Front Page Titles (by Subject) CHAPTER XXVI.: OF THE EXCLUSION AND NULLIFICATION OF CONTRACTUAL MATTER, INFORMALLY THOUGH SCRIPTITIOUSLY EXPRESSED, IN A TRANSACTION WHICH HAS BEEN THE SUBJECT OF MATTER FORMALLY EXPRESSED. - The Works of Jeremy Bentham, vol. 6
CHAPTER XXVI.: OF THE EXCLUSION AND NULLIFICATION OF CONTRACTUAL MATTER, INFORMALLY THOUGH SCRIPTITIOUSLY EXPRESSED, IN A TRANSACTION WHICH HAS BEEN THE SUBJECT OF MATTER FORMALLY EXPRESSED. - 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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- Errata—vol. VI. *
- An Introductory View of the Rationale of Evidence; For the Use of Non-lawyers As Well As Lawyers.
- Chapter I.: Title-page Justified.
- Chapter II.: Relation of Law to Happiness—of Procedure to the Main Body of the Law—of Evidence to Procedure.
- Chapter III.: Ends of Justice On the Occasion of Judicature. *
- Chapter IV.: Duties of the Legislator In Relation to Evidence.
- Chapter V.: Probative Force—whence Measured—how Increased—how Diminished.
- Chapter VI.: Degrees of Persuasion—thence of Probative Force—how Expressible.
- Chapter VII.: Causes of Trustworthiness and Untrustworthiness In Testimony—thence of Belief and Unbelief.
- Chapter VIII.: Of the Securities For Trustworthiness In Evidence.
- Chapter IX: False Securities For Trustworthiness In Evidence—oaths and Exclusions.
- Chapter X.: Of the Reception and Extraction of Evidence, Viz. With the Help of the Above Securities.
- Chapter XI.: Collection of Evidence—english Practice.
- Chapter XII.: Of Circumstantial Evidence.
- Chapter XIII.: Of Make-shift Evidence.
- Chapter XIV.: Of Preappointed Evidence.
- Chapter XV.: Difference Between Preappointed and Unpreappointed Evidence.
- Chapter XVI.: Preappointed Official Evidence.
- Chapter XVII.: Extempore Recordation, How Applicable to Legally Operative Facts At Large.
- Chapter XVIII.: Of Derivative, Including Transcriptious, Recordation, Wherein of Registration.
- Chapter XIX.: Exclusion of Evidence.—general Considerations.
- Chapter XX.: Exclusion Continued—causes For Which It Is Proper Or Not, According to Circumstances.
- Chapter XXI.: Exclusion Continued—causes For Which It Cannot Be Proper.
- Chapter XXII.: Exclusions By English and Other Laws—analytic and Synoptic Sketches.
- Chapter XXIII.: Safeguards Against Suspicious Evidence: Including Instructions Concerning the Weighing of Evidence.
- Chapter XXIV.: Authentication and Deauthentication, As Applied to Preappointed and Other Written Evidence.
- Chapter XXV.: Exclusion and Nullification Applied to Contractual Matter, In So Far As Writing Has Been Omitted to Be Employed In Giving Expression to It.
- Chapter XXVI.: Of the Exclusion and Nullification of Contractual Matter, Informally Though Scriptitiously Expressed, In a Transaction Which Has Been the Subject of Matter Formally Expressed.
- Chapter XXVII.: Imprisonment For Debt:—disguised Exclusion of Evidence Involved In It.
- Chapter XXVIII.: Of the Burthen of Proof: On Whom Shall It Lie?— (a Question Produced By Undue Exclusion of Evidence.)
- Chapter XXIX.: Evidence Considered In Its Relation to This Or That Fact In Particular—why Discarded From This Work.
- Chapter XXX.: Evidence In Relation to Particular Facts and Pleadings Under Technical Procldure.
- Chapter XXXI.: False Theory of Evidence (gilbert’s * )—its Foundation:—precedence Given to Written Before Unwritten.
- Chapter XXXII.: Liberalists and Rigorists—parties Belligerent In the Field of Jurisprudence, and In Particular of Evidence.
- Chapter XXXIII.: Conclusion.
- Appendix A.: Cautionary Instructions Respecting Evidence, For the Use of Judges.
- Chapter I.: Propriety of Cautionary Instructions, In Preference to Unbending Rules.
- Chapter II.: Considerations Proper to Be Borne In Mind In Judging of the Weight of Evidence.
- Chapter III.: Considerations Respecting the Effects of Interest In General Upon Evidence.
- Chapter IV.: Considerations Respecting the Effect of Pecuniary Interest Upon Evidence.
- Chapter V.: Situations.
- Chapter VI.: Makeshift Evidence.
- Chapter VII.: Scale of Trustworthiness.
- Chapter VIII.: Best Evidence, What?
- Chapter IX.: English Law Scale of Trustworthiness.
- Appendix B.: of Imprisonment For Debt.
- Section I.: Its Inaptitude As an Instrument of Compulsion.
- Section II.: Its Inaptitude, Applied As It Is As an Instrument of Punishment.
- Section III.: Its Needlessness Demonstrated By Experience.
- Section IV.: End, Or Final Cause of the Institution—judge and Co.’s Sinister Interest.
- Section V.: Means Employed—mendacity and Usurpation.
- Section VI.: Affidavit Previous to Arrest, Its Unfitness.
- Section VII.: Consequence of the Exclusion Thus Put Upon Evidence.
- Section VIII.: Advocates For the Abolition of Imprisonment For Debt—their Errors.
- Section IX.: Scotch Law—cessio Bonorum, Its Inadequacy.
- Section X.: Agenda—course Proper to Be Taken On the Occasion of Insolvency.
- Appendix C.: False Theory of Evidence—(gilbert’s.)
- Rationale of Judicial Evidence, Specially Applied to English Practice. From the Manuscripts of Jeremy Bentham, Bencher of Lincoln’s Inn.
- Prospective View.
- Book I.: —theoretic Grounds.
- Chapter I.: On Evidence In General.
- Chapter II.: Of Evidence Considered With Reference to a Legal Purpose; and of the Duties of the Legislator In Relation to Evidence.
- Chapter III.: Of Facts—the Subject-matter of Evidence.
- Chapter IV.: Of the Several Species Or Modifications of Evidence.
- Chapter V.: Of the Probative Force of Evidence.
- Chapter VI.: Degrees of Persuasion and Probative Force, How Measured.
- Chapter VII.: Of the Foundation Or Cause of Belief In Testimony.
- Chapter VIII.: Modes of Incorrectness In Testimony.
- Chapter IX.: General View of the Psychological Causes of Correctness and Completeness, With Their Contraries, Incorrectness and Incompleteness, In Testimony.
- Chapter X.: Of the Intellectual Causes of Correctness and Completeness In Testimony, With Their Opposites.
- Chapter XI.: Of the Moral Causes of Correctness and Completeness In Testimony, With Their Opposites.
- Chapter XII.: Ground of Persuasion In the Case of the Judge—can Decision On His Own Knowledge, Without Evidence From External Sources, Be Well Grounded?
- Book II.: —on the Securities For the Trustworthiness of Testimony.
- Chapter I.: Object of the Present Book.
- Chapter II.: Dangers to Be Guarded Against, In Regard to Testimony, By the Arrangements Suggested In This Book.
- Chapter III.: Internal and External Securities For the Trustworthiness of Testimony Enumerated.
- Chapter IV.: On the Internal Securities For Trustworthiness In Testimony.
- Chapter V.: Of Punishment, Considered As a Security For the Trustworthiness of Testimony.
- Chapter VI.: Of the Ceremony of an Oath, Considered As a Security For the Trustworthiness of Testimony.
- Chapter VII.: Of Shame, Considered As a Security For the Trustworthiness of Testimony.
- Chapter VIII.: Of Writing, Considered As a Security For the Trustworthiness of Testimony.
- Chapter IX.: Of Interrogation, Considered As a Security For the Trustworthiness of Testimony.
- Chapter X.: Of Publicity and Privacy, As Applied to Judicature In General, and to the Collection of the Evidence In Particular.
- Additional Notes to Books I. & II. Chiefly With Reference to Alterations Made In the Law Since the Date of the First Edition,— Viz. 1827.
- Book III.: Of the Extraction of Testimonial Evidence.
- Chapter I.: Of the Oral Mode of Interrogation.
- Chapter II.: Notes, Whether Consultable?
- Chapter III.: Of Suggestive Interrogation.
- Chapter IV.: Of Discreditive Interrogation.
- Chapter V.: Of the Demeanour of the Adverse Interrogator to the Witness, Considered In Respect of Vexation.
- Chapter VI.: Of the Notation and Recordation of Testimony.
- Chapter VII.: That the Evidence Should Be Collected By the Same Person By Whom the Decision Is to Be Pronounced.
- Chapter VIII.: Five Modes of Interrogation Compared.
- Chapter IX.: Epistolary Mode of Interrogation, In What Cases Applicable.
- Chapter X.: Epistolary Mode of Interrogation, How to Apply It to the Best Advantage.
- Chapter XI.: Helps to Recollection, How Far Compatible With Obstructions to Invention?
- Chapter XII.: Of Re-examination, Repetition, Or Recolement.
- Chapter XIII.: Of Spontaneous Or Uninterrogated Testimony.
- Chapter XIV.: General View of the Incongruities of English Law In Respect of the Extraction of Evidence.
- Chapter XV.: Mode of Extraction In English Common-law Procedure—its Incongruities.
- Chapter XVI.: Mode of Extraction In English Equity Procedure—its Incongruities.
- Chapter XVII.: Mode of Extraction In English Ecclesiastical and Admiralty Courts—its Incongruities.
- Chapter XVIII.: Incongruities of Roman Law In Respect of the Extraction of Evidence.
- Chapter XIX.: Of Confrontation Under the Roman Law.
- Chapter XX.: Recapitulation.
- Book IV.: Of Preappointed Evidence.
- Chapter I.: Of Preappointed Evidence In General.
- Chapter II.: Of Instruments of Contract In General.
- Chapter III.: Of the Enforcement of Formalities In the Case of Contracts.
- Chapter IV.: Formalities, What Proper, and In What Cases?
- Chapter V.: Of Wills, As Distinguished From Other Contracts.
- Chapter VI.: Of Preappointed Evidence, Considered As Applied to Laws.
- Chapter VII.: Of Public Offices At Large, Considered As Repositories and Sources of Preappointed Evidence. *
- Chapter VIII.: Of Official Evidence, As Furnished By Judicial Offices.
- Chapter IX.: Of Preappointed Evidence, Considered As Applied to Legally-operative Facts At Large.
- Chapter X.: Of the Registration of Genealogical Facts, Viz. Deaths, Births, and Marriages.
- Chapter XI.: Of Offices For Conservation of Transcripts of Contracts. *
- Chapter XII.: Of the Principle of Preappointed Evidence As Exemplified In the Case of Real Evidence (evidence From Things.)
OF THE EXCLUSION AND NULLIFICATION OF CONTRACTUAL MATTER, INFORMALLY THOUGH SCRIPTITIOUSLY EXPRESSED, IN A TRANSACTION WHICH HAS BEEN THE SUBJECT OF MATTER FORMALLY EXPRESSED.
Of the two cases already brought to view, the reason, such as it is, that pleads in behalf of the exclusion, has been seen to grow fainter in the second, than it was in the first. In the present case, it will be seen vanishing altogether.
In both these cases, the generation of fraud, and that under auspices under which success cannot possibly fail to attend it, was what the exclusion was seen to have for its certain consequence. On the other hand, the prevention or frustration of fraud, and that in a case in which it would not otherwise have been frustrated, may possibly, in here and there an instance, have been among the effects of it, more particularly in the first of these two cases.
In the present case, the produce of the exclusion will be seen to be pure unmixed evil:—fraud, even successful fraud, may be, and probably is, generated by it; none can be prevented by it.
Of any accessory formalities, which in addition to the only essential and fundamental formality, consisting in the use of that master art by which determinateness and permanence is given to the matter of human discourse, have ever as yet been employed in the most formal instruments,—of any such accessory formalities, such as signing and sealing by the parties, signing and sealing by attesting witnesses, the only real use is to establish the genuineness of all such scripts, be they what they may, as in the course of the measures taken for giving expression to the intention of the parties, happen to have been employed. But, on the occasion on which the question has been—whether, in addition to, and in explanation or alteration of, such contractual matter as has received expression in and from a formal instrument, other matter which has received its expression no otherwise than in and from an informal script, shall be received, the genuineness of the matter contained in the script has always been out of dispute.
Among the fruits of this policy, in addition to fraud, as above, two others, viz. depredation and oppression—injuries both of them alike unpunishable and irresistible—being committed, not against law, but with the assistance and by the power of the law, come now to be brought to view.
By the technical system of procedure, a sort of imperium in imperio, a graduated system of tyranny, has, as there has been such frequent occasion to show, been organized and established.
Under English law, not to speak of other systems, the sort of commodity called justice is not only sold, but being like gunpowder and spirits made of different degrees of strength, is sold at different prices, suited to the pockets of so many different classes of customers. On a lower shelf stands common-law justice;—and above it, on a higher shelf, the sort which is of a superior degree of strength—equity-court justice. The hundreds, who alone can come up to the price of equity-court justice, tyrannize over the thousands who cannot come up to the price of anything above common-law-court justice; while those who, though unable to pay equity-court price, are yet able to pay common-law-court price, have on their part the satisfaction of retaliating upon the millions to whom,—with the exception of that sort by which men are either hanged or transported, or fined, or with or without pillory imprisoned,—everything denied that ever bore the name of justice.
Generally speaking, of the complication produced by the grafting of informally though scriptitiously-expressed contractual matter upon the matter of a formal instrument of contract, the effect is to transfer the cognizance of the dispute, if on both sides there be money enough to feed it, from a common-law court to an equity court.
If the ground of your claim be comprised within the compass of a single instrument of contract, such as an agreement, or a lease to a tenant, you may, unless it be the pleasure of your antagonist to carry up the cause into a court of equity, obtain a decision upon it at the hands of a court of common law.
But if, in addition to the one formally expressed instrument of contract, so it be that, in an informal shape, contractual matter relative to the same transaction has been consigned to some informal script—say a couple of letters, say a minute of agreement—not even will the consent of your antagonist avail to keep you out of a court of equity. For amongst so many quirks and quibbles of the growth of the common-law courts, one is, that you cannot ground an action upon two instruments at once. And thus it is that the common-law system, being in such sort put together, that without assistance from some other quarter, it was impossible that society itself should be kept together, another system, under the name of Equity, was by necessity suffered to be imported in ecclesiastical bottoms, to apply a palliative to some of the most intolerable of its imperfections, to entangle with it, to obstruct it, to be obstructed by it, and to overrule it.
As to the case of wills, it has been already glanced at:—glanced at in a former chapter, in which it has been shown how, according to the technical form given to the description of the subject-matter disposed of, the self-same instrument of disposition, to the perfect and universal satisfaction of all lawyers for this century and a half past, is pronounced genuine and spurious at the same time.
Referred to in and by a formally expressed will and testament, and not otherwise, a script of any kind, deemed to bear application to the matter of it, is, in a court of temporal learning, genuine, and forms part of it; if not so referred to, spurious:—in a court of spiritual learning, the same script, referred to or not referred to, is genuine, and, of the expression given by the testator to the will declared by him concerning the posthumous disposition of his property, is as true a portion as any the most formal part of it.
On this most productive of all subject-matters, not only have spiritual courts a different mode of going to work, as compared with temporal courts, but so among these temporal courts, have equity courts as compared with common-law courts: that so, under favour of the maximum of confusion and uncertainty created and preserved, the maximum of oppression for the benefit of the rich among non-lawyers, and the maximum of depredation for the benefit of lawyers, may be for ever more and without ceasing exercised.