment at which this instrument is brought for the first time into existence, is of course, and of necessity, anterior to the moment at which it is thus delivered and exhibited.
Of evidence constructed in this shape, the use, or at least one great use, depends upon this anteriority in point of time; that is, to speak more precisely, the utility of it, is, cæteris paribus, inversely as the distance between the point of time at which the perception in question took place, and the point of time at which it happens to it to be thus recorded: cæteris paribus, the possibility of incorrectness and incompleteness on the part of the picture presented of any perception or set of perceptions by the memory, being directly as the length of time between the instant of perception, and the instant of the formation of such picture.
On whatsoever occasion, therefore, an article of preappointed evidence is exhibited in the character of an article of judicially-delivered and received evidence, so it is that, as to what concerns those perceptions which it is employed to commemorate, the distance between the instant of perception and the instant of scription will be less than the distance between the instant of perception and the instant of exhibition, as above.
This being the case, generally speaking, the time or date of preappointed evidence will be anterior to the time or date of judicially-delivered evidence; that is, in the instance of every article of preappointed evidence exhibited in the character of judicially-delivered evidence, its formation will be earlier than its exhibition in that same character.
But if the date of the instant of judicial delivery of an article of evidence, in one suit or cause, be compared with the date of the instant of scription in the case of an article of preappointed evidence in another cause—and in both instances the instant of perception be taken for the point up to which you measure,—what may very well happen is—that, in the case of the judicially-delivered evidence, the interval shall be shorter than in the case of the pre-appointed evidence;—in the case of the preappointed evidence, the interval shall be longer than in the case of the judicially-delivered evidence.
In regard to scripts, there are some cases in which the length of time between the moment of perception and the moment of scription, may be considered as equal to 0: there are others in which it is capable of running out to an indefinite magnitude.
Cases in which it is equal to 0, in which the moment of perception and the moment of scription, or commemorative recordation, coincide, are the following:—
1. Among instruments of contract, all diversilateral ones. For, considering that the transaction is not regarded as perfected till the moment of the act of recognition, in the inexpressive language of English law, delivery, this is the moment at which not merely the expression thus given to the concurrent and united will of the several parties, but even the ultimate formation of the perception or psychological act so denominated, may be considered as having place.
2. Among instruments of contract, the particular species of instrument called a last will or testament.
In so far as the hand by which it was written happens to have been a hand other than that of the disposing party, the testator—the time of recognition presents a point of time no less determinate than in the last-mentioned case. In so far as it is the hand of the testator himself, supposing it known at what precise point of time the part in question was written, the time of recognition would in this case be as determinate as in the other case. But when, the instrument being as above autographous throughout, bearing no date, or being written different parts of it at different times, bearing dates in numbers smaller than the number of those times,—thus far, to the length of the interval in question there are no determinate limits.
In this respect, the sort of evidence for the designation of which the term ex parte preappointed evidence has above been employed, stands next to preappointed in respect of exactness and constancy of coincidence. Between these two, the line of separation is not indeed in every part a very clear one: in particular, in the case of that branch of ex parte preappointed evidence which consists of mercantile correspondence. To a bill of exchange or a promissory-note of hand, though both but unilateral, the appellation of an article of preappointed evidence can no more be refused than to a common bond for the payment of money, which itself is but unilateral: and between an order for the payment of money, such as is a bill of exchange or a draft upon a banker, and an order for the delivery of goods addressed and sent in the form of a letter by one mercantile man to another, the difference is not always a very explicit one. The person to whom it is addressed,—does he or does he not stand bound to compliance? On this point it is that the question seems to turn: and this is a matter concerning which it will not, in every case, be found easy to speak with any well-grounded assurance.
In the case of preappointed evidence, and that of an obligatory nature, whether mutually appointed or but ex parte, it is to the obligatory matter that the observation respecting the exact coincidence between the moment of perception or conception, and the moment of expression (in the case of expression in the scriptitious mode, the moment of scription,) is to be confined. In various sorts of instruments of contract—in various sorts of deeds, are commonly contained matters of recital—recitals, as the term is, viz. statements made of facts of various kinds, the recollection and consideration of which contributed, in the character of matter of inducement, towards giving birth to the will or act of power which, by the expression given to it in and by the discourse composing the matter of the instrument, is put in exercise. Every one of those facts must, to some person or persons,—parties to the instrument, strangers to the instrument, or of both descriptions—at one time or other have been the subject of perception—of perception entertained at a determinate moment: but, between that anterior moment and the moment of expression, the moment of scription, or more correctly, the moment of recognition, the moment in which the act of recognition was performed, the distance may have been of any length not greater than that of the field of history.
As to scripts at large, generally speaking, they will not afford any such exact coincidence: whether they do or not, will, at any rate, be matter of accident.
In the article of trustworthiness, or probative force, with relation to the matters of fact which they are respectively employed to commemorate, we see at present the superiority possessed by pre-appointed scriptitious evidence when judicially delivered in the character of judicial evidence, over judicially-delivered scriptitious evidence of every other description, for the fixation and conservation of which no such salutary instrument has been employed.
In the case of a diversilateral contract, and instrument of contract, there is, in the first place, the mutuality of declaration, the concurrence of persons acting under the influence of opposite interests in the expression given to, and the averment made of the same matter of fact, present in the most intimate manner to the perceptive faculties of each. In the next place, the coincidence (in point of time) between the moment of perception and the moment of enunciation, the discourse enunciated being at the same time committed to writing—this moment is that at which that operation is performed, by which the perception is placed, perhaps for ever, out of the reach of oblivion and misrepresentation. In the case of the unilateral contract and instrument, the source of superiority is confined to this last-mentioned circumstance.
Inconsistency and Confusion: Anglicé for want of a right conception of it.
In the language in use among English lawyers, no such distinction is made as that between preappointed and other scriptitious evidence;—a mass of information brought into existence without a suit, without a view to any determinate suit—a mass of information brought into existence by a suit, and for the mere purpose of that suit;—both are spoken of without distinction, both are confounded under the common appellation of written evidence.
An instrument of contract, a deed, is written evidence: a mass of writing, in and by which expression is given to statements made by a man on a judicial occasion, in the character of a deposing witness, is written evidence.
Not that, in this last case, it is, in every one of the shapes in which it is capable of being presented, and is wont to be presented, denominated written evidence.
1. Delivered ex interrogatu, uno flatu;—in the epistolary form, at a distance from the interrogator, in the form of an uninterrupted string of statements, made in reply to an uninterrupted string of interrogations scriptitiously expressed and sent off in a mass;—delivered, in a word, in the form of the instrument called an answer to a bill in equity, it is written evidence.
2. Delivered in like manner uno flatu, but absque interrogatu;—delivered, in a word, in the affidavit shape, it is still written evidence.
3. Delivered in the shape of a succession of answers orally delivered in reply to a succession of interrogations administered in like manner by a present interrogator in the character of an evidence-collecting judge, these interrogations having been, at some indefinitely much anterior point of time, by the hand of a professional penman, scriptitiously expressed and formed into one unbroken mass, and by the hand, or under the eye of the evidence-collecting judge, the several responses committed to writing, and ranged each of them under the head of the interrogatory by which it was called forth;—delivered, in a word, in the shape of a mass of depositions exhibited on the occasion of, and in the course of a suit in equity, it is again, it is still, written evidence.
4. Delivered in the shape of a succession of answers orally delivered, in reply to a succession of interrogations administered in like manner, by this or that present interrogator in any one of a variety of characters, to which this power is imparted,—party, or advocate on one side:—party or advocate on the other side;—permanent judge, styled judge;—this or that one of a body of ephemeral judges styled jurymen;—the interrogatories extemporaneously uttered;—the responses uttered in like manner;—collected, and in a much more perfect state of correctness and completeness than in the last-mentioned case;—committed to writing by some note-taker or note-takers, employing or not employing the means of promptness of fixation, and thence of correctness and completeness afforded by the art of short-hand; it is not in this case, if the name of it be taken from these lawyers, written evidence; it is, in contradistinction to written, styled by them parole evidence, which is as much as to say, orally delivered evidence.
In cases to a vast extent, if in the form of what is called written evidence, expression has been given to an instrument of contract,—what is called parole evidence is not admitted in alteration, or so much as in explanation of it.
In cases to another great extent, a contract by howsoever great a number of witnesses proveable, is not so much as allowed to be valid, except in so far as, for the expression of it, a written instrument is employed constituting an article of evidence of that sort which is ranked under the head of written evidence.
At the same time, in this same scientific language, not only an answer to a bill in equity, but a mass of equity depositions, and even a mass of evidence in the affidavit shape, are so many articles of written evidence. According to the arrangement indicated by this nomenclature,—at least where the existence and particulars of a contract are the matter of fact in question,—the probative force of parole evidence, i. e. for example, testimony extemporaneously extracted, in an open judicatory, by the contending parties on both sides, or their advocates, by means of interrogation and counter-interrogation, should be inferior, not only to an answer in equity, and a mass of equity depositions, but even to a mass of evidence in the affidavit shape, and that to such a degree, as that, where it is supposed that evidence in either or any one of those three shapes is to be had, it is not on any terms fit to be admitted.
In comparison of, or in company with, what in these three forms is called written evidence, what is called parole evidence is so untrustworthy, that in lieu of, or in company with, these species of evidence respectively, it ought not (where these several evidences have for their subject-matter respectively, the sort of subject-matter here in question, viz. the existence or contents of a contract) to be so much as admitted: while, on almost every other occasion, by the universal acknowledgment of all lawyers, unless the ecclesiastical school afford an exception, those three species of what is called written evidence are, in point of probative force, decidedly inferior to the species of evidence called parole evidence.
By Gilbert, some time Lord Chief-baron, in his work on evidence, all evidence being divided into written and unwritten, an order of precedency in the line of trustworthiness is established; and to all that is written, above all that is unwritten, the upper hand is assigned. According to this order of things, such is its clearness and consistency, to the testimony of a given person, received in any of the three comparatively untrustworthy modes and shapes above mentioned, viz. answer, deposition, and even affidavit, the precedence, and along with it the preference, is given, over the testimony of the same person, extracted in the most trustworthy of all modes and shapes, interrogation checked by counter-interrogation, both administered vivâ voce, and employed in the extraction of impromptuary answers. These responses—does it happen to them to be committed to writing, and set down word for word as they came forth? No matter: written they may be in an unlearned sense—written they are not in a learned and legal sense: they belong not to the class of evidence to the designation of which the appellation of written has been consecrated and confined by learned and reverend hands.
Dissatisfied with answers—sensible of the comparative unfitness of evidence in this shape, to the purpose of depicturing the transaction in question by any representation to which, with any tolerably well-grounded confidence, the associated attributes of correctness and completeness can be applied—the learned manufacturer of equity, sitting in the character of Lord High Chancellor, directs an issue.
Dissatisfied with depositions—and with at least equal reason—sitting as the same High Chancellor, he again directs an issue. Dissatisfied with affidavit evidence—and with so much greater reason—sitting in his character of judge in matters of bankruptcy, and in that character receiving petitions and deciding upon them on no other ground than that of evidence delivered in this most untrustworthy, this most palpaply unfit shape, on every disputed occasion, he once more directs an issue; i. e. directs that the question of fact shall, under the direction of a judge, be decided upon by a jury, in the course of a fresh suit, a suit at common-law, which, conscious of his inability of coming at that truth on which the justice of all his acts and doings so indispensably depends, he forces those whose misfortune it is to be forced to come to him for what he calls relief, to commence and drag one another through the delays and justice-killing forms of.
Feeling every day the inferiority and unfitness of that which, from the grand masters of this branch of science, he has learnt to call the superior evidence;—dissatisfied on this and that particular, as if there existed an occasion on which he ought to be satisfied with this essentially unsatisfactory evidence, at an expense to the parties, at the thoughts of which he himself is continually acknowledging himself to be terrified, he calls for that which, in spite of learned theory, he has found by constant experience to be in practice and reality the superior evidence.
In the case of contracts in general, whether diversilateral or unilateral, the promptitude or freshness of the act of commemoration—of the act by which the existence and particulars of the contract are placed out of the reach of oblivion and misrepresentation; and in the case of diversilateral contracts, the mutuality of the recognition—the ground afforded for the persuasion that the correctness and completeness of the picture given of the transaction by each, has been acknowledged by the others—these are the circumstances by which the preference given by these lawyers to what they have called written evidence (viz. in the case when so it is that they have bestowed upon it this preference) can alone, in so far as it has been given by them, be justified: these are the grounds on which, in so far as reason has had any share in the production of it, it appears really to have been built by them.
Of what has here been distinguished by the name of preappointed evidence, these are the characteristic properties; but of the various species of which is composed the heterogeneous mass of evidence which by them has been lumped together and confounded under the common appellation of written evidence, these are not the common properties: expressed at some undistinguished point of time or other, by the characters of which a mass of writing is composed,—this is the only property appertaining in common to their written evidence: and this is a property by which no species of evidence whatever is capable of being distinguished, since there exists not any individual article of evidence whatsoever, in which it may not happen to it to be found.
[* ]Of the species of official person, styled a remembrancer, the denomination seems to have reference to a state of things, in which a demand for remembrance was presented by legally operative matter, in a quantity greater than that which the obtainable quantity of scriptitious talent was adequate to the recordation of.