Front Page Titles (by Subject) 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. - The Works of Jeremy Bentham, vol. 6
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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. - 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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EXCLUSION AND NULLIFICATION APPLIED TO CONTRACTUAL MATTER, IN SO FAR AS WRITING HAS BEEN OMITTED TO BE EMPLOYED IN GIVING EXPRESSION TO IT.
Relation of this to preceding topics, viz. Preappointed Evidence, Exclusion, Authentication, &c.
Remains for consideration one head of practice, in the examination of which four several topics, which have already, each of them, received a separate consideration, viz. preappointed evidence, exclusion, and nullification, authentication and deauthentication, will require to be brought under review together.
To the purpose of evidence—on all occasions, and in each of the two periods or stages of its existence, viz. the period of perception, and the period of narration or statement, on a judicial occasion, or for a judicial purpose—the utility of written, say scriptitiously expressed discourse, in contradistinction to orally expressed discourse, has already on several occasions been brought to view.*
Impressed, or pretending to be impressed, with a general sense of the extreme utility of that master art, and, in particular, in respect of the application it is susceptible of to so important and all-comprehensive a subject as that of legally operative evidence—impressed perhaps with at least a due sense of this public and social use of it, and certainly not insensible to the more private benefit derivable by men of their own order in the character of professors of it, in its application to the profit yielding sort of purposes here in question, men of law have, in England as elsewhere, applied their power to the purpose of compelling men, on the occasion of their several legal transactions—their agreements—the dispositions made by them of their property—to have recourse to it.
Their power has been accordingly applied: and in what way? On this and that occasion, if by the party or parties in question, for the giving expression to contractual matter of any kind, as above designated, orally expressed, in contradistinction to scriptitiously expressed discourse, has been employed, they have taken upon them to put an exclusion upon whatsoever evidence might be necessary or conducive to the establishment of such contract—upon all evidence, in so far as applied to the proof of such discourse, i. e. to the fact of its having been holden, and consequently to the statement of its contents.
Of this exclusion, what has been the consequence?—1. Every contract, or mass of contractual matter, upon the evidence of which such exclusion has been put, has been thereby nullified:—nullified—and on what ground? On the ground that contractual matter, the genuineness of which has no other proof than the sort of evidence thus excluded, ought to be considered not as genuine, but as spurious.
Here, then, by the want of that formality, viz. writing, which is of the essence of preappointed evidence, and of more value than all other possible formalities put together, an exclusion is put upon evidence; and by means of such exclusion, matter of a contractual nature is considered as deauthenticated; and thereby the contract—be the expression judicially declared to have been given to it ever so genuine—nullified.
Disguised, is the class to which the sort of exclusion here applied seems referable. For the deception, the apprehension of which has been the source or efficient cause of the precaution thus taken, has had for its ground not any quality ascribed to this or that class of witnesses—for the exclusion applies alike to all witnesses—but the consideration of the infirmity of the vehicle, viz. orally expressed discourse, employed in the conveyance of it.
In regard to the exclusion here in question, one observation that will be apt enough to present itself is—that the ground, on which in point of reason and utility it rests, is much stronger than in any of those cases which have been brought already under review.
This being acknowledged, still it will appear that the ground, how much soever less weak in this than in those other cases, wants much of being strong enough to support the structure that has been built upon it.
—Case 1. Writing not employed: object of the exclusion, preventing or frustrating spurious Contracts orally expressed.
The exclusion which, in this way, has been put upon orally expressed contractual matter, in favour of scriptitiously expressed contractual matter, has been put upon it in two very distinct cases:—
1. Where, in relation to the same transaction, no scriptitiously expressed contractual matter is forthcoming: in which case, the exclusion may be said to be absolute.
2. Where, in relation to that same transaction, scriptitiously expressed matter having been brought into existence, is forthcoming and exhibited: in this case, the exclusion may be said to be limited—limited, viz. to the case in which, in relation to the same transaction, contractual matter scriptitiously expressed makes its appearance.
In these two cases, the propriety of the nullifying exclusion will be seen to stand on grounds considerably different.
In the first place, presents itself as being the most simple, the case in which the exclusion is, in the sense just explained, absolute.
Impropriety of the Exclusion, &c. in this case.
In the character of an objection to the exclusionary system, one observation presents itself in limine. Writing, in its application to the preservation of evidence,—writing, the art of writing, is, comparatively speaking, of modern date. When as yet it was unknown, not only a man’s property liberty, reputation, and condition in life, but his very life, was disposed of on the mere ground of orally expressed evidence. What!—every judicial act by which, at the stage of society anterior to that in which writing came into common use any of those possessions were disposed of, was it an unjust act?—the evidence on which it was grounded, was it in every instance spurious or false?
This consideration, were even this the only one, might of itself suffice to dispose a man to pause before he acceded to the propriety of the application so lightly made of the evidence-excluding principle on this as well as so many other occasions.
Against the employment of so harsh an instrument, the same objections, which apply in every other occasion, will be found to apply in this; whilst, in the character of a highly advantageous substitute to so harsh an instrument, still the same succedaneum presents itself; viz. declaration of suspicion, notified by effective promulgation.
Of the lightness, not to say the absolute nothingness of the mischief, by the apprehension of which this weapon of defence—this instrument of supposed security—was put into the hand of the man of power, still the same evidence, still the same demonstration afforded by experience. I mean the experience afforded by the inconsistency by which the practice under this head has been marked; viz. the inconsistency between the application made of the instrument in some cases, and the refusal to make application of it in other cases.
The object of apprehension, the fraud apprehended, is the employing of false testimony to the setting up as genuine, and really entered into by the parties in question, this or that matter of contract, which, though pretended to have been agreed upon by them, was not really agreed upon by them.
But on this, as on other occasions, what is manifest is—that if, antecedently to regulation, fraud to any given amount or effect be capable of being with equal facility operated with success, in each one, say of half-a-dozen shapes,—then so it is, that, by regulation which, how effectual soever in preventing the commission of the fraud in four of the shapes, leaves it in the remaining two no less practicable than before, the quantity of fraud commissible is not really diminished, nor is any real advantage gained:—instead of its being dried up, all that can have been done with the current is to turn it out of this or that one into this or that other channel.
By this inconsistency, whatsoever may be the supposition concerning the veracity of an indeterminate and consequently unknown witness, the course taken by this exclusionary policy is rendered equally indefensible:—veracious, a man ought not to be excluded when he is excluded: mendacious, he ought not, upon the principles of the system, to be admitted when he is admitted.
Another circumstance that ought naturally to operate with considerable effect as a sedative against all apprehensions of considerable public mischief by fraud in this shape, if the supposed security afforded by the nullifying exclusion were taken away, is this,—viz. that all along, how slight soever the orally delivered testimony by which the imputation has been supported, the imputation of fraud has all along been considered sufficient to deauthenticate and destroy the effect of the most formally as well as scriptitiously expressed instrument of contract.
True it is, that of the mischief to which men are thus exposed by means of mendacious orally-delivered evidence, the extent is not so great under the exclusion put upon evidence of orally-expressed contractual matter as in the other case,—the extent is not in a manner unlimited, as in the other case: inasmuch as the persons exposed to suffer by mendacious evidence, by which fraud is falsely imputed to this or that one of a number of persons concerned together as parties to a contract,—that contract being of the number of those which have found their expression in the form of a written instrument,—are such and such only to whom it has happened to have been engaged in some contract or other so expressed.
But how far soever from being equal to the unlimited number above mentioned, so great is the number of persons who, having been actually engaged in a scriptitiously expressed contract of this or that nature, have thereby stood exposed to become sufferers by the sort of fraud which consists in the seeking to nullify the genuine written expression of a bonâ fide contract by means of the imputation of fraud cast upon this or that one of the parties engaged in it, that by the continuance which, without complaint or objection, has for so many centuries been given to a practice under which credence is given to the orally-expressed evidence of perhaps no more than a single witness, in opposition to scriptitiously expressed preappointed evidence concerning that same transaction, no slight presumption seems to be afforded, that the amount of any mischief that can have been produced by orally-expressed mendacious evidence, delivered without the check afforded by a scriptitious instrument of contract relative to the same transaction, in support of a falsely-partied orally-expressed contract, cannot have been very considerable.
In all the cases in which, under the notion of saving a jury from being deceived by false evidence, and the individual from being made a sufferer by it, an exclusion in the character of an extraordinary safeguard is thus put upon evidence, safeguards of the ordinary kind may exist in any number, and in any degree of force;—in every instance counter-interrogation, to wit, applied to each mendacious witness, and as it may happen, counter-evidence from the mouth of whatsoever number of honest witnesses the individual case in question may happen to afford; while, from the fraud which, upon invitation even by the law, is committed by those who plead the law against a contract which, though in this secret way nullified by the law, was really entered into, there exists no possible means of escape: if so the case be but of the number of those to which the exclusion extends, so sure as is the fraud attempted, so sure is it committed.
In favour of the exclusionary and nullification system, as applied to evidence in support of supposed orally expressed contracts, an argument has been produced and fabricated out of that other application of the exclusionary system, by which, in jury-trial in the common-law courts, an exclusion is put upon the testimony of parties on both sides of the cause.
Suppose an altogether imaginary contract, supposed to have been entered into between two parties between whom no such transaction ever passed—and this is the case in which, in respect of the number of persons threatened by it, the danger assumes the most formidable aspect;—in the conflict that would take place between testimony and testimony in the presence of the judge, with what advantage would not the injured party have to contend against his mendacious adversary!—with all that advantage which self-conscious truth and innocence have over self-conscious mendacity and guilt.
But this is among the means of detection, by which the technical system has taken care that its most profitable servant and best customer, the mendacious depredator—the depredator whose instrument of depredation is composed of fraud, shall not be embarrassed and annoyed.
Pernicious in the extreme is the spectacle where insincerity and improbity are universally and indubitably seen to be crowned with success, and that success is with equal invariability and certainty seen to have had for its cause, the encouragement given to those vices by the law itself.
Under the system of exclusion and nullification, in its application to orally-expressed contractual matter—this unseemly state of things may be exhibited in a variety of ways:—
1. Of the expression given to the orally-expressed contractual matter, there may have been percipient witnesses in any number, all perfectly agreeing in the account given by them of the transaction, and each of these giving to his statement any degree of publicity that may be imagined.
2. When, by the assistance of the law, a man whom it has found or made dishonest, thus gets rid of his engagement, not only is this corruptive quality of the law known to the man himself, in whose hands it has been an instrument of miquiry, but by extrajudicial discourses of his, whether of a confessional or a jactantial nature, it may happen to it to be rendered notorious to other persons in any number: yet all this while, the law being peremptory, the notoriety of the fraud will not detract anything from its nullifying force. And in the sight of everybody there remains the law, at all times, and on any number of occasions, able and ready to give to the like fraud the like existence, and to secure the like success.
Under the system of declaration of suspicion, no such corruption, no such pernicious notoriety, can have place. Notwithstanding the warning given by it, suppose a plan of predatory mendacity, such as the statute professes to prevent, formed and executed with success; with success, the jury being deceived by it: no such general disastrous expectation is produced here. One jury has been thus deceived; but it follows not that any other will be: whereas, by the nullifying law, the judge, though not deceived, is, in the eyes of all, seen to be not only authorized but forced to act, and ever more to act, as he would do if he were deceived.
The facility afforded for the admission of truth under the exclusionary system,—compare it with the facility afforded by the warning system.
Under the warning system, notwithstanding the warning, each article of evidence on the one side, as on the other, is left capable of being estimated at its exact worth,—left to operate with its proper degree of probative force: and this on both sides. Under the nullification system, by means of exclusion,—under the exclusionary system, be the number of evidences on that side, and the aggregate of the probative force, ever so great,—they are, in every case alike, divested of the whole of it—stript of their whole value: the whole body of it is smothered and suppressed.
From the exclusionary system, and in particular in its application to the present case, whatsoever utility can be expected, depends altogether upon the notoriety of the regulation made by it—upon the efficiency of the measures, if any, taken for the purpose of causing it to be present to the several minds on which the effect aimed at by it is to be produced. Whatsoever good it has any chance of doing, is in proportion as it is known: in proportion to the number of instances in which, on the occasion in question, it is present to the mind on which it is designed, or pretended to be designed, to operate. Of the mischief which it is so much more assured of doing, the quantity runs in proportion to the number of instances in which, on the occasion in question, it fails of being present to the mind on which it is designed, or pretended to be designed, to operate.
Of the authors of the technical system, of which the evidence-excluding system makes so essential a part, it being the interest that the good should be at its minimum, and the evil at its maximum, such accordingly has been the result.
Upon a state of things so unexampled, and as yet so hopeless, as that of a tolerably efficient system of promulgation, the efficiency of the warning system, in the character of a preservative against deception from the source here in question, has no such strict dependence. No doubt but that the thing to be desired in the first place is, that no such attempt should be made: no vexation of that sort which, even in the least vexatious mode possible, it is impossible that litigation should not produce: no expense in the article of money on either side—no expense in the articles of probity and veracity on one side—should be incurred to ensure the accomplishment of this object. But in the next place, to whatsoever attempts of the sort in question it may happen to be made, the thing to be desired is, that they may be frustrated: and to this purpose, even the monitory observation, without any antecedent promulgation—the monitory observation from the mouth of the judge, or though it were but from the mouth of the party interested, especially on the supposition of its having received the sanction of the law, and been adopted into the text of the law, may suffice.
Compared with the system of exclusion and nullification, the system of warning presents another great advantage: the utility and even the innoxiousness of the system of exclusion and nullification is completely dependent on the skill of the legislative draughtsman—on the correctness, completeness, and clearness of the description which he has given of the cases to which it has been his meaning that the exclusion should apply, and of the cases to which it has been his meaning that it should not apply.
Of any failure in this respect, the natural consequence will be, that even should it have been his sincere intention and endeavour to do nothing but good, the result of these endeavours may be productive of nothing but evil: of the entrance left open to fraud at some other hole while one hole is stopped up, the effect will be, that the fraud which he has it in view to exclude will not be diminished: and thus, of the sort of fraud to which in the very nature of the case no such exclusion can avoid giving encouragement and existence, the mischief will stand uncompensated, constituting the only fruit of which this policy is productive.
And such, accordingly, has been the product of that work, the which, under the name of the statute of frauds, is said to have had for its efficient cause the united wisdom of the most eminent lawyers of that time, including the twelve judges.
To the system of effective promulgation and declaration of suspicion, no such nice workmanship is necessary. For it to produce not only all the effect which it is capable of producing, but all the effect which is desirable, nothing more is necessary than on each occasion the pointing the attention of those, to whom it belongs to judge, to a plain suggestion of common sense, deduced from experience,—in a word, to those very considerations, in which, though so unhappily applied, the system of exclusion and nullification took its rise:—to a plain suggestion of common sense, leaving the application of it to be governed, as in each individual case it ought to be governed, by the peculiar circumstances of each individual case.
—Case 2. Writing employed: object, preventing or frustrating spurious orally-expressed alteration.
Comes now the case in which the application of the nullifying exclusion put upon orally-expressed contractual matter, in favour of scriptitiously-expressed contractual matter, is limited: limited, viz. to the case by which, in relation to the same transaction, contractual matter scriptitiously expressed makes its appearance.
In this case, matter of either description may, in its relation to matter of the other nature and quantity, be considered entitled to the appellation of principal matter, leaving thus, for the distinctive appellation of the other, the epithet accessory.
At the same time, considering the obvious advantage with which the use of writing is in this as in so many other cases attended,—to the scriptitious matter, if the case afford any, will the epithet principal be in general found to be with greatest propriety applicable.
In this case, the contract is the appellation by which the aggregate quantity of scriptitiously expressed matter, or if it consist of scripts more than one, the principal script, will naturally be designated. In this case, accessory contractual matter will be the denomination expressive of the sort of relation which the orally-expressed contractual matter bears to the other.
And here at the same time it appears how inadequate the existing nomenclature is to the exigency of the case, and why it is, that, for the purpose of comprehending at the same time whatsoever matter is considered as principal, and whatsoever matter is considered as accessory, the term contractual matter has been employed.
Placed upon this footing, the practical question here to be considered is—a contract scriptitiously expressed: in other words, an instrument of contract being forthcoming, shall or shall not an exclusion be put upon evidence, the effect of which is to assert the existence and exhibit the supposed contents of contractual matter orally expressed, supposed to have been agreed upon in relation to the same transaction between the same parties? and thereupon to constitute so much accessory matter applicable in explanation or alteration of such principal matter?
If admission be given to the supposed accessory matter orally expressed, a supposition virtually included in such admission is—that without the addition of the orally expressed matter, the statement and representation given by the scriptitiously expressed matter, and in particular by the instrument of contract, is incomplete.
But note, that in this same case, if the existence of such supposed orally expressed contractual matter be considered as established, and the purport of it sufficiently ascertained, the consequence is, that without it, the expression given to the contract by the scriptitious matter alone cannot but be considered as incomplete, and in proportion to the nature and importance of the deficiency, deceptious.
Greater impropriety of the Exclusion in this case.
Whatsoever considerations have been seen pleading against the nullifying exclusion in the preceding case, will be seen pleading against it in this case: pleading against it, but with augmented force.
1. In the first place, of the apprehended mischief to which the exclusion has been applied in the character of a remedy, the extent is in that case beyond comparison greater than in the present: in that case unlimited, in the present case limited.
Among persons capable of contracting in the way in question, there exists not any person against whom pretended contracts may not to any amount be by possibility set up, supported by mendacious evidence, and who is not consequently exposed to be made a sufferer to an unlimited amount by fraud in that shape: whereas in the present case, the persons exposed to be made sufferers by fraud in the shape here in question, are, by the supposition, such and such only to whom it has happened to have been engaged in a contract of some sort or other scriptitiously expressed.
2. In the next place, supposing evidence of the supposed orally expressed matter admitted, the danger—i. e. the probability of the mischief in question, wants much of being as great in this as in that other case.
The circumstance to which this diminution of probability is owing is this, viz.—
In the present case, by the supposition, by the parties in question, in the course and for the purpose of the transaction in question, writing has been actually employed. Out of this established fact arises a material inference, an apparent probability, that the importance of this mode of expression to the purpose of giving to the contractual matter in question a determinate, permanent, and invariable existence, was by these same parties understood. But, admitting this mode of expression to be understood by them to be the fittest and most eligible mode, it is inconsistent—it is in a high degree improbable—that in the course of the same transaction the same parties should, even for the explanation, much more for the alteration of the matter expressed in this most trustworthy mode, apply other matter, expressed no otherwise than in that other and least trustworthy mode.
Here then, as often as, in the sort of case in question, by orally or otherwise expressed direct evidence, the existence of orally expressed contractual matter, agreed upon at the time in question by the parties in question, is affirmed, so it is that this direct evidence finds itself encountered by an article of circumstantial evidence, to the effect above described:—principal fact evidenced or probabilized, spuriousness of the supposed orally expressed matter;—correspondent evidentiary fact, improbability—psychological improbability—improbability, viz. that under a persuasion of the superior eligibility of the scriptitious mode of expression, the oral mode should by all parties have been employed: employed, and if for the purpose not of mere explanation, but alteration, employed for the purpose of its operating pro tanto in contradiction of matter expressed in a mode, of the superior trustworthiness of which there is room to suppose, as above, that on the occasion of this same transaction, they themselves were duly sensible.
Such is the consideration on which all direct evidence, true or false, exhibited in proof of supposed orally-expressed contractual matter, supposed to have been grafted in the character of accessory matter upon principal matter scriptitiously expressed, finds a constantly attendant article of counter-evidence.
Such at the same time is the consideration in which the judicatory, to which the evidence is exhibited, finds a natural and constant warning, putting it upon its guard against all deception, to which in such case it can stand exposed to be subjected to by false evidence.
And though, together with whatsoever matter of law happens to bear upon the species of contract in question, the factitious warning supposed to be expressed and notified by the legislator can never receive a too universal and universally efficient notification, yet the more powerful is the operation of the natural warning thus afforded by the nature of the case, the less is the need of the artificial warning, the less the inconvenience liable to result from any deficiency in the effective notification given to it.
And what is the consideration which it may be the expectation of the legislator to find already present in case of litigation,—present to the mind of the judges, and which, for the prevention of litigation, it is or ought to be his design and object to impress beforehand,—to impress at the time of entering into the contract, and giving to it its expression,—on the minds of the parties? It is no other than the very consideration which, in the minds of the authors of the exclusionary and nullifying law, or rule of law,—supposing their intention upright and sincere,—must, in the character of efficient or productive motive, have given birth to the measure by which the nullifying exclusion was thus applied.
To evidence assertive of the existence, and stating the alleged contents of an instrument of contract, therein and thereupon asserted to have been destroyed, admission has been given without scruple, and thereupon credence bestowed upon it, upon the testimony of a single witness. Comparatively speaking, in a case in which no such instrument ever was in existence, how easily and safely might not a false tale, assertive of its existence, be fabricated;—how much more difficultly and perilously, where, operating in the character of a check upon any such falsely asserted accessory matter, declared to have been orally expressed, there exists principal matter, in a scriptitious form,—in the form of an instrument of contract, of which the genuineness is out of dispute!
[* ]The object of the exclusion put upon orally expressed matter, is that writing may be employed: therefore it is that to the sort of contract in question, whatever it may be, in case writing be not employed in it, the nullification is applied—applied, viz. by means of the exclusion put upon the only evidence by which the contents of it can be brought to view, or the existence of it proved.