Front Page Titles (by Subject) CHAPTER XXIX.: EVIDENCE CONSIDERED IN ITS RELATION TO THIS OR THAT FACT IN PARTICULAR—WHY DISCARDED FROM THIS WORK. - The Works of Jeremy Bentham, vol. 6
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CHAPTER XXIX.: EVIDENCE CONSIDERED IN ITS RELATION TO THIS OR THAT FACT IN PARTICULAR—WHY DISCARDED FROM THIS WORK. - 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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EVIDENCE CONSIDERED IN ITS RELATION TO THIS OR THAT FACT IN PARTICULAR—WHY DISCARDED FROM THIS WORK.
Considered in its relation to this or that particular matter of fact,—whether it be individual fact or species of fact,—evidence, it will upon review be manifest, has not been comprised in the field of inquiry marked out in and for the present work.
On further consideration, a proposition for which the assent of the reader may not unreasonably be expected, seems to be, that when considered in any such narrow point of view, the consideration belongs not properly—notwithstanding the apparent contradiction in terms—to any work, purporting on the face of it and by the title of it, to be a work on evidence—or even, to come home to the point, a work having for its object the law of evidence.
On every occasion on which any matter of fact comes in question, so does whatsoever evidence is considered as bearing relation to it: so, therefore, does evidence considered in its relation to that same matter of fact.
But from this circumstance, no occasion has ever yet been taken to consider every work in which matters of fact are brought in question as a work on evidence:—to consider the word evidence as constituting of itself a proper title to such work, or as fit so much as to constitute an elementary portion of any such title.
If so, not only all political history, but all religious history, all natural history, and even all natural philosophy, all physics, including all mathematics—for mathematical propositions, in so far as they have any truth, are but physical propositions of the utmost amplitude—would present each a title to a place in a work on evidence. True (it may perhaps be said,) if evidence, without any word of limitation disjunctive of the class of facts which were meant to be the subject of it, were the appellative in question. But prefix to it any such word as legal—or say, law of evidence—it will thereby be understood at once, that facts susceptible of a legal operation—facts capable of producing legal effects, are the only sorts of facts with relation to which, in a work so entitled, evidence is about to be considered.
Admitted: but, on the other hand, what has already been shown is, that there is scarcely that imaginable species of fact, to which it may not happen to be comprised within the class of legally operative facts.
All this while, a consideration that can scarcely fail to have already presented itself to the mind of every professional reader, is, that of the matter of this or that book, purporting by its title to be a book on the law of evidence, a full moiety is of such a description, that what is there spoken of under the name of evidence, bears in every instance relation to this or that particular fact; and, at the same time, that no mention of such matter or reference to it is included in anything, that in treating of the subject of evidence in general has in the course of the present work been brought to view.
Matter of this sort, it may be asked,—in a book purporting by its title to be a work on the law of evidence,—has there been any impropriety in the insertion of it?—to go further, had no mention been made of such matter in a book thus entitled,—could it have been regarded otherwise than as incomplete?
In justice, the answer, it should seem, cannot be otherwise than in the negative—and the reason is—that where, in so far as the evidence in question is in its application limited not only to such facts as come ordinarily under the appellation of legally operative facts, but to the dispositions that appear as yet to have been made by the law, as it now stands, in relation to such facts, the space within which the matter of such a work is capable of being compressed will be seen to be altogether of very moderate extent; so moderate, that if, in a work professing to be an all-comprehensive one on the subject of evidence, matter of this description were omitted, the work, especially when considered with relation to the sort of information requisite for the purpose of the professional reader, might justly be taxed with being incomplete.
But in a work designed for the use of professional men, while thus, for the sake of completeness, the title to admission presented by matter of this sort cannot but be confessed,—at the same time, for the sake of clearness and correctness of conception, neither can the demand which appears to present itself for a clear and strong line of distinction between the two divisions, in themselves so dissimilar, of a subject, which by its customary denomination is declared in both cases to be the same, be looked upon, it should seem, as fit to be left unsatisfied.
In Peake’s Treatise on the Law of Evidence, this line has accordingly been drawn; and in that work, as it should seem, for the first time—for neither in the work of Lord Chief-Baron Gilbert on Evidence alone, nor in the work of Mr. Justice Buller on the Law of Evidence considered in the law of nisi prius! (nisi prius! what an appellative)—in neither of these masses of technical jargon is any trace of it to be found.
By Mr. Peake, in whose useful compendium, wretched as it is in its own nature, the matter appears to much greater advantage than in either of these others, so strongly, prominently, and decidedly drawn has been this line, that before that part, which in no other than a practical and incidental point of view belongs as above to the subject of evidence, had at all been touched upon by him, that part in which, if the view here given of it be correct, the whole of the matter that, strictly speaking, belongs to the subject of evidence is contained, had for some time been published.
“Evidence in general, as regulated by the pleadings and other proceedings in a cause,” is the title employed by the learned author in designation of the matter comprised in the second part of his work. Whether by that title, or by the title prefixed to the present chapter, the clearest and most correct notion will be given of this part of the subject matter of the law of evidence as it stands in highest English practice, is more than I can take upon me to say. On the present occasion, the reason of the preference given to it, for the purpose of this work, is, that in and by it, is rendered more distinctly present the consideration by which the exclusion of it from the present work was determined;—for setting aside all reference to the pleadings and other proceedings belonging to this or that technical system of procedure, the circumstance of the reference all along made to particular facts considered in the character of facts, exercising their legally operative force on such or such particular occasions—on the occasion, and in support of or opposition to such or such particular demands, would have sufficed to insure the exclusion of all matter of this description from the pale of the present work.
Suppose that instead of the law of England, the law of any other country. Scotland (suppose) or France, had been the system of actual law taken in the course of the present work as the standard of reference. The evidence, in so far as regulated by the pleadings and other proceedings in a cause would in that case have assuredly been found to wear a very different aspect from that which it does under the law of England: yet whatsoever matter is here omitted out of a work, looking throughout the whole course of it, as does the present, principally though not exclusively to the law of England, would equally have been excluded from this work, had the system of actual law principally regarded in it, been either of those two other systems.