Front Page Titles (by Subject) CHAPTER XVI.: PREAPPOINTED OFFICIAL EVIDENCE. - The Works of Jeremy Bentham, vol. 6
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CHAPTER XVI.: PREAPPOINTED OFFICIAL 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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PREAPPOINTED OFFICIAL EVIDENCE.
Transactions of offices at large, considered as subjects of Preappointed Evidence.
Every office, in which written documents of any kind are kept, is a repository, and with few or no exceptions, more or less a source of preappointed evidence. In that character, service in some shape or other was in such situations rendered to the ends of government, while the art of applying permanent signs to the giving expression to ideas was most rare; and since the art of multiplying those signs in so indefinite a degree by the operations of the press has come into use, the field of preappointed evidence has thus received a degree of expansibility to which there are no bounds.
In this way, whatsoever is produced, is always so much better than nothing. But in the doing of it,—for the doing of it as correctly, completely, and usefully as possible, four points require to be attended to:—
1. What the uses are to which such evidence as may be found derivable from these sources may be capable of being rendered subservient; 2. On what principles a just estimate may be formed of its trustworthiness and probative force; 3. By what means its trustworthiness may be most effectually perfected and secured; 4. By what means, in so far as it is useful, and its uses not outweighed by preponderant inconvenience, the quantity of it may be most extensively increased.
1. Uses of official evidence. Direct and collateral;—under one or other of these two heads, may be placed, it is supposed whatever uses such evidence can be made subservient to.
To the head of its direct uses, may be referred all such as either the chief manager or managers in the office itself that is in question, or any persons that have dealings with it, whether in the character of private individuals, or in the character of public functionaries belonging to any other offices, standing whether in a superordinate, co-ordinate, or subordinate capacity, in relation to it, may in the course of those dealings be enabled to derive from it.
To the head of collateral uses, may be referred, in the first place, the judicial uses, viz. any which, on the occasion of a cause or suit, it may be found applicable to in the hands of a judge, acting as such. In the next place, the statistic uses,—such uses as it may be found applicable to in the hands of the legislator, acting as such; and which, under this same name, have been already mentioned.
To the head of its judicial uses, besides such as are casual and miscellaneous, may be referred, that of affording eventual documents for the eventual indication, demonstration, and thence, in a more or less considerable degree, the actual prevention of any such transgressions, of which the office itself is, by the nature of the business carried on in it, rendered liable to become the source, or at least the scene.
2. Trustworthiness of official evidence, how to estimate. For the purpose of forming, on any occasion, an estimate of the trustworthiness of official evidence, the following considerations may perhaps be found not altogether without use:—
Pre-eminent responsibility—viz. in what may be termed the beneficial* sense of the word responsibility—pre-eminent responsibility and presumable impartiality, i. e. exemption from the action of sinister interest:—these, with or without the addition of presumable superordinary moral and intellectual culture, may be mentioned as being, in a situation of the sort in question, the principal efficient causes of pre-eminent testimonial trustworthiness.
Such being, in the sort of situation in question, the causes from the operation of which testimonial trustworthiness may naturally be expected to receive increase, neither should those circumstances, if any such there be, which present themselves as operating in ralation to that quality, in the character of drawbacks, be overlooked.
Whilst, in the beneficial sense of the word, responsibility, as above, in the sort of elevated situation in question, is naturally raised more or less above the ordinary pitch, in the burthensome sense by which alone it operates as a security for such trustworthiness, it is apt to be depressed below the ordinary pitch. Though in the situation in question a man has more to lose, he is less in danger of being made to lose: magnitude of eventual suffering is increased, probability is diminished.
By the extensiveness, by the intricacy, by the scientific nature of the business—by all or any of these causes, if there be delinquency to any extent, detection, to any such effect as that of producing general notoriety and consequent disrepute and exposure, may to any degree be rendered difficult and improbable, while in that same situation, if it be in a certain mode and degree elevated, exposure may take place, and still neither punishment, nor so much as disrepute, follow.
Junction of the official person in question with a set of colleagues, in the form of a bench, a board, an assembly, a body corporate. In this case, the above three drawbacks operating in the same or different degrees of force, may all of them be found combined. By the consolidated power and influence of the whole body, each member is secured from punishment;—by multiplicity and privacy, each is even screened from shame—shame not seeing which to fix upon.
By the irresponsibility of the superior officers on the bench, or at the board, joined to the abstruseness of the matter and the non-publicity of the facts, in like manner in the situation of individual and subordinate officers under the bench or the board, falsity being screened from detection, thence from punishment and from disrepute, the untrustworthiness incident to the superordinate situation may thus extend itself to the subordinate functionary, who, being supposed to be sufficiently well looked after by his superiors, is the less looked after by the public eye.
Of the pitch to which, by the operation of the above-mentioned causes, testimonial untrustworthiness, in the case of an official body, is capable of being screwed up, the evidentiary instruments of which, under the technical system of procedure, the great judicatures are the sources, afford an example no less melancholy than instructive.
In no instance, perhaps, in the compass of the same quantity of testimonial discourse, is mendacity found in so large a proportion as in that sort of composition, which, under the name of a record, on the occasion of every suit at common law, is, or at least ought to be made up, and that under the direction of English judges. Undistinguishable from the flood of mendacity and nonsense in which it is drowned, what little of truth there is in it, serves rather to increase than diminish the deceptious quality of the whole mass. Whilst sinister interest has made up the false tale, and irresistible power has pronounced it superior to contradiction,* effrontery has not scrupled to ascribe to it a degree of infallibility* vying with that which, under the gloom of more mysterious terms, has been claimed by falsehood and nonsense on other ground, and in other shapes.
In few, assuredly, if in any instances, can mendacity have been employed to more pernicious purposes,—if so it be, that to depredation, to denial of justice, to oppression, to confederacy with dishonesty on both sides of the cause—confederacy not the less efficient for being so successfully disguised—all practised by dint of irresistible judicial power—the epithet pernicious may without impropriety be applied.
By the indignation of that public at whose expense it has been practised, immorality in so galling a shape should naturally, it may have been expected, have been long ago driven off the stage. But, the only situation from which any peep behind the curtain is obtainable, having naturally and constantly been filled up by interested supporters, and the unlearned spectators having been to such a degree deluded as to have been made to look upon the vice as being subservient or even necessary to justice,—hence it is, that instead of reproach, the immorality has ever hitherto been, and need little fear the not continuing to be, covered with applause.
If in no other sort of official situation the same causes of irresponsibility, as opposed to responsibility in the burthensome sense, and thence of testimonial untrustworthiness, are to be seen combined and operating with such mighty force; yet in many another official situation, howsoever in degree the effect may be inferior, in specie it can scarcely fail to be the same.
Sinister interest absent—thence impartiality perfect,—intellectual qualification competent—the information drawn immediately from the source, i. e. from the very seat of perception, and by the united power of the several securities for correctness and completeness extracted in the best shape,—these are so many requisites, the concurrence of which is necessary to the composition of a certain degree of testimonial trustworthiness out of office, it will scarcely be less necessary in office.
In the case of official evidence, so far as concerns that occasional use (which has above been distinguished by the name of the judicial,) not merely an ordinary, but rather a superordinary degree of testimonial trustworthiness, is, it must be acknowledged, the natural state of things. But, though most frequently, it cannot with any reason be expected to have place in every instance: and the error would be a mischievous one, if because, in ninety-nine instances, the application of those securities be not necessary to justice, in the hundredth, in which it is necessary, it were to stand prohibited.
The official recordator or deponent, has he anything to gain by misrepresentation? If yes, then so it is, that for the reason above brought to view, his statement is less trustworthy than that of an individual not in office, whose character is unknown.
So far as concerns official transgression in every shape, on the part of any official person belonging to the office,—so far, in the character of evidence, whether for the use of the administration-in-chief, or for the use of the judge, an official instrument or entry seems less likely to be impartial, and in so far less trustworthy, than a statement made by a person at large.
3. Trustworthiness in official evidence—how to secure it.—Included in the faculty of making the most effectual provision, in the best manner, for securing, in an official as in any other situation, the quality of trustworthiness to evidence, is that of forming a just estimate of the degree of trustworthiness actually appertaining to any given lot or article of such evidence.
In the following practical rules, an attempt is made to compass both those objects—the one of them through the other:—
Rule 1. In official as in other evidence, look out for the causes of inferiority or infirmity that apply, as above, to evidence at large;—viz. 1. Whether the matter of fact attested be not the principal matter of fact itself, but another considered as evidentiary of it;—in other words, the evidence not direct but circumstantial; 2. If the information there given be not original, note in this case, as well the nature and position as the number of the media interposed; 3. If original, note if not scrutinized or not interrogated; 4. Observe the trustworthiness of the witness or witnesses in question, viz. whether supposed percipient, directly reporting, or intermediately reporting, also if such trustworthiness be diminished, viz. by sinister interest, or by intellectual inaptitude absolute or relative.
Rule 2. If among the facts spoken to by the document, there be any, by the belief or disbelief of which, the interest of him under whose direction it is written may in any way be affected,—in this case, so far as depends upon impartiality, superiority of trustworthiness has no place,—inferiority rather.
Rule 3. On a judicial occasion, for avoidance of delay, vexation, and expense, official ready-written evidence may, though unsanctioned and uninterrogated,—or even a sufficiently authenticated transcript of it,—be in general received in that state: which is as much as to say, it may be considered as possessing the sort and degree of provisional trustworthiness sufficient for that purpose.
Rule 4. But if, on any of the grounds above mentioned, reason appear for suspecting it of deceptions incorrectness or incompleteness, the corresponding securities employed in other cases for perfecting and securing testimonial trustworthiness, ought not to be withholden in this case.
Rule 5. On the part of any party interested, the declaration of a desire to cause application to be made of those securities to the article of official evidence in question, ought to be considered as sufficient proof of the justness as well as of the existence of such suspicion; nor, except on the distinctly alleged ground of preponderant delay, vexation, and expense, ought it to be in the power of the judge to refuse it.
Rule 6. Although the trustworthiness of the individual in question be at the highest pitch, yet, for the purpose of relative completeness as well as correctness, interrogation may be not the less necessary.
Rule 7. Though in the case of this or that sort of official document, the information furnished by it be in a greater or less proportion constantly false, yet by such falsity, the utility of it in the character of evidence will not be destroyed, if by application of the appropriate instruments of extraction, true information be obtainable by means of it:—just as, from the mouth of a necessarily mendaciously disposed examinee,—for example, in a criminal cause, a guilty defendant,—false information assists often in leading to the discovery of true.
Rule 8. For the use of the administrator-in-chief and the legislator, for securing the correctness and completeness of the statements relative to matters of fact, look out on each occasion for percipient witnesses in competent and convenient number, and by them or one of them let their names in that character be written upon the face of the document: if in the character of supervisors the names of any other persons, not being percipient witnesses, be inscribed, let them in like manner be inscribed by the parties themselves, distinguishing the character in which such their attestation is subjoined.
Rule 9. In the case of a transcript, in a determinate place at the bottom of each page, let the scribe write his name, with the year, month, and day, and the word scripsit, or some word of the like import, at the end of it; and so if to the same page there be more dates or more scribes than one.
By this means, each scribe will be rendered responsible for the correctness of his script, and the quantity of service rendered by each will, upon occasion, be exactly visible.
Rule 10. In cases where, on a particular occasion, order for the writing of a script is given by this or that official person in particular; for fixing the responsibility upon that person, it may be of use that a designation of the person by whose order it was written should moreover be subjoined.
Rule 11. When, in case of error, correction is applied, let it be performed in such manner that the state of the script antecedently to the correction may still appear:—viz. in the case of omission, insert the omitted word in a place over the line, with a mark underneath: in case of redundancy, mark the redundancy by cancelling the word, but so as not to obliterate it: and in like manner, let substitution be performed by the cancelling of the one word, and the insertion of the other, as above.
In this way, without a direct and discoverable forgery, no alteration will be capable of being made to an unknown effect on an unknown occasion, by an unknown hand.
If the securing to evidence in general, in the most effectual manner, and in the highest practicable degree, the desirable properties of correctness and completeness, be a fit object of the legislator’s care,—so in particular will it be in the case of official evidence—in the case of all such evidence of which in any line of public office official situation is either the repository or the source.
For securing correctness and completeness, or in one word, trustworthiness, to evidence in this instance, what then shall be the means employed in this case? The same as are employed in the instance of other evidence.
But official evidence, being the evidence of official men, has, in official men, found the persons by whom the task of adjusting the course to be taken in relation to it has been executed: and with them the main object has naturally been rather to cause it to be regarded as invested in the highest degree with the respectable qualities in question, than to cause it to be really possessed of them.
Accordingly, though in the character of original information, in addition to what has been said, and what remains to be said under this head in relation to evidence at large, anything that could be said in relation to official evidence in particular, might, not without reason, be regarded as repetition and superfluity; yet in the way of memento, at any rate, if such as has just been intimated be the natural propensity to turn aside from it, it may not be altogether without its use.
Between evidence at large, and official evidence, one material distinction requires in this place to be held up to notice. In the case of evidence at large, the public functionary for whose use—and, in this case, for whose use alone—it requires to be collected, is the judge; the use made of it by the judge is not merely the principal use, but the only use to which, except in the collateral way above spoken of, it is applicable.
In the case of official evidence, on the contrary, whatever use may come to be made of it by the judge is but occasional, accidental, collateral. The person, from its reference to whose service it derives its most direct, most important, and only constant use, is the chief ruler of the department or combination of offices in question.
In this case, and in this situation, the mass of evidence habitually furnished by any such office is neither more nor less than the produce of the system of book-keeping pursued in that same office.
This being the case, what are the ends to which a system of that sort, considered in the most general point of view, and with reference to offices in general, ought to be directed?
Upon a second glance, this question will be seen naturally to divide itself into two branches:—
1. What is the general description of the operations themselves, that in the situation in question are habitually carried on?
2. What are the means proper to be employed for furnishing at all times a correct and complete conception of what has been the nature and character of those operations?
1. Answer—to the first of these two questions. In each department, and each office of that department, the system of operations carried on ought to be such as promises to be conducive in the highest degree to the end or purpose for which the department or office was instituted, and from which is derived the warrant for the expense charged on the public by and for its maintenance and support.
2. Answer—to the second of these two questions. In each department, and in each office, the mode of book-keeping pursued should be such as is in the highest degree subservient to the following ends or purposes, viz.—
1. To afford, by permanent documents, for the use of all persons having need to be made acquainted with the business carried on in the office, as clear a conception as possible of the several operations actually performed in that same office.
2. To present to view, in as clear and instructive a manner as possible, the relation which, in the way of subserviency, each such operation bears to the common end or purpose of the office, including, on the one hand, the nature and value of the service rendered by it; on the other hand, the labour and expense by which that service is purchased.
3. As to what concerns the persons whose labour is employed in the performance of the several operations,—to present to view, in like manner, a conception of the manner and proportion in which their respective labours, supposing them applied in the manner and quantity expected and required by the rules and constitution of the office, contribute to the rendering of that aggregate mass of service; also, a conception of the degree of punctuality with which such their respective duties are fulfilled;—or, to speak more precisely, of the quantity by which their respective labours respectively fall short of the quantity so expected and required.
In a word:—1. The merit and demerit of the system; 2. The merit and demerit of the several persons employed in the execution of it. Such, considered in the most general point of view, are the objects, to the display of which the system of book-keeping pursued in each department or office ought to be directed.
Considered upon the general principles of reason, so plainly obvious may these suggestions be apt to appear, that the number of them may be esteemed superfluous. Yes,—if they were as generally conformed to, as when considered in this point of view they appear obvious.
Unfortunately, their obviousness is not more conspicuous than, upon an inquiry into the actual state of things, the neglect of them will be found.
On every such occasion, custom, not reason, is the standard referred to; by conformity or disconformity to which, the propriety of every act and operation is judged of and measured.
Why? Because by every deviation from custom—by every deviation by which the improvement of the business, and the more perfect fulfilment of the public end and purpose of the office is aimed at, the private and personal interest of a proportion, more or less considerable, of the persons belonging to the office, is injured: for even if, by the improvement or supposed improvement, no emolument lawful or unlawful, avowed or unavowed, would be taken from them or any of them, additional labour in some shape or other cannot fail to be imposed.
Transactions of Judicial Offices.
Beside that which offices in general afford, judicial offices afford evidence of a sort peculiar to themselves.
That which, in a judicial office, is viewed ab extra under the name of evidence, is ordinary, not preappointed evidence. Of that which in this place calls for consideration under the name of judicial official evidence, or more shortly judicial evidence, that alone is preappointed, of which the office is not only the repository, but the source.
Instruments and entries: to one or other of these two heads will (it is supposed) be found referable the several constituent parts of the aggregate mass of this species of official evidence:—written instruments delivered in, and minutes or entries made of the several operations performed:—performed by the several actors in the judicial drama.
That which an instrument necessarily records and shows, is its own tenor, the date of it included:—those things which it does not of itself record,—are, the fact of its being delivered in, the date of the delivery, together with such other operations as may happen to be performed in relation to it.
From one and the same article of judicial official evidence may result, to so many different descriptions of persons, so many different uses:—I. To parties and their representatives, in respect of the suit on hand: of this sort are the uses which, in the present instance, fall under the denomination of the direct uses:—II. To persons at large, in respect of any future contingent suits, to the purpose of which, the same facts, or any of them, may require to be established: these may be considered as forming one branch of the collateral uses:—III. To the legislator, in the character of an eventual component part of that fund of information, the use of which is to serve as a basis for any such ulterior regulations, as from time to time may in his view promise to be conducive to the ends of justice:—and here may be seen another of the collateral uses of this species of evidence, viz. statistic uses.
I.—1. To form the ground for ulterior operations on the same or the opposite side;—2. To show whether the instrument or operation itself were proper or no, i. e. has been conformable to such rules as have been laid down for the composition or performance of it; 3. In case of impropriety, to afford a ground for the application of the matter of satisfaction or of punishment, or of both, according to the exigency of the case. Under this head seem cognizable the purposes to which, in the suit in question, the recordation of the instrument or operation promises to be necessary or subservient.
II. With regard to the future contingent suits of future contingent litigants, the best effect plainly is the prevention of their existence; the next best, the prevention as well of misdecision on the occasion of them, as of this or that avoidable portion of delay and vexation or expense to which they might otherwise have given rise.
Under the natural, under the tutelary system of procedure, the radical operation which at or near the outset, except in any such particular circumstances as may have rendered it physically or prudentially impracticable, will fall to be recorded, will of course be the appearance of both or all the parties, face to face, in the presence of the judge: thereupon the decision itself, viz. the final decision, or the circumstances which, creating a demand for delay, prevented for that time such decision from being pronounced.
Under the technical, under the predatory system—under the system which has had for its object and effect a too successfully disguised despotism, and under favour of it that aggregate of overpaid places and sinecures—that excessive and misapplied mass of emolument, of which the particulars, the services and the shapes, have elsewhere been displayed under this system of regulated pillage,* the performance of that essential operation having, in pursuit of those sinister objects, been universally eluded, the ulterior operations to be recorded have been all such as, for the profit extracted from and by reasons of the delay, vexation, and expense, pretences have been found for necessitating—a series to the intricacy and perplexity of which there is no end.
III. Statistic uses—Uses to the legislator.—Neither have these been altogether overlooked. A synoptic sketch of them has been prepared. But of any suggestions to the legislator, the practical use depends upon the existence of a legislator—a legislator disposed to put them to use. And while by the blindness or patience of the uncorrupted portion of the people, the legislator is suffered to continue to take for the sole object of his labours on this part of the field of law, the preservation of those abuses, in the profit of which he has secured to himself so large a share, the indication of these uses may with little practical loss wait for a period much more remote than the completion of any such work as the present.
Meantime, in a succeeding chapter of this Introduction, a slight exemplification of them may be found.*
Of Laws considered as constituting the matter of Preappointed Evidence.
Of laws, under any such heads as registration formalities, genuineness, fairness,—so far as by fairness is meant freedom from external violence,—nothing need here be said;—nothing that could be said would here be in its place: but under the head designated by the words existence, knowledge of the inducements to observance, knowledge of the particulars to be observed, thence, in a word, possibility of observance, analogy and consistency concur in forbidding, even in this abridgment, an altogether unbroken silence.
When, in token of adoption, and for the purpose of his being subjected to the obligations created by it, an instrument of contract is made to receive the signature of a party to it, unfairness, and not without reason, is apt to be imputed to the transaction, if adequate means of making himself at all times acquainted with the particulars of the obligations thus imposed upon him, had not been put into his hands. But if, in this case, by means of an act of adoption thus signified by the respective parties, the particular rules contained in and expressed by the individual instrument in question, acquire on this occasion, and now for the first time with reference to these particular parties and their legally connected representatives and other relatives, the force of law;—at that same time the general rules of law, under and by virtue of which, in consequence of the particular engagement thus entered into, the fate of the parties will be disposed of, and on which the whole of that engagement will have to depend,—must already be in possession of that same eventually binding force.
Be it an expression of private will, be it an expression of sovereign will, be it a discourse of any other kind,—for making himself more or less acquainted with their contents, a man has but two ways—to read them with his own eyes, to hear them with his own ears.
For reading or hearing read the particular rules just mentioned, possibility is not wanting: words have been found for the expression of them; these words exist, and existing, want nothing but to be read. For reading or being read those general rules, on which the effect of those particular rules so completely depends, possibility is wanting: words for the expression of them do not exist: words for the expression of them have been, and will continue to be, anxiously kept from existing: and words that exist not cannot be read.
In any domestic or private situation, in any other situation how public soever, of command, to the man who should expect to see his will conformed to,—to any such man, were he backward in giving expression to it, much more if, leaving it purposely unexpressed, he were to make effective provision for securing the infliction of suffering, under or without the name of punishment,—on every occasion on which such industriously concealed will failed of being conformed to, to any such man, not merely would wisdom be thought wanting, but sanity itself would be a questionable possession.
To the extent of a vast and indefinite portion of the field of law, so far from giving expression to his will in England, not to speak of other countries, the sovereign has not so much as set himself to form a will. But, instead of forming a will, and giving expression to it, what has he done? He has abandoned this part of his duty to a set of men, to whom, in the character and under the name of judges, his negligence, or his craft has left the power of doing what little is in such hands possible to be done towards supplying this deficiency—towards making amends for this failure. To these substitutes for executing this task with any tolerable degree of beneficial effect every requisite is, and ever must be, wanting—adequate knowledge, adequate motives, adequate power,—everything. The power, whatsoever it be, which by them is exercised, is power exercised, not as power exercised by the legislator is, over men and things in classes, but over individuals: over individuals, and in that form of tyranny which, with the character of tyranny stamped on the face of it, has become proverbial under the name of ex post facto law. Those general rules, from which alone it would have been in men’s power to receive notice and to take warning, it being out of the power of these pseudo legislators to give birth to; every step taken by them in this course is marked by unlooked for suffering—suffering in some shape or other inflicted upon individuals to whom the means of escape have been denied:—every step they take is followed, if not by the exclamations, by the pangs of the afflicted, whose peace and comfort are thus offered up in sacrifice to highseated and hard-hearted indolence.
In comparison of what it would be, if this first duty of the sovereign were not, by this grossest and most wide-stretching of all neglects, kept in a state of constant violation, the condition in which society is thus left, is as yet but a state of anarchy.
Till the collections of published histories of decisions, and thence of cases liable to call for decision, had attained a certain degree of copiousness and extent, the legislator (true it is) was not as yet furnished with the stock of materials necessary for such his work,—matters, in a word, were not ripe for it. But so long as this symptom of immaturity shall continue, government itself cannot as yet, with propriety, be said to be of full age:—the period of complete civilization cannot be said to be as yet arrived.
In the histories of future ages, that period will be dated—from what event? From the extirpation of the last remnant of that most voluminous and proportionably mischievous nonentity, which, with such perfect propriety in one sense, with such flagrant impropriety in another sense, calls itself unwritten law.
Of Debates in Legislative and other Political Assemblies in which Law is made.
Of the subjects which present a demand for contemporaneous recordation, and which as yet have not received it at all, or if at all, no otherwise than from precariously existing instruments, and in a more or less imperfect state, it would be too much on the present occasion to attempt giving anything like a complete list.
By the all-comprehensiveness of their extent, two sets of legally operative facts, however, seem on the present occasion to present a claim for consideration, such as, even in a work having for its subject evidence considered in its most general point of view, cannot consistently remain altogether unsatisfied. These are—
1. Transactions of those assemblies, of the manifestation of whose will, law in the state of statute law is composed.
2. Transactions of those persons and assemblies, of the manifestation or supposed manifestation of whose will, the ideally existing, but too really governing, nonentity called common law is composed.
In regard to both these important collections of legally operative facts, three observations present themselves:—
1. That, of these several collections of facts, as correct and complete a representation as the nature of the case admits, ought regularly to be framed and published.
2. That no such representation is actually made.
3. That representations, more or less incorrect and incomplete, are habitually suffered to be framed and published, and are habitually, i. e. frequently, though not regularly, framed and published accordingly.
Such being the matter of fact, thereupon come two altogether natural, and in no small degree interesting questions:—
1. How happens it, that no system of correct and complete, and thence undeceptive, representation has hitherto been established?
2. How happens it, that the system or practice of incorrect and incomplete, and thence deceptive, representation has now for a considerable length of time had place?
For these two questions, separate as they are in themselves, one and the same answer may serve: that answer being applicable with little variation to both cases.
Under all governments, the external operations of the governors have been carried on under, have been determined by, the internal and conjoint operation of two antagonizing interests:—a public interest coincident with the interest of the governed, and a separate and comparatively private interest of their own, acting in opposition to that public one.
The conduct of each member of the governing body will, on each occasion, be determined by that one of the two, on which the circumstances of the time and the idiosyncrasy of the individual, taken together, have concurred in bestowing the greatest degree of operative force.
In general, in the state of things in England in respect of government, while the private and personal interest of the members is still far from being brought so near to a conincidence with their public interest, that is, with their duty, as it might be,—in case of conflict, real or apparent, between the two, except in so far as an exception is made by a time of great public danger, the private and separate interest is that which, in the bosom of each individual, will find itself in greatest force, and it is by this that his public conduct will be determined.*
Under a despotic government, this ascendency of separate over common, of private over public interest, finds nothing to counteract it: under a mixed government it finds a controverting power, an antagonizing and controuling principle, in the spirit of the people, operating with a force depending jointly on the share possessed by them in the government, and the degree of cultivation acquired by the public maid.
Under the English constitution, in so far as legislation and the exercise of supreme power is concerned, the governing body has two branches.
In each of them, except in so far as by correct and complete representation, reputation, and through reputation power, appears likely to be preserved or gained, it is the interest of each member that from correct and complete representation his speech and his vote should (as often, and in so far as it is likely to present itself to the public eye, as having been dictated by sinister interest as above described) stand as effectually protected and screened as possible.
In this view, the most favourable of all possible arrangements is that in which, being buried in utter and impenetrable darkness, as under the constitution of Venice, no representation at all is ever given of his discourse. From that point of perfection, the arrangement in relation to this head degenerates and falls off by numerous but difficulty distinguishable degrees, till it has sunk to that state of things in which, everything being represented exactly as it happened, every man (for in a political and deliberating assembly the only works are words) every man is by every other man judged of by his works.
At present, though in point of right, in so far as right is capable of being created by usage acting in opposition to manifest general interest, under the semblance and cloak of a representative body, of the members of which all are pretended to be, and some are really, deputed by the people they are said to represent, the country is governed by an oligarchy, in a proportion sufficient, could they agree among themselves, to substitute for the present constitution of England, the quondam constitution of Venice;—yet, on the other hand, in point of prudence, things are come to that pass, that so to order matters, as that, of the discourses there held, no representation at all shall transpire is, generally speaking, reputed either physically, or if not physically, prudentially at least, impracticable.
This point being given up, what remains is, so to order matters as that such representations as transpire should be, if not as far from being actually correct and complete, yet as far from being capable of being fixed upon and referred to as being correct and complete, as possible.
To the members individually, from this state of things results this manifest and great advantage of the discourses respectively delivered by them: whatsoever parts are found or expected by them to be productive of general disapprobation, may be, howsoever falsely (falsehood being by this means protected from complete disproof,) denied and disowned; while, on the other hand, whatsoever is found or expected to be productive of a contrary effect, is capable of being pourtrayed, not simply in its own proper colours, but in others as highly flattering as ingenuity can produce.
[* ]Beneficial, viz. the sense in which a man is considered as furnished and endowed with a correspondent quantity of the matter of good, and in respect thereof rendered capable of being, by means of eventual privation, subjected to a quantity of punishment greater than that to which a man less favoured by fortune stands exposed. By the burthensome sense of the same word, may be understood the sense in which, whether by the provision actually made in the way of punishment, or other burthensome obligation, or by the eventual probability of detection, a man is considered as being, with reference to this or that other person, or to persons in general, more likely to be subjected to any such burthen.
[* ]Gilbert on Evidence.
[* ]27th and 28th Finance Reports, 1787-8.
[* ]Chap. XXIII. Safeguards.
[* ]If, for example, the commencement or continuance of a war being the question upon the carpet, if, upon his calculation, a hundred a-year during the continuance of the war, or for ever, will be the amount of the contribution which according to his calculation he will have to pay, (and if in his calculation not only the amount of his own share in the burthen, but the interest which in the way of sympathy he takes in the amount of such part of the burthen as will have to be borne by his private and particular connexions of all sorts be taken into the account,) if his expected profit by the war be equal to 0, and no particular gust of passion intervene, to drive him from the pursuit of what appears to be his lasting interest upon the whole,—he will be against the war, and what influence it may happen to him to possess, will be exerted on that side. But if, while to the amount of £100 a-year loss by war is calculated upon as probable, profit to the amount of £1000 a-year, accompanied by equal or correspondent probability, presents itself as about to be secured to him by the operation of the same cause,—the man being an average man, not particularly known to you,—no consideration can warrant, nor can anything but mere mental weakness produce in you any such expectation as that peace will find in him a real advocate, or that whether he himself be or be not aware of what passes within him, his conduct will have for its determining cause, anything but the balance of profit and loss above brought to view.