Front Page Titles (by Subject) CHAPTER XVII.: EXTEMPORE RECORDATION, HOW APPLICABLE TO LEGALLY OPERATIVE FACTS AT LARGE. - The Works of Jeremy Bentham, vol. 6
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Also in the Library:
CHAPTER XVII.: EXTEMPORE RECORDATION, HOW APPLICABLE TO LEGALLY OPERATIVE FACTS AT LARGE. - 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.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
EXTEMPORE RECORDATION, HOW APPLICABLE TO LEGALLY OPERATIVE FACTS AT LARGE.
Demand for Recordation thus applied.
Oblivion and misrepresentation are the disorders to which the matter of discourse stands exposed; against which the art of writing, and that alone, is capable of applying a specific remedy.
Take any fact whatsoever,—suppose it to be of the number of those to which the law (which, for the purpose of the argument, must itself be supposed to be of the number of those, of the knowledge of which the tendency is, upon the whole, of the beneficial cast) has given a capacity of legal operation, as above described,—misrepresentation and oblivion are accidents against which, by the supposition, it is desirable that the fact should be secured, viz. for and during the length of time, whatsoever it be, during which it is desirable that such capacity of legal operation should continue: since it is only in so far as these accidents are arrested, that the intended operation of the fact can continue to have place.
In so far as (in the nature of it) to the several parties, or to any of the parties whose interests are in any way liable to be affected, and by them known to be liable to be affected by its legal operation, the fact is, in the nature of it, an object of previous expectation, a natural as well as possible attendant circumstance is—that by the joint care of the whole number of persons, or at any rate of a part of that number, the arrangements, whatsoever they may be, which, in the state of society in question, are in use to be taken for the prevention of those accidents, will be made.
Thus it is, accordingly, in that case which, among those which present a demand for preappointed evidence, has already been mentioned as the case of principal importance, viz. the case where the matter of fact thus requiring to be observed is the existence of a legal contract, of a certain purport and tenor, made on a certain occasion, in virtue and execution of a legal power possessed by a person or persons certain to that effect. Whatsoever, on an occasion of that sort, is about to pass, being, if not by all parties eventually about to possess, by all parties actually possessing, in conjunction with apposite power, an immediate and determinate interest in the result intended, and in consequence foreseen and looked for,—what is natural and usual is, that the customary and appropriate arrangements adapted to the purpose of fixation and conservation as above, should accordingly with joint concurrence be made.
But among the facts which eventually become possessed of a legally operative virtue, there exist many in number, and in the aggregate stretching to an unlimited extent, in respect of which any such regular and universally agreed sort of provision as is here in question, is either in the nature of the case impracticable, or in point of fact has never hitherto been made. Here, then, in the field of duty, may be seen another path presenting itself to the view of a provident and diligent legislator.
Upon the degree of success with which the application of the instrument of fixation in question has (in the case of a legally operative fact of any kind) been attended, the result of the operation of that fact is not less completely, and still more immediately dependent, than upon the nature of the fact itself. In so far as the state of the case is such, that in the provision made for this most important collateral operation, so it is, that among the persons jointly but oppositely interested in the seeing it made, it happens to any one or more not to have actually taken a part in the making of those arrangements, in the instance of every such person in whose instance such circumstance has failed to have place, a possible cause of partiality, and thence of deceptious and injurious incorrectness and incompleteness in regard to the representation given of the matter of fact in question, cannot, it must be acknowledged, but have place.
Here, then, is one cause of misrepresentation and consequent deception, to the operation of which every system of arrangements that can be devised for extemporaneous recordation, cannot but remain exposed.
But if, for the securing of so important a result, no means at all be employed, the consequence is, that the fact will remain exposed to every possible cause of misrepresentation, including the particular cause just mentioned, viz. not only oblivion, but misrepresentation, in so far as it is to so high a degree apt to have place, in cases where design has had no part in the production of it.
The consequence being, that for the extemporaneous recordation of miscellaneous and casual legally operative facts, any system of recordation is better than no system at all: and thereupon what remains for consideration is—by what sort of shape a system of arrangements, having this object in view, may be most effectually adapted to its proper ends.
Even under the existing system of exclusion, the particular cases of exclusion contained in it excepted, no man, how great soever may be in reality his trustworthiness, is either excluded or exempted from officiating, when the time comes, in the character of a deposing witness. There is no man, therefore, in whose instance, at the very moment, or as near as possible to the very moment of perception, it is not manifestly of use, that in so far as prudentially as well as physically it may happen to be practicable, it will not be, for the purposes of truth and justice, desirable that this specific against misrepresentation as well as oblivion shall be employed.
Suppose the security in question not applied, the testimony of the individual in whose person, in the character of a percipient witness, the capacity has place, of furnishing direct evidence of the fact, in the character of deposing witness, continues, down to the very instant of deposition, exposed, and without any more safeguard at one time than another, to the influence of whatsoever causes of seduction, and consequent deceptious incorrectness and incompleteness, the situation and interior character of the witness stands exposed. Suppose this security applied, and the representation thus given of the fact exempt in any given degree from deceptious incorrectness and incompleteness, then, and in this case, from the moment the memorandum in question has been placed out of his power, any sinister interest by which he might be prompted to give any such subsequent representation of the matter as should in any degree be, in point of correctness and completeness, inferior to such antecedent representation, would find in it a manifestly formidable and probably victorious body of counter-evidence.
Principle on which a supply for this demand may be grounded.
Happily, on this occasion, the legislator, if prepossession and bad habit will suffer him to avail himself of the means which offer themselves to his hands, will find his endeavours not ill seconded by the nature of the case.
Of every man by whom, with a view to any judicial purpose whatever, a mass of evidence is prepared, it is, or at least is thought by him to be, for his interest that such evidence should obtain credence: for without such persuasion the act thus performed by him would be without a motive—an effect without a cause.
The probability which the mass of evidence in question has of obtaining credence will be as the apparent and supposed trustworthiness of the person of whose testimony it is composed. Whosoever, therefore, is the sort of person who, by the person by or on whose account the evidence in question is in contemplation to be exhibited, is considered as likely to possess, in the scale of imputed trustworthiness, the highest place in the opinion of the judge,—he is the official person who, by the intended witness in question, supposing him to be known for such, is most likely to be employed.
These observations premised, taking therefore under review a number of official persons of different descriptions, such as in the existing state of society in question it happens to the official establishment to afford, let the legislator, in the instrument designed for the notification of his will in relation to this subject, set them down in an order declared by him to be the order of preference. This done, whosoever, without more vexation and expense, has it in his power to obtain this service of the official person whose name stands highest upon the list, will not, without some special reason or motive to the contrary, address himself to any person whose name stands lower upon that same list.
For the function of casual recorder (for by that name, it should seem, it may not unaptly be designated,) a justice of the peace, a member of the governing body in any corporate town, a minister of the established church—a minister of any dissenting congregation—a member of the financial establishment,—in a word, any person holding an office of any kind under the crown—a person exercising any branch of the medical profession—a person belonging to the profession of the law, in the character of either barrister, attorney, or student:—these may serve as examples of classes of persons, who, in respect of probable trustworthiness, intellectual aptitude, and aptitude on a moral account, consideration of pecuniary responsibility included, might in the list of the law be proposed for choice.
On this, as on all other occasions, substituting to the principle of nullitication the principle of declaration of suspicion, the legislator may declare, that if of two persons, both open to a party’s choice, the one who is manifestly the most fit be set aside, the one least fit employed in his stead, in the undue preference thus given, a natural and justifiable cause of suspicion will be observable: whilst in the mind of him, whosoever he may be, to whom, on the occasion in which the preappointed evidence thus recorded is produced, it happens to officiate in the character of judge, its probative force will naturally and properly undergo a proportionable diminution.
By persons in any number, none of whom have been the objects of such choice, should the same functions be undertaken and performed, no inconvenience, no confusion, no difficulty, will ensue. Under the principle of nullification, yes;—difficulties innumerable, infinite, and each of them insuperable: of all these extemporaneous registers, all but one would be to be pronounced void; one, and one alone, good: which shall it be?
By the law as it stands at present, of these persons, they being by the supposition all of them percipient witnesses—there is not one, how little soever trustworthy, who would not, in the event of litigation, be liable to be called upon to testify in the character of a deposing witness: but with this check upon intentional, as well as support against unintentional incorrectness and deceptious incompleteness (or in a word against misrepresentation,) be his trustworthiness ever so low in the scale, there is not one of them whose trustworthiness would not by this security be raised to a higher level than what it would otherwise occupy.
No doubt but that, under this arrangement, and notwithstanding this arrangement—say even in consequence of this arrangement—so it might be, that on this or that occasion, for this or that purpose, in the shape in question, the sort of preappointed evidence in question might be fabricated. But what if it were? Being by the supposition false, and in point of intention of a deceptious tendency, the being an object of suspicion is a lot from which it would never find so much as a possibility of escape. Any plan of intended deceit,—where, then, is the advantage which, from the proposed arrangement in question, it would be possible for it to receive? Suppose no such means of fixation in existence; without it, the length of time during which a plan of fabrication may carry on its operation free from suspicion, is the whole time that intervenes between the moment at which the matter of fact has place, and the moment at which, if at all, it is taken for the subject-matter of judicial deposition: suppose the plan in question established, no sooner is the simple fact, viz. that by the person or persons in question, in relation to the transaction in question, at the place and time in question,—a minute has been made, than in the breast of all persons, to whom it happens to possess or take any interest in the affair, suspicion springs up, and all scrutiny that could be wished for, with all its force.
At the same time it may be observed, that if any such article of fabricated pre-appointed evidence were not communicated to the parties interested in it, at or near to the time at which the event to which it purported to relate took place, it would scarcely have the least chance of being received as evidence.
Precedents from English and French Law.
In the English code, by several statutes of old date, in some cases of delinquency, the disorder being of the chronical cast,* power is given to a justice of the peace to repair to the spot, and taking his observation of what passes, to commit to writing the discourse expressive of such observations; and to this written expression so given to such discourse, the statute gives the name and effect of a record.
Of the principle here in question, a sort of exemplification, such as it is, may be seen in those antique, but not altogether ill-imagined laws. But of the boundless ocean of possible legally operative facts, the provision thus made amounts not, in comparison with the whole of that boundless ocean, to more than one drop.
Under French law, before the revolution, this same practice, or, as it might be said, this same principle, had received a very wide extension.† Wheresoever, in the case of any species of transaction, lawful or unlawful, a judicatory could be assigned, under the cognizance of which, the nature of the fact considered, it might be reasonably expected to come, in general a judge belonging to that same judicatory—in particular cases an official person of a different description—had by some statute or other been designated, whose duty it had been made to repair to the scene of action, and there upon the very spot to make a sort of statement, or record or report, of whatsoever material facts presented themselves to his senses in the character of a percipient witness.
A record of this kind was termed a procès-verbal,—verbaliser was the verb by which the act of making it was designated. In the character, as was sufficiently manifest, of a security against misrepresentation, as well intended and studied, as casual and unintended, such was the importance attached to the circumstance of promptitude, that by a general rule it was provided that every such statement should, from beginning to end, be committed to writing upon the spot.
Such was the rule; though for enforcing it the punishment employed was, as usual in such cases of official delinquency, of the misseated kind. The sort of punishment distinguished by the term nullification: the official person the offender, the person punished, not he but this or that individual by whom the offence could neither be committed, nor could have been prevented.
In all these instances, as, time and place being considered, might well be expected, power has gone much beyond the mark, at least beyond the mark which, in the above suggestion, has been stated as the proper one.
In the oldest of the two English instances, a single justice of the peace, to the function of witness percipient, and thence deposing witness as therein appointed, is made to add that of judge, sole judge; and from the judgment so passed by him, no appeal is allowed.
In the next, still the same accomplished despotism: only, instead of its being given in an entire state to one, it is divided among three.‡
Under French law, in several of the instances, those of tax-gatherers in the number, the sort of preappointed evidence thus framed was required to be received in the character of conclusive evidence. In this way, saving possible contestation between A and B, which of them should be considered the one true man, the power of the judge was, though in a disguised state, and under another name,—and but the more effectually for being disguised,—bestowed upon the witness himself.
By application to a court of equity, you in certain cases have an examination of witnesses in perpetuam rei memoriam.
By this instrument, in so far as the use of it extends (for the not giving to it a wider field of action has been an oversight,) the purposes of the inventors are served with the usual fidelity: those of justice, and whoever has need of justice, with the usual faithlessness. In regard to the field of action, its limits are the same as those of a court of equity. Whatsoever may be the limits of a court of equity? No; not exactly so, not quite so extensive:—file your bill, and one of these days, and in your own particular case, some day or other, you will know, or you will not know, what they are. Delinquency, at any rate, delinquency is not included in them in any: say rather—for this is always safest—is included in them, if at all, scarcely in any of its shapes.
Be the purpose what it may, to this purpose, says the Practical Register in Chancery, a book in its day of high authority, no witnesses shall be examined but the aged or impotent. By this time, very likely it may be in some cases* otherwise; but in so far as it is so still, note the result. A remedy allowed, and the application of it confined to a state of things in which, upon the face of it, the probability is, that the purpose will not be answered by it.
If he be not impotent (whatever may be here meant by impotence,) the person must be aged:—would you know whether your wished-for witness be sufficiently aged? If you have a few hundred pounds more than you know what to do with, file your bill: and if you should happen to outlive the suit, you may perhaps know. Would you wish to know before your money is spent? Apply to the nearest astrologer: for five shillings he will give you as well-grounded an assurance as it is possible for any learned adviser to give you, for as many guineas.
Wheresoever quantity is concerned, it is among the properties of judge-made law—equity shape, as well as common-law shape—to be incapable of drawing lines; i. e. in other words, of serving in any person’s case in the character of a guide—of guide to that action of which it calls itself the rule. This happy incapacity is interwoven in its very essence: and in this, which is but one out of several circumstances, any one of which would suffice for rendering it radically incapable of answering its intended purpose, may be seen one of the attributes by which it is rendered so lovely in the eyes of its professors, and so oppressive to all those upon whom application is made of it.
[* ]Forcible Entry:—Statutes 15 R. II. c. 2: 8 H. VI. c. 9.
[† ]Dict. portatif de Jurisprudence. Paris 1763. Tit. Procès-Verbal.
[‡ ]Two justices of the peace at least, and the sheriff.
[* ]3. P. Williams 77.