Front Page Titles (by Subject) CHAPTER XXXI.: FALSE THEORY OF EVIDENCE (GILBERT'S * )—ITS FOUNDATION:—PRECEDENCE GIVEN TO WRITTEN BEFORE UNWRITTEN. - The Works of Jeremy Bentham, vol. 6
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CHAPTER XXXI.: FALSE THEORY OF EVIDENCE (GILBERT’S * )—ITS FOUNDATION:—PRECEDENCE GIVEN TO WRITTEN BEFORE UNWRITTEN. - 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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FALSE THEORY OF EVIDENCE (GILBERT’S* )—ITS FOUNDATION:—PRECEDENCE GIVEN TO WRITTEN BEFORE UNWRITTEN.
Errors of this Theory—their efficient cause.
By inapposite arrangement, how vast is the mischief—by apposite arrangement, how great the service—that may be rendered to useful science!
From incorrect or incomplete conception in the first place, from incorrect judgment in the next place, inappropriate nomenclature, and the classification which is included (for in proportion to the extent of the collection of things which it is employed to designate, nomenclature is classification,) receive their existence: and, once established, give permanence to the same undesirable result from which they received existence.
In the books of English lawyers, when the topic of evidence comes upon the carpet, and in particular in those books of which evidence constitutes the sole topic, the first division made of the subject is the division of evidence into written and unwritten:—written occupying the first place:—and of the nature of this sort of evidence, description being given, such as it is, before anything is said on the subject of unwritten evidence.
For the mass to which the appellation of unwritten is allotted, is reserved everything which in the course of this work has been said on the subject of trustworthiness and untrustworthiness, including whatsoever has been done and established in the way of exclusion—that field on which the fraternity of lawyers has, so much at its ease, and with such demonstrations of vigour and delight, been seen disporting itself.
The wise and the foolish, the just and the unjust, the interested and the uninterested, the man of untainted and the man of tainted character,—thus various are the descriptions of persons out of whose mouth it may happen to evidence to have issued, according to a discovery which is made—at what period? by and not before the time at which everything has been said which required to be said on the subject of written evidence.
Of the persons from whose minds evidence not committed to writing, or whatsoever else is meant to be distinguished by the word unwritten, has been delivered,—such and such are the different characters and descriptions. Be it so:—such, in consideration of these several characters, is the disposition that has been made by English law in relation to their respective testimonies. Alas! it is but too true.
But the persons from whose minds the sort of evidence called written is delivered, what sort of persons are they?—their evidence, is it not susceptible of trustworthiness and untrustworthiness?—their character and dispositions—of wisdom and weakness, of probity and improbity?—their respective situations, are they not respectively capable of standing, unreached by, or exposed to, the action of sinister interest?
Or is it that the beings, of whose evidence written evidence is composed, are one class of beings—those of whose evidence unwritten evidence is composed, another and a different class of beings;—the authors of written evidence, as the place allotted to them imports, being creatures of a superior class, the authors of unwritten evidence of an inferior class?
By a conception implying a judgment passed on the affirmative side of the above question, does the first step taken in this line of arrangement appear to have been determined:—and of this first step such was the importance, and such the delight with which it was accompanied, that by this first step all those that followed it were determined; and whither they led—into what a labyrinth of error and absurdity the mind by which this course was thus pursued would be conducted—was a consideration for which no sort of attention had been reserved.
In the demesne of written evidence, the first field you come to is that in which the produce has the lords of this vineyard themselves for its authors; viz. that sort of written evidence, that super-sacred sort of evidence, distinguished by the appellation of a record.
Of this super-sacred and super-human class of persons, one attribute is the being exempt from all human weakness. In the king, whom the pious commentator Blackstone has pourtrayed in such glowing colours as supreme, all-perfect, immortal, and omnipresent, they behold their God: in themselves the most perfect, the most exalted, and the most justly exalted of his creatures. From this perfection on the part of the workman, follows the perfection of the work:—falsehood is a property of which no assertion flowing from such a source is susceptible. False to any degree in itself, by passing through such a medium, the assertion, whatsoever it be, is rendered true. Truth and falsehood, and by their means, right and wrong follow “the finger of the law.” Falsehood, if not, literally and strictly speaking, converted into truth, is acted upon, treated, and in every respect acted upon as if it were:—it gives rise to action on the part of the authors of all justice, and by their irresistible hand it is protected from that contradiction which it might otherwise be exposed to suffer at the hands of the profane.
Of those truths which it is the function of mathematical science to usher into the world, it is a common property not to be susceptible of contradiction: demonstration is the appellation given to that species of discourse by which a truth of this class is shown to be what it is: a diagram is a sort of figure or picture of graphical exhibition, of visible sign, or figured representation, which, for the purpose of giving facility to such demonstration, is employed by that branch of mathematical science in which the circumstance of figure is taken into account.
According to the definition given of it by Lord Chief-Baron Gilbert, a record is accordingly a diagram for the demonstration of right. The problem proposed by him to himself was—to prove all English judges, whose station is in Westminster Hall, to be infallible. Such as has here been seen is the medium of proof—such the demonstration: never was Q. E. D. written with more perfect satisfaction by the master geometrician, or received with more perfect acquiescence and admiration by his pupils.
And this diagram for the demonstration of right, what is it? The constantly filled receptacle of falsehoods, not only among the most pernicious, but among the most notorious that the repositories of profane discourse, taking the world throughout, was ever known to furnish—falsehoods which, though acted on as if they were truths, are not altogether without exultation recognised in their character of falsehoods, and under the name of fictions, confessed and delineated by Blackstone.
Of the principle of arrangement here in question, such has been the object in view—such in too great a degree the effect: to procure for the most degrading vice a species of adoration beyond what could ever be due, if bestowed upon the sublimest virtue.
In a preceding part of this work, the suggestion has been already hazarded, that official persons in general, and judicial persons in particular, are but men, made of the same mould as other men: men in whose instance, for the purpose of evidence and judicature, as for other purposes, trustworthiness is to be examined into by the same lights, and determined by the same tests, as in the instance of men of lower degree, or of no degree at all.
Whether for the formation of a right judgment on a subject of this kind, the course pointed out by the suggestion so hazarded as above, or that which has been taken by the demonstration just reported, be the more promising, is among the questions on which it will rest with the reader to decide.
To some readers, the notion by which fallibility is ascribed to the only class of persons, of secular persons at least, from whose pens, not to speak of tongues, falsehood in a larger proportion than truth, and never without yielding profit in return, is wont to flow, will be apt to appear speculative—an epithet in use among official persons for the condemnation of whatsoever proposition is too adverse to private interest not to be hated, and at the same time too manifestly true to be denied.
From this highest level in the scale of authority and excellence and correspondent trustworthiness, Gilbert descends successively to what he calls the inferior degrees; viz. public written evidence of an inferior nature to matter of record, private written evidence, and unwritten evidence.
Errors of this Theory—their final cause.
Demand is the parent of supply. Of the reputation of trustworthiness, of verity and veracity, the value is felt and recognised by the most stupid. Puffed off by them upon mankind as true, it was their interest that this compost of lies should be taken and accepted as true, the more thoroughly and palpably it was seen and felt by them to be tainted with the opposite vice.
Throw the business into confusion—was the order which, in a moment of agony, the vexation under which he had had to struggle extorted from a distinguished servant of the public, whose services have been so universally felt, and with the help of lawyer’s quibbles, and the barbarism, and proportion-confounding law of forfeiture, so perfidiously and ungenerously rejected.
To throw and keep in confusion had been the line of policy pursued by his crafty opponents, who, with so much power to act, had little need to speak or write, and who, if they did speak, were too powerful or too fortunate to be betrayed.
To keep the whole subject involved for ever in confusion, the very thickest confusion that can be manufactured, has been the line of policy so diligently and successfully pursued by the fraternity of lawyers throughout the whole field of law;—throughout the whole of that vast field, and nowhere with more success than in this most important and commanding part of it.
For the creation and preservation of confusion, what more effectual instrument could be chosen, than a system of classification and correspondent nomenclature, in which a subject was undertaken to be taught before any of its properties had been brought to view;—parts and particulars, of the most opposite nature and tendency being lumped together and perpetually confounded under one name, whilst the same things were introduced under two different names?
Fortunate is the man in whose favour art and nature, exertion and carelessness, ingenuity and stupidity, concur and conspire towards the production of the same results!
In this part as in others of the field of law, thus happy has been the situation and position of the fraternity of lawyers. In default of opposite interest, imbecility would of itself have sufficed to fill the paths of law and legislation with weeds and thorns; and of the facility thus afforded by nature, every advantage has been taken that could be taken by the most consummate art:—such being the direction given to everything to which any such appellation as industry, or diligence, or art, or labour, or ingenuity, can be applied: and by these means have non-lawyers been rendered unable in general to unravel the mysteries in which Judge and Co. have involved all legal proceedings, under cover of which they have with so much success pursued their own peculiar and sinister interests.
[* ]For account of the manner in which Lord Chief-Baron Gilbert has treated the subject of Evidence, see Appendix C.