Front Page Titles (by Subject) CHAPTER XXVIII.: OF THE BURTHEN OF PROOF: ON WHOM SHALL IT LIE?— (a question produced by undue exclusion of evidence.) - The Works of Jeremy Bentham, vol. 6
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CHAPTER XXVIII.: OF THE BURTHEN OF PROOF: ON WHOM SHALL IT LIE?— (a question produced by undue exclusion of 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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OF THE BURTHEN OF PROOF: ON WHOM SHALL IT LIE?—(a question produced by undue exclusion of evidence.)
Answer to the question, on the ground of Natural Procedure.
The obligation of adducing proof, on whom—i. e. on which of two contending parties—shall it on each occasion be imposed? In this may be seen a question, the answer to which is, under the technical system of procedure, encompassed with endless difficulties.
On the ground of natural justice, which is the only justice—under the reign of natural procedure, nothing can be more simple—nothing can be more easy.
On that one of the parties, says the answer, let the obligation be, in each individual instance, imposed, by whom, in that instance, if fulfilled, the fulfilment of it will be attended with least inconvenience;—inconvenience meaning always delay, vexation, and expense.
But how and when can it be known which that party is? Answer: Under technical procedure, never:—care, as hath been seen,—effectual care—has ever been taken that it shall not be.
Under natural procedure, along with so many other points that may require to be ascertained, it becomes ascertained—ascertained of course—at the initial meeting of the parties coram judice.
Nay:—but by the party by whom the allegation is made, by him it is that the truth of it ought to be proved. Such is the aphorism which on this occasion commonly, and not unnaturally or unplausibly, presents itself.
But, besides that it is in the technical, rather than in the natural system, that it would be found to have its root, and that accordingly the collateral ends of justice, viz. avoidance of unnecessary delay, vexation, and expense, are altogether disregarded by it,—so it is, that as statutes have been drawn up, the application of it has been found embarrassed by knots more easily cut than untied.*
Under the natural system, allegation is itself proof:—at least, in so far as in relation to the principal matter of fact in question, or any matter of fact that is considered as evidentiary of it, the party alleging alleges himself to have been a percipient witness.
At the same time, generally speaking, it is not so good proof—proof to such a degree trustworthy—as an allegation to the same effect would be, if made by an extraneous witness.
Much less is it as good proof, as an allegation, made to the same effect, by the adverse party—by the party to whose interest it is adverse. In his mouth, if his evidence be to the same effect, no allegation respecting perception can be necessary;—declaration of persuasion—i. e. admission, in which declaration of persuasion is included—of persuasion, how slight soever, so it be on that side, is sufficient.
In this point of view, the opposite to the aphorism in question, has therefore more of truth in it than the aphorism itself. Supposing the matter in question to have fallen within the cognizance of the adverse party,—of the party adverse to him by whom the allegation is made—the mouth of such adverse party is the properest out of which proof of it can come:—the mouth out of which it will come in the most satisfactory shape:—the proof may in that case be considered as conclusive.
In another point of view, true it is, that the author of the allegation is the party on whom it is incumbent that proof of it shall have been exhibited, or rather that evidence shall have been bestowed upon it. Incumbent?—upon that party, in what sense incumbent? In this sense, viz. that if such evidence fail to be bestowed, he it is by whom the evil consequences of such failure will be felt.
On this occasion, the plaintiff’s side of the cause is the side which is naturally the first, if not the only one, that presents itself to view. Why? Because, on the plaintiff’s side, if his be the side that prevails, there must, in every instance, have been something that has been regarded as having been proved:—whereas to the defendant it may happen, not only to contend, but to contend with success, when and although on his side nothing has been proved, or so much as been attempted to be proved:—nothing alleged but the opposite of some proposition that has been alleged on the plaintiff’s side. For on the side of the defendant, such is the state of the case, where, on the side of the plaintiff, the allegation, together with whatsoever other proof, if any, it has found for its support, has failed to obtain credence.
Practice of the English Equity Courts in relation to this head.
Among the artifices of the technical system, has been the keeping the means of obtaining proof—the means of securing the forthcomingness, whether of persons or things, for the purpose of evidence, in a state of the most perfect imperfection possible. In this policy, two advantages have been sought for and obtained:—in the first place, the uncertainty whether the proof necessary to success will after all be found obtainable—that uncertainty, in which the worst cause need never despair to find more or less of encouragement and incitement to perseverance: in the next place, the plunder collectable and collected in the course of the slow and expensive steps made requisite to be taken for the obtainment of the proof, in a track, every inch of which is kept as open as possible to dispute.
In a court of equity, for example, the evidence which, under natural procedure, you might at the first meeting get from your adversary, without a farthing’s worth of expense, in a couple of minutes,—you obtain, if fortune be in your favour, at the end of as many years, and at the expense of as many hundreds of pounds:—the noble, and learned, and pious, and indefatigable keeper of the king’s conscience, with eyes lifted up to heaven, lips invoking that God to whom he is soon to render his account, right hand upon “the sacred tabernacle of truth his breast,” self-chained all the while to the judgment seat, like the pillar-saint to his pillar, and denying himself his natural rest, to expedite you:—musing ever and anon, with a mixture of pity and astonishment, on the unhappy condition of those barbarian regions, which, not only on the continent of Europe, but even in this our island, it is said, are to be found, to which the blessings which it is the province of a court of equity to dispense, are unknown,—so completely unknown, that not so much as the name of it is to be found in their language.
Here there may be seen a scantling of that state of things, in and by virtue of which a question naturally of such subordinate importance, and so easily settled, as that concerning the onus probandi, has been converted into a question of cardinal importance, on which it may often happen, that the fate of the cause, and of the parties in respect of it, may have to hinge.
Practice of the English Common-Law Courts in relation to this head.
Thus much as to equity procedure: observe now how the matter stands, at the stage of jury-trial, at common law.
At the trial, sits the plaintiff in one part of the court, and the defendant in the same or another. In this supposition, there is nothing of extravagance—nothing but what is every now and then realized. For the purpose of Judge and Co., had it been necessary that, in the physical sense of the word exclusion, an exclusion should have been put upon the parties in that case, that in that or in any other sense, an exclusion would long ago have been put upon them, need not be doubted—an exclusion with the same right, and the same reason, and the same facility, as that with which, so far as concerns testimony, an exclusion in cases and on pretences such as have been seen, has been put upon extraneous witnesses. But so long as, figuratively speaking, he is in the presence of judge and jury, no suitor is suffered to come into or remain in court, without a gag in his mouth,—so long as, literally speaking, a suitor on one side is not only not compelled, but not permitted to give answer to so much as a single question put to him by a suitor on the other, the doors of the judicatory remain as yet unclosed against those to whom what is called justice is administered:—and while his ruin is decreeing (for, without exaggeration, the loss of any single trial, such is the expense of it, would to any one of a vast majority of the whole number of the people, be absolute ruin,) while this is passing, the man who has right on his side may, if so it be that his conception can comprehend the explanation given him of the jargon that passes in his hearing, have the satisfaction of hearing with his own ears the proximate cause of the ruin to which, with so deliberate a solemnity and regularity, he is doomed.
Be this as it may, within a yard or two of the plaintiff (to resume the case,) sits the defendant. At this stage at last, if by half a year, or a whole year, or more than a year, spent in doing nothing but fee-gathering, the rapacity of Judge and Co. could be satiated,—at this last, or almost last stage, if the plaintiff being allowed to put a question or two to the defendant, so it were that the defendant were on pain of loss of his cause obliged to answer him, that evidence, which at the very outset of the cause might have been, would now at last be, extracted, or, according to circumstances, at least indicated.
As it is, no such question being to be put, the consequence is,—that if so it be that it being determined that it is on the plaintiff the burthen of proof lies, no other than that which is thus refused to him being at the moment within his reach—a nonsuit, or, according to circumstances, a verdict against him, is the consequence.
If it be the defendant who finds himself in the like disastrous situation, the defendant’s not being the situation in which a nonsuit can be suffered, an adverse verdict is the least misfortune by which he can be affected.
If, having right on your side, you have a verdict against you,—a misfortune which, on the part of your law advisers, any supposed breach of a rule, never declared or so much as made, may on the occasion of any suit or cause at any time bring down upon you,—then so it is, that for ultimate success your only chance depends upon a motion for a new trial; that is, a second trial in the worst mode imaginable, in order to know whether a third trial in the same less bad mode as the first shall take place.
If, instead of having a verdict against you, it be your good or ill fortune to receive the indulgence of a nonsuit, the consequence is—that on condition of retreading a certain number of useless and expensive steps, a quarter of a year, or half a year, or a whole year afterwards, according to the latitude of the scene of action—according as it is to the south or to the north—a second trial, though not in this case under the name of a new trial, is at your command.
In this statement may be seen the effect of the question, the curious and learned question concerning the onus probandi, and the use of it to those for whose profit the delay, vexation, and expense, have been manufactured:—of this question, as of questions in abundance of the like nice and curious frame, and amongst others, questions concerning evidence,—see many of the preceding chapters and the succeeding one.
Such are the questions on which, after arguments addressed to the judge alone, the jury remaining in the state of puppets, so large a part of the time which ought to be employed, in arguments on which the jury, with assistance only from the judge, should decide, is consumed.
Of the immense heap of pestilential matter of which the chaos called jurisprudence is composed, no inconsiderable proportion is composed of cases which, under the primitive system of personal appearance, could not have had existence.
Such, for example, are those which belong to the question concerning the onus probandi.*
On this head, as on so many others here touched upon,—justice, genuine justice allows but of one general rule:—the burthen of proof, lay it in each individual case upon that one of the parties on whom it will sit lightest: a point which cannot be ascertained but by the explanations above mentioned.
Look to the books, and here, as elsewhere, instead of clear rules, such as the nature of things forbids to be established by anything but statute law, you have darkness palpable and visible.
The affirmative is that which shall be proved:—plausible enough;—but affirmative or negative depends not merely on the nature of the fact, but also on the structure of the language employed in the description of it. After, and notwithstanding this rule, come exceptions: and who shall assign an end,—among lawyers, who would wish to assign an end,—to the string of exceptions?
In the onus probandi may be seen one of those innumerable gulphs into which many fortunes are destined to be thrown, but which no number of fortunes will fill up.
An offence is created, and in the creation of it, in relation to that offence in the character of causes of justification or exemption, a number of circumstances are established. On the part of the plaintiff, the existence of the act of delinquency is of course to be proved:—but of the several circumstances, any one of which suffices to exempt a man from the penalty,—to entitle the plaintiff to the service he demands at the hands of the judge, shall it be necessary for him to prove the non-existence respectively?—or shall the proof of the act in question suffice, unless on the part of the defendant the existence of one or more of them be proved?
Having to his own satisfaction sufficient assurance, that on the part of him whom he is prosecuting, no one of all the appointed causes of justification or exemption has existence, so sure as the confrontation had place, being assured of finding in the answer, or even the silence of the defendant, sufficient proof,—he would exempt himself in the first instance, and ultimately the defendant, from the expense attendant on the proof, supposing it possible, of all those negatives. But the lawyers, with whose interest security on the part of suitors and clients is incompatible, have taken care that there shall not be any such assurance. In the darkness in which he is left to grope his way, the plaintiff, under the guidance of a professional adviser, whose profit increases with the burthen, under the impossibility of learning an opinion and a will which he to whom it belongs to form it has not yet formed, loads himself, if he be able, with the whole of the vexation and expense of which it is supposed that by any possibility it can happen to it to be pronounced necessary. If, sinking under the burthen, he fail in his conjecture concerning that which it has been rendered impossible for him to know, be the justice of his case ever so clear, he loses it.
It is the interest of the fraternity, that the traps thus laid on the plaintiff’s side for catching plaintiffs should be multiplied to infinity, that, on the defendant’s side, a man, be the badness of his cause ever so clear, may be encouraged to defend himself: accordingly, it was a maxim of Lord Chancellor Rosslyn, that no cause ought ever to be given up as desperate.
But men are thus discouraged from commencing a cause: and unless a cause be begun, how can it be continued? No such thing: if, setting aside the traps, the plaintiff’s cause be good, he is assured that it is good:—but nothing is said of the traps—they do not come till afterwards.
A legislative draughtsman who understood his business, would, in penning the substantive part of a new law, make due provision for the solution of these difficulties in procedure:—but as the system is constituted, it is not the interest of any legislative draughtsman to understand the business:—and if he did understand the business, what he would understand still better is,—that so long as the reproach of incapacity can be avoided, it is his interest to multiply and not to diminish the number of all such difficulties. Nor, after all, does the nature of the mischief admit of anything like a co-extensive remedy, other than the restoration of that feature of primitive justice—confrontation of the parties at the outset coram judice—which a man at the head of the law, had he as many hands as Briareus, would cut them all off sooner than he would co-operate in, or even be a witness to the restoration of.
[* ]In the English books of practice, matter relative to the onus probandi is here and there to be found, but no chapter or section is to be found with any such title at the head of it. It is, however, a sort of matter which on one occasion or other is not unfrequently coming into view.
[* ]See Peake, p. 272.