Front Page Titles (by Subject) CHAPTER XXX.: EVIDENCE IN RELATION TO PARTICULAR FACTS AND PLEADINGS UNDER TECHNICAL PROCLDURE. - The Works of Jeremy Bentham, vol. 6
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CHAPTER XXX.: EVIDENCE IN RELATION TO PARTICULAR FACTS AND PLEADINGS UNDER TECHNICAL PROCLDURE. - 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 IN RELATION TO PARTICULAR FACTS AND PLEADINGS UNDER TECHNICAL PROCLDURE.
“Of evidence in general, as regulated by the pleadings and other proceedings in a cause.” Such is the title which, in the most comprehensive as well as instructive of all works, that under the English system of technical procedure have as yet appeared on the subject of evidence, stands prefixed to the second and rather more copious of the two parts between which the matter of it is divided.
Such is the description therein given of the sort of matter which, for the reasons that have just been given it has been thought proper to discard out of this work, in which everything belonging to evidence in general, was meant and endeavoured to be brought under review.
In the instance of the present work, for the omission of all such particular matter, the reasons above assigned will, it is supposed, not be found insufficient.
In the instance of that professional and learned work, the necessity of giving insertion to all such particulars as are there inserted, appears upon the face of the description given of it as above.
Of the sort of matter thus discarded, considering that its title to be considered as matter belonging to the subject of a book on the law of evidence cannot be wholly set aside, it may be some satisfaction to the reader, especially to the professional reader, to see some account given—some conception, how general and loose soever afforded, on the principles corresponding to the principles adopted in the course of the present work.
In the form of opinions and propositions, some of the most striking conclusions shall accordingly, in this place, be briefly brought to view:—
1. Of this matter of detail, a great part is of such a nature as, under a system properly constituted and consistently conformed to, would never have found a place in any work on the law of evidence: it either would not have found under any title a place in any book of law, or if under any title, not under any such title as that of evidence.
2. Of the matter contained in this book, which has any reference to the subject of evidence, the whole is furnished by no other sorts of suits or causes, than those in the course of which jury-trial has place.
3. On these occasions, in so far as the question discussed is a question relating to evidence, it is a question concerning circumstantial evidence;—i. e. whether, in relation to a fact of such or such a description, considered in the character of a principal fact, a fact of this or that other description shall, in the character of an evidentiary fact, be admitted, and if admitted, be considered as conclusive.
4. The decisions on any such question reported,—the instances in which any question of any such nature has been suffered to be discussed, are so many instances of usurpation recorded:—of usurpation made by the judges upon the constitutionally proper, and never directly contested, however continually and covertly invaded province of the jury, in their quality of judges of the matter of fact.
With few, if any, exceptions, the matter contained in that volume would be found referable to one or other of the heads following:—
1. A matter belonging to the substantive branch of law, viz. some point which exists in the shape of real, i. e. statute law.
2. A question concerning the import and effect to be given to this or that clause, in this or that instrument of contract in common use: an instrument the terms of which constitute, as between all persons interested in it, so much of the matter of statute law.
In both these instances, on one side or the other, this or that portion of discourse is proposed as proper to be applied to the text of the statute, in such manner as to operate in explanation, or, in some way or other, under the notion of explanation, in alteration of it:—in alteration; viz. by producing the effect producible by addition to, or defalcation from, or substitution in relation to such or such portion of the matter contained in it.
3. A question belonging to the same branch of law, but to some part of it which has no other than an imaginary existence, being of the nature of jurisprudential, alias judge-made, alias unwritten, alias common law.
4. A question belonging to the law of procedure:—of which sort is every question concerning the onus probandi as above described, and any question concerning the sort of evidence requisite for the support of an allegation made to this or that particular effect, in and by this or that one of the written instruments in which are contained the pleadings in the cause.
5. A question concerning circumstantial evidence, i. e. whether, in relation to this or that particular fact in the character of a principal fact, such or such matter of fact shall or shall not be admitted in the character of an evidentiary fact. If admitted, the evidence afforded by it is generally considered as conclusive.
In every one of these instances, the deplorable state of the law, considered in any such character as a rule of action, having for its end and object the welfare of the individuals whose fate is governed by it, may be seen exemplified.
1. As to statute law:—what there is of it, is a mere shapeless mass; bulky in its form, and at the same time scanty in its matter:—consisting of no more than a collection of disjointed materials, laid in patches upon a groundwork consisting of imaginary law;—of law, the words, and consequently the substance and import of which, are left to be on each occasion shot at by imagination and conjecture.
Supposing the whole to possess the form and extent required, digested in some such way as every work is which is really intended to be understood, under a connected assemblage of titles and sub-titles,—on this supposition, as often as for the purpose of receiving explanation, or, under the notion of explanation, alteration at the hand of the judicial authority, the words of such explanation or alteration, instead of being either left to drop into oblivion, or settled between a self-appointed note-taker and the bookseller, his customer or employer, would, at the requisition of the legislature, be settled, and applied to the text, in the manner of amendments made at present to a bill, by the judge or judges by whom the decision was pronounced; and being notified to the two Houses of Parliament, might then, from the tacit and implied consent of the two authorities, receive that binding force which at present they receive at the hands of the two estates, viz. the note-taker and bookseller, as above.
2. As to jurisprudential, alias judge-made law, alias common-law:—neither on this nor on any other occasion, can it without risk of producing misconception be brought to view, if brought to view in any other light, than that of,—from beginning to end a monstrous system of absurdity and imposture, of which it is impossible for any man to speak properly without self-contradiction, or an enlightened lover of mankind to think of without melancholy or without shame.
On no occasion whatsoever, can any portion of it be spoken of without being spoken of as having such or such an assemblage of determinate words belonging to it. But in no part of it has it any such determinate words belonging to it. By the individual who, on any occasion or for any purpose, has need to speak of it—client, suitor, attorney, advocate, judge—to the minutest fragment which on that occasion happens to come in question, a set of words are assigned at a venture,—one advocate on one side saying that such and such ought to be the assemblage of words—the advocate on the other side, such and such other words,—one judge, in like manner, one set—another judge the same or another set,—no such advocate, nor any such judge, for five minutes together, after the time of their dropping out of his mouth, troubling himself to remember what they were;—the note-taker, if any such self-appointed officer happen to be present, neglecting or noticing them, conceiving them aright, or misconceiving them,—setting down upon his paper those same words, or any others, as it may happen, and so forwarding them or not forwarding them to the bookseller or the printer.
And thus it is that on the present, as on every other occasion, a nominal existence is given to the portion in question of the non-entity to the designation of which the sacred name of law is prostituted, and which, for the affliction of mankind, has been endowed with the force of law,—that ideally existing, yet but too really acting power, by which the purposes of oppression and extortion and depredation, and, in every other assignable shape, injustice, are so correctly and admirably fulfilled; while, to every honest and useful purpose, it possesses that sort of efficiency which from a non-entity ought in reason to be expected.
3. As to the law of procedure, in whatsoever shape it happens, in the part in question, to be existing,—whether in the real shape of statute, or the imaginary shape:—of the matter referable to this head, a large exemplification is afforded by that in relation to which the question is, on which of the two contending parties the onus probandi,—the obligation of exhibiting proof,—shall be imposed.