Front Page Titles (by Subject) SECTION X.: AGENDA—COURSE PROPER TO BE TAKEN ON THE OCCASION OF INSOLVENCY. - The Works of Jeremy Bentham, vol. 6
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SECTION X.: AGENDA—COURSE PROPER TO BE TAKEN ON THE OCCASION OF INSOLVENCY. - 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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AGENDA—COURSE PROPER TO BE TAKEN ON THE OCCASION OF INSOLVENCY.
A few points of subordinate account excepted, so obvious is the course which in this case is pointed out by common sense, that the imputation of trifling seems to impend over the hand that should set about delineating it.
So wide from this most obvious course, so tortuous and complicated, and in a word so palpably weak and foolish, in any other character than that of a system of oppression and depredation, is the system set on foot and all along carried on by and for the benefit of Judge and Co., that unless their sinister interest be admitted to have been the only end to which it was really directed, it will appear to have had for its authors, not men, but some inferior race of beings. But of the determination to adhere in all points to the technical system—to consider the abuses of which it is composed as first principles, the propriety of which, lest it should be found to admit of doubt, is not so much as to be taken for the subject of consideration;—of the determination to consider every path of wisdom, or rather of common honesty and common sense, as closed and sealed up for ever,—the consequence is, that in their generation, let men on other points be ever so wise, some track or other of folly is the only track in which it is left to them to tread.
On the part of the commander of an invading or defending army, suppose a fixed determination never from any person, on any occasion, to receive any sort of intelligence:—on the part of such a military commander, the system of tactics would be an exact counterpart of the actual system of judicial procedure:—the aptitude of such commander for military command would be the exact counterpart of the aptitude for judicature manifested on this occasion by English judges.
For satisfaction to the creditor under existing law, what is the provision made? Nothing can be more inadequate—nothing can be more complicated. And when to the creditor it is made, matters are so ordered that it is frequently at the expense of some person or persons from whom it is not due—some friend or friends of the debtor—that it is made, and not at the expense of the only person from whom it is due.
But in Judge and Co. may be seen the great firm to which satisfaction in every instance, by the power of that same great confraternity, is in the first place always made.
In the case of insolvency, punishment ought to be applied to him, and him alone, on whose part there has been blame. Various, and by no means more difficult to distinguish in this than in other cases, are the shapes and degrees in which blame on the part of an insolvent, where there is any, may be seen exhibiting itself.
To all these distinctions, under the guidance of Judge and Co., existing Law inexorably shuts her eyes. Why? Because, as so often observed, to make these distinctions it would be necessary for the judge to hear evidence,—to hear evidence from the best source, in the best shape, and at the properest time;—against all which he sits resolved.
Of this wilful deafness, what is the consequence? Everything that is most contrary to common honesty and common sense.
Woe to the blameless child of misfortune! Thrown into prison for debt, he will lead a life of uninterrupted misery, from which, bating accidents, no relief is found but in death.
Welcome to the swindler!—to the man chosen by the judge, who, instead of restoring to his creditors the property of which he has defrauded them, carries it with him to the house of entertainment which is kept open to money so acquired! His guilt is the deeper, the greater the quantity of other people’s money which he has contrived to bring with him into that place;—but the greater the quantity of that money, the more comfortable will his condition and situation be rendered in that place.
The reward thus heaped together in the lap of the guilty debtor—the punishment thus heaped upon the head of the blameless debtor—is not all. The measure of punishment would in the eyes of these legislators have been incomplete, if the injured creditor had not come in for a share of it. While the debtor, instead of being compelled to give up what he has in his power, if anything, for the satisfaction of his creditor, is either rioting or starving in jail—(who knows or who cares which?)—the injured creditor is fined 4d. per day for keeping him there: and he must submit to this additional loss, or forego whatsoever chance there may be of recovering any part of his original loss.
If we consider what ought to be the practice, we shall find, that in the case of debt, the first point on each occasion to be ascertained is—what on the part of the alleged debtor is the real cause, of the resistance made by him to the demand, and thence of the suit. Is it any real difference of opinion as to the question of right, which has any share in the production of that resistance? or does it arise from no other cause than a present unwillingness to part with the money, or a present inability to provide it?
The next point to be considered is—Solvency on the part of the defendant debtor,—is it out of doubt? If yes, then any vexation in the shape of confinement, whether in a prison, a spunging-house, or in the custody, real or fictitious, of sureties under the name of bail, is unnecessary.
For ascertaining these points, a few minutes—a question or two put by the parties to each other in the presence of the judge—would suffice.
Whether solvent or insolvent, the next point to be provided for is, as far as possible, the satisfaction of the creditor. But satisfaction at whose expense? At the expense of the debtor himself, and not of any other person, those excepted, such as his wife and children, whose subsistence is dependent upon his.
Next to satisfaction, in the event of insolvency—i. e. deficiency in respect of the quantum of such satisfaction—comes punishment:—But in what case?—in a case where, on the part of the insolvent, there has been no blame? To a question of this sort, so far from finding it possible to answer yes, common sense cannot for shame answer simply and without apology in the negative.
And note, that as on other occasions, so on this occasion, every infliction, in respect of whatsoever evil is produced by it, which might be avoided and is not avoided, may be, and ought to be, placed to the account of punishment.
FALSE THEORY OF EVIDENCE—(GILBERT’S.)
“The Theory of Evidence” is the subject which, in his work entitled “The Law of Evidence,” Lord Chief-Baron Gilbert undertook to make his pupils understand. The theory? Yes, “the true theory.” And in pursuit of so laudable a design, the course taken by him,—what was it? To establish in the first place, to serve as a groundwork for this whole theory, a division which was to be all-comprehensive—a division in one or other of the two branches of which the whole subject-matter of it was to be found comprised.
Of real evidence, so called with reference to its source, and in contradistinction to personal evidence, he says nothing:—to his conception, things considered in the character of sources of evidence, capable of furnishing it, of presenting it to the senses of the judge, through or even without the intervention of persons and the evidence of persons, appear not ever to have presented themselves.
Makeshift evidence in its various modifications, preappointed evidence in its various modifications, in point of natural and usual trustworthiness—the first-mentioned below, the other above the ordinary standard,—as little, to a mind like Gilbert’s, could any such objects, any such distinctions, have presented themselves.
Of the distinction between genuineness and verity—between the genuineness of a written statement and the verity of the several facts or supposed facts stated in it,—as little was the faculty of forming to himself anything like a clear conception within his reach.
That on this part of the field of law there should be any work to do for the legislator, calling by the nature of it for the hand of the legislator, was a conception which either never presented itself to his mind, or, if so be that it ever presented itself to his mind, could not but have been rejected with abhorrence.
That on any such subject as that of evidence—that in any part of the vast and important demesne of evidence, anything in the way of general rules should be the work of the only hand which they will venture to speak of in direct terms as competent to make law,—that it should be the work of any hand but that of a judge, that is, of a functionary to whom adequate means of information, legal power, legitimate interest, and thence proper inclination,—everything whatsoever that is necessary to the proper execution of this work, as of every work, is wanting,—of a sort of functionary with whom no arrangement good or bad can originate, who on no part of the field can take so much as the first step unless called upon by this or that individual in the character of a suitor, and who to the end of time would remain motionless as a puppet, in whom the very faculty of motion depends altogether upon external agency—motionless as the puppet-king in the showman’s box, but for some unhappy or dishonest person, who, led by necessity, in the character of plaintiff repairs to the shop, and obtains the necessary parchment, the purchase of which gives to the cause, and to the authority of the judge who is to try it, that birth and life which is given to the puppet-king by the showman’s touch of the animating wire,—is an idea which either never arose in his mind, or was instantly rejected by him.
To put aside the hand of the legislature—of that body by which the people are represented—to put aside its authority, to discountenance its interference, to misconstrue and construe away its laws—to present their own bubbles and crudities as so many advantageous substitutes,—has been the constant course of those creatures of the crown, of whose caste he was so worthy a representative. They call for the assistance of the legislator’s hand! No:—they know better things: they make quicker work. By half-a-dozen threads spun out of their own bowles, as—“Christianity is part and parcel of the law of England,”—ten words exactly told,—they will make you a whole system of penal laws applicable at pleasure to the end of time, to the purposes of every Judge to whom an Attorney-general has made his bow.
Out of words in number one, two, or four—policy, sound policy, or policy of the law—they will make you a whole system of political economy or anything else, in despite of Adam Smith, on whose unlearned speculations men in their high situations disdain to bestow a glance.
In the book entitled “The Law of Nisi Prius,” Judge Buller, the favourite pupil of Lord Mansfield, touched, of course, on the subject of evidence; and in the compass of nine rules, with the cases given under each for illustration, undertook to compress the whole law of evidence. Written in the spirit of the Lord Chief-Baron, they constituted a body of instruction altogether worthy of the source from which they had been derived. But not to overload with rubbish a sketch which, in its first design, was to have been throughout highly compressed, a view of these rules is among the matters which must here be laid aside.
“The design of the law,” says Gilbert, “is to cause a rigid demonstration in matters of right; and there can be no demonstration of a fact without the best evidence that the nature of the thing is capable of;—less evidence doth create but opinion and surmise, and does not leave a man the entire satisfaction that arises from demonstration.” p. 3.
“Records . . . . . are the memorials of the legislature, and of the king’s courts of justice . . . . . they are the proper diagrams for the demonstration of right.” p. 5.
“If the question be, whether certain land be the land of J. S. or J. N., and a record be produced whereby the land appears to be transferred from J. S. to J. N.,—this is called knowledge by demonstration.” p. 2.
“. . . . . Report from others . . . . is one step further from demonstration, which is founded upon the view of our own senses; and yet there is that faith and credit to be given to the honesty and integrity of credible and disinterested witnesses attesting any fact under the solemnities and obligation of religion, and the dangers and penalties of perjury, that the mind equally acquiesces therein as on a knowledge by demonstration.” p. 3.
Report from others is one step further from demonstration!—as if a record, proof from which is according to him demonstration itself, were anything but a report from others! Of this miraculous receptacle, according to his conception of it, one property (it thus appears) then is,—the being at a distance from itself.
Two questions which he confounds at the very outset, and is never tired of confounding, are the question of authenticity and the question of verity—the question concerning the authenticity of a script, and the question concerning the verity of the assertion contained in it.
As to the question of verity, the constant falsity of a large—and what makes the mischief, not always distinguishable—proportion of the assertions contained in a record (the instrument so styled in the Westminster-Hall Courts,) is confessed and delineated even by Blackstone, and is such as ought to be, if it be not already, proverbial.
As to authenticity, neither can even this property be with strict truth ascribed to it.
Take the judgment itself which is there pronounced:—It presents itself in the character of a written discourse, having for its authors the judges of a certain judicatory: and as being expressive of an act of the intellectual faculty, followed by a corresponding act of the volitional faculty, concerning the allowance or disallowance of the claim or demand preferred by the plaintiff in the cause:—having these men for its authors, and expressive of that which, on the occasion in question, was the state of their minds, a state into which they had been respectively brought by the reception given to the allegations and proofs adduced on behalf of the parties on both sides, or at least on one side.
Such, as far as concerns the question of authenticity, is the account given of the matter by and on the face of the record. How stands it in point of fact? That unless by mere accident, the judges do not any of them know anything about the judgment which is thus uttered and put off as theirs. By whose hand or under whose order it is penned, even this, unless by mere accident, is unknown to them. When the record which ought to be made up, and for the making up of which some person or other in the character of suitor and client is made to pay, is really made up, which is not always the case, it is by some attorney’s clerk,* under directions from his master: but even this is an event which does not always take place.†
A decree—for this is the name which in an equity court is given to the sort of instrument, which in a common-law court is called a judgment—(and these are the sorts of distinctions the momentary oblivion of which would to the eye of a learned censor present itself as a mark of unpardonable ignorance)—an equity decree is really the expression of a will actually formed and declared by the judge whose name it bears—the mechanical contrivance upon the strength of which an article so expensive as human reason, especially if it be to be furnished by a judicial mind, is dispensed with, not having yet been completely adopted in and applied to the business of a court of equity.
A decree is therefore authentic, and thus far, at any rate, the matter of it is true. For this, or for some other equally good reason, it is not, by the judges of the common-law courts, recognised in the character of a record:—it is no such “diagram”—it contains no such “demonstration of right.”
According to Gilbert himself, it is not a record, or any part of the record: nor should the difference naturally have been unknown to him, he being Chief Judge of that amphibious judicatory, the Court of Exchequer, which is both a common-law court and an equity court—a court of record, and a court not of record—and which in this its inferior capacity, ties up its own hands, stopping and overruling the proceedings carried on under its eye in its superior character of a court of record, viz. a common-law court.
After dispatching the testimonies of the highest rank, the testimonies that are of record,—the first sort of testimonies, says he, that are not of record, are the proceedings of the Court of Chancery. “The reason why the proceedings in Chancery, and the rolls of the court (in which are contained the decree) are not records, is this—because they are not the precedents of justice: for the proceedings in Chancery are founded only in the circumstances of each private case, and they cannot be rules to any other.” This from the Lord Chief-Baron himself, chief judge of a judicatory exercising the powers of the Court of Chancery! Had the hand from which it issued been an unlearned one, even though it had been a noble one, how petrifying would have been the taunts of ignorance which it would have drawn down upon itself from learned lips!
The decrees by which, in the court of which he was the Chief, sitting on the equity side of that court, he was overruling the judgments, the demonstrations of right pronounced on the common-law side of that same court, these overruling decrees not being of record, while the overruled judgments were of record,—what, according to the rules of evidence as laid down by himself, must have been the consequence? Records being put by him in the first place, as having “the first place in the discourses of probability,” (p. 5,) and matters not of record being with reference to records “matters of inferior nature,” (p. 5,)—and the two halves of his mind being in flat contradiction to each other,—the preference must, by the whole of it, have been given to the common-law half. By the common-law half, the right had been demonstrated to be in the plaintiff at common-law. By the equity half, it had been decreed to be in the plaintiff in equity—the same unhappy person to whose hard lot it had fallen to be defendant at common law, and now, together with his adversary or adversaries, to be hustled between the two sides of the court,—between the law half and the equity half of these the reverend deniers and vendors of law and equity;—for, the representation given by the equity half not being among the precedents of justice, his whole mind, not altogether without reason, refused to believe that representation to be true:—but of the two conflicting halves, the equity half being the stronger, while the opposite side was the more trustworthy, it was to the representation made by the stronger side that the effect was given by the whole, the weaker being left to comfort itself with the reflection, that though equity and power were on the other side, truth and demonstration, as well as law, were on its own side.
“To understand the true theory of evidence:”—such is the purpose for which, Gilbert states, it is necessary that the arrangement which he proceeds to give should be “considered.”
Testimony being all along employed as a word exactly synonymous to evidence—circumstantial evidence completely out of his mind, until, not by that name, but under the name of presumptions, at the end of his 246 pages, he comes to consider it.
Testimony he divides into “written” and “unwritten,”—written into “public and private,”—public into “records and matters of inferior nature.”
“Speaking of written and unwritten, in the first place,” says he, “we are to consider which of these two sorts of evidence is to be preferred in the scale of probability, when they stand in opposition to each other.—Cicero,” says he, “gives a handsome turn in favour of the unwritten evidence,” p. 4: whereupon comes the handsome turn: “But the balance of probability,” continues he, “is certainly on the other side,” p. 5: “therefore,” continues he again, “we shall begin with the written evidence; that has the first place in the discourses of probability.”
Under the head of public records, come the following sorts of evidence, ranged according to the intimation above given, in the order corresponding to their respective altitudes in the scale of probative force:—
In the first place, though without any separate title in large letters, come those records which, according to him, are the precedents of the demonstration of justice (p. 6.) and instruments of justice; i. e. the above-mentioned compounds or reservoirs of truths and lies undistinguishably shaken together, penned by nobody knows who, and kept under the orders, how seldom soever, if ever, actually subjected to the eyes of the judges of Westminster Hall. Then comes a score of other heads in the following order:—
1. Statutes, p. 9;—2. Copies of all other records under seal, and not under seal, p. 11;—3. Copies sworn, and office-copies, p. 17;—4. Records, recoveries, &c. p. 21;—5. Verdicts, evidence, p. 31;—6. Writs, p. 34;—7. Acts of parliament, p. 36;—8. Public matters not of record, chancery proceedings, p. 41;—9. Bills in chancery, p. 42;—10. Answers, p. 43;—11. Affidavits, p. 45;—12. Comparison of hands, p. 47;—13. Voluntary affidavits, p. 49;—14. Depositions, p. 52;—15. Decree, sentence in the spiritual court, p. 60;—16. Evidence, p. 61;—17. Of the proceedings in the spiritual court, p. 63;—18. Wills, p. 64.
19. The above being his list of sorts of public evidence that are records, next comes the head entitled “Of the public matters that are not records,” p. 67.
20. This dispatched, next comes in great letters, title, Deeds, p. 70, which, says he, is only private evidence between party and party.
Under this same head of private evidence, after title, Deeds, comes once more title, Wills, p. 91; then Deeds cancelled, p. 96; Bills of exchange, notes of acceptance, p. 99.
With this sub-title ends title, Written evidence. After all these comes, title, Witnesses p. 205; i. e. as he expresses it, “the under written (it should be unwritten) evidence, or the proofs from the mouths of witnesses.”
And now comes the only case, viz. that in which the testimony of the witness is delivered, in the shape denominated on the present occasion, by this teacher of the theory of evidence, unwritten—and on other occasions, by him and all other lawyers, parol evidence—in which it occurs to him that a witness is capable of standing exposed to the action of interest in such manner as to indicate the propriety of a head entitled “Witnesses interested,” p. 107.
In any such form as that of a bill, an answer, an affidavit, or a deposition—what had not entered into his conception was, that testimony should ever be exposed to the action of sinister interest. In all these several forms, testimony “is a record;” that is to say, “not a record:”—and a record being the diagram in and by which right is demonstrated, whatever assertion is happy enough to obtain admittance into any one of those receptacles of truth, becomes truth demonstrated.
Such being the arrangement, and such the nature and order of the matters comprised in it, observe now the reasoning on which it is grounded:—“Contracts reduced to writing” (says he, page 5) “are the most sedate and deliberate acts of the mind,” and so forth;—and “therefore” it is that with him “written evidence” has the first place “in the discourses of probability:” meaning, as it should seem, in discourses holden on the subject of the order of probability:—and therefore it is, that though “depositions,” as he himself observes (p. 3,) fall short, viz. in probative force, of examinations vivâ voce, yet in the scale of probative force he assigns to them a place higher than that assigned by him to unwritten evidence—alias parol evidence—alias evidence extracted by examination vivâ voce; as if depositions themselves were extracted by anything else but by examinations vivâ voce: and therefore it is, that putting affidavits which are not extracted by examination vivâ voce, before depositions which are, for a reason which, even according to his own account of it, applies only to contracts, amongst so many other things which are not contracts, he ranks affidavits before depositions.
In the same strain of anility, garrulity, narrow-mindedness, absurdity, perpetial misrepresentation, and indefatigable self-contradiction, runs the whole of this work, from which men are to understand the true theory of evidence.
Although as a whole, the whole of it taken together can scarcely be taken for the subject of serious study, without danger of insanity, it may however be labour not altogether thrown away, to dip into here and there a page—and any page may serve—for two purposes, and in two points of view:—
One is, that it may be seen to what a degree of debasement, even so late as the middle of the eighteenth century, it was possible for the human understanding to be brought down by the study of English law:—another is, that it may be seen by what sort of an understanding it is, that down to that late period, not to descend lower, a man was not disqualified from filling, even with the universal applause and admiration of the learned brotherhood, the highest situations.
Such is the work, which notwithstanding its never having “received the last corrections of its author,” (as if susceptibility of correction were among the properties of such a work,) is nevertheless, in the eyes of the author of a so much better work on the same subject,* so excellent, that so far as relates to this part of the law of evidence (viz. “the section on records,” of which a sample has been seen above,) “which may be considered as coeval with the law itself, it must form the basis of every subsequent work on the subject.”
Whether the expositor (meaning the Lord Chief-Baron) be not well suited to the subject, as well as whether the subject be not well suited to the expositor, the reader may now find himself in a condition in some measure to judge.
RATIONALE OF JUDICIAL EVIDENCE, SPECIALLY APPLIED TO ENGLISH PRACTICE.
(FIRST PRINTED IN 1827.)
The papers, from which the work now submitted to the public has been extracted, were written by Mr. Bentham at various times, from the year 1802 to 1812. They comprise a very minute exposition of his views on all the branches of the great subject of Judicial Evidence, intermixed with criticisms on the Law of Evidence as it is established in this country, and with incidental remarks on the state of that branch of law in most of the continental systems of jurisprudence.
Mr. Bentham’s speculations on Judicial Evidence have already been given to the world, in a more condensed form, by M. Dumont, of Geneva, in the “Traité des Preuves Judiciaires,” published in 1823: one of the most interesting among the important works founded on Mr. Bentham’s manuscripts, with which that “first of translators and rédacteurs,” as he has justly been termed, has enriched the library of the continental jurist. The strictures, however, on English law, which compose more than one-half of the present work, were judiciously omitted by M. Dumont, as not sufficiently interesting to a continental reader to compensate for the very considerable space which they would have occupied. To an English reader—to him at least who loves his country sufficiently well to desire that what is defective in her institutions should be amended, and, in order to its being amended, should be known—these criticisms will not be the least interesting portion of the work. As is usual in the critical and controversial part of Mr. Bentham’s writings, the manner is forcible and perspicuous. The occasional obscurity, of which his style is accused, but which in reality is almost confined to the more intricate of the theoretical discussions, is the less to be regretted, as the nature of the subject is of itself sufficient to render the work a sealed letter to those who read merely for amusement. They who really desire to possess useful knowledge do not grudge the trouble necessary to acquire it.
The task of the Editor has chiefly consisted in collating the manuscripts. Mr. Bentham had gone over the whole of the field several times, at intervals of some length from one another, with little reference on each occasion to what he had written on the subject at the former times. Hence, it was often found that the same topic had been treated two and even three times; and it became necessary for the Editor to determine, not only which of the manuscripts should supply the basis of the chapter, but likewise how great a portion of each of those which were laid aside might usefully be incorporated with that which was retained. The more recent of the manuscripts has in most cases been adopted as the groundwork, being generally that in which the subjects were treated most comprehensively and systematically; while the earlier ones often contained thoughts and illustrations of considerable value, with passages, and sometimes whole pages, written with great spirit and pungency. Where these could conveniently be substituted for the corresponding passages in the manuscript chosen as the basis of the work, the substitution has been made. Where this was thought inexpedient, either on account of the merit of the passages which would thus have been superseded, or because their omission would have broken the thread of the discussion, the Editor (not thinking himself justified in suppressing anything which appeared to him to be valuable in the original) has added the passage which was first written, instead of substituting it for that which was composed more recently. From this cause it may occasionally be found in perusing the work, that the same ideas have been introduced more than once, in different dresses. But the Editor hopes that this will never prove to be the case, except where either the merit of both passages, or the manner in which one of them was interwoven with the matter preceding and following it, constituted a sufficient motive for retaining both.
The plan of the work having been altered and enlarged at different times, and having ultimately extended to a much wider range of subjects than were included in the original design, it has not unfrequently happened that the same subject has been discussed incidentally in one book, which was afterwards treated directly in another. In some of these cases the incidental discussion has been omitted, as being no longer necessary; but in others, it contained important matter, which was not to be found in the direct and more methodical one, and which, from the plan on which the latter was composed, it was not found possible to introduce in it. In such cases, both discussions have usually been retained.
The work, as has been already observed, not having been written consecutively, but part at one time, and part at another, and having always been regarded by the author as an unfinished work, it has sometimes (though but rarely) occurred, that while one topic was treated several times over, another, of perhaps equal importance, was not treated at all. Such deficiencies it was the wish of Mr. Bentham that the Editor should endeavour to supply. In compliance with this wish, some cases of the exclusion of evidence in English law, which were not noticed by Mr. Bentham, have been stated and commented upon in the last chapter of the book on Makeshift Evidence, and in two chapters of the sixth part of the book on Exclusion.* He has likewise subjoined to some of the chapters in the latter book, a vindication of the doctrines which they contain, against the strictures of an able writer in the Edinburgh Review. A few miscellaneous notes are scattered here and there, but sparingly: nor could anything, except the distinctly expressed wish of the Author, have induced the Editor to think that any additions of his could enhance the value of a work on such a subject, and from such a hand.
For the distribution of the work in Chapters and Sections, the Editor alone is responsible. The division into Books is all that belongs to the Author.
The original manuscripts contained, under the title of Causes of the Exclusion of Evidence, a treatise on the principal defects of the English system of Technical Procedure. This extensive subject may appear not to be so intimately connected with the more limited design of a work which professes to treat of Judicial Evidence only, as to entitle a dissertation upon it to a place in these pages. On examination, however, the parenthetical treatise was thought to be not only so instructive, but so full of point and vivacity, that its publication could not but be acceptable to the readers of the present work: and the additional bulk, in a work which already extended beyond four volumes, was not deemed a preponderant objection, especially as the dissertation, from the liveliness and poignancy with which it exposes established absurdities, gives in some degree a relief to the comparative abstruseness of some other parts of the work. It stands as the eighth in order of the ten books into which the work is divided.
A few of the vices in the detail of English law, which are complained of both in this book and in other parts of the work, have been either wholly or partially remedied by Mr. Peel’s recent law reforms; and some others may be expected to be removed, if the recommendations of the late Chancery Commission be carried into execution. The changes, however, which will thus be effected in a system of procedure founded altogether upon wrong principles, will not be sufficient to render that system materially better: in some cases, perhaps, they will even tend to render it worse; since the malâ fide suitor has always several modes of distressing his adversary by needless delay or expense, and these petty reforms take away at most one or two, but leave it open to him to have recourse to others, which, though perhaps more troublesome to himself, may be even more burdensome to his bonâ fide adversary than the former. Thus, for instance: in one of the earlier chapters of Book VIII. the reader will find an exposure of one of those contrivances for making delay which were formerly within the power of the dishonest suitor; I mean that of groundless writs of error. Mr. Peel has partially (and but partially) taken away this resource, and the consequence, as we are informed, has been, not that improper delay has not been obtained, but that it has been obtained by way of demurrer, or by joining issue and proceeding to trial; either of which expedients (though perhaps somewhat less efficacious to the party seeking delay) are equally, if not more, oppressive in the shape of expense to the party against whom they are employed, than the proceedings in error.
The truth is, that, bad as the English system of jurisprudence is, its parts harmonize tolerably well together; and if one part, however bad, be taken away, while another part is left standing, the arrangement which is substituted for it may, for the time, do more harm by its imperfect adaptation to the remainder of the old system, than the removal of the abuse can do good. The objection so often urged by lawyers as an argument against reforms, “That in so complicated and intricate a system of jurisprudence as ours, no one can foretell what the consequences of the slightest innovation may be,” is perfectly correct; although the inference to be drawn from it is, not (as they would have it to be understood) that the system ought not to be reformed, but that it ought to be reformed thoroughly, and on a comprehensive plan; not piecemeal, but at once. There are numerous cases in which a gradual change is preferable to a sudden one; because its immediate consequences can be more distinctly foreseen. But in this case, the consequences even of a sudden change can be much more easily foreseen than those of a gradual one. Whatever difficulties men might at first experience (though the difficulties which they would experience have been infinitely exaggerated) in adapting their conduct to a system of procedure entirely founded on rational, and therefore on new, principles, none are more ready than lawyers themselves to admit that still greater difficulty would be felt in adapting it to a system partly rational and partly technical.
For such a thorough reform, or rather reconstruction of our laws, the public mind is not yet entirely prepared. But it is rapidly advancing to such a state of preparation. It is now no longer considered as a mark of disaffection towards the state, and hostility to social order and to law in general, to express an opinion that the existing law is defective, and requires a radical reform. Thus much Mr. Peel’s attempts have already done for the best interests of his country; and they will in time do much more. A new spirit is rising in the profession itself. Of this the recent work of Mr. Humphreys, obtaining, as it has done, so great circulation and celebrity, is one of the most gratifying indications. The reform which he contemplates in one of the most difficult, as well as important branches of the law, is no timid and trifling attempt to compromise with the evil, but goes to the root at once.* And the rapidity with which this spirit is spreading among the young and rising lawyers, notwithstanding the degree in which their pecuniary interest must be affected by the removal of the abuses, is one of the most cheering signs of the times, and goes far to show, that the tenacity with which the profession has usually clung to the worst parts of existing systems, was owing, not wholly to those sinister interests which Mr. Bentham has so instructively expounded, but in part at least, to the extreme difficulty which a mind conversant only with one set of securities feels in conceiving that society can possibly be held together by any other.
It has appeared to the Editor superfluous to add one word in recommendation of the work. The vast importance of the subject, which is obvious to all men, and the consideration that it has now for the first time been treated philosophically, and by such a master, contain in themselves so many incitements of curiosity to every liberal mind, to every mind which regards knowledge on important subjects as an object of desire, that volumes might be written without addding to their force.
[At an interval of more than ten years from the first publication of this work, the original Editor feels that an apology is due from him for the air of confident dogmatism perceptible in some of his notes and additions, and for which he can only urge the palliation of their having been written in very early youth—a time of life at which such faults are more venial than at any other, because they generally arise, not so much from the writer’s own self-conceit, as from confidence in the authority of his teachers. It is due, however, to himself to state, that the tone of some of the passages in question would have been felt by him, even then, to be unbecoming, as proceeding from himself individually: he wrote them in the character of an anonymous Editor of Mr. Bentham’s work, who, in the trifling contributions which the author desired at his hands, considered (so far as mere manner was concerned) rather what would be accordant with the spirit of the work itself, and in Mr. Bentham admissible, than what would be decorous from a person of his years and his limited knowledge and experience. His name was subsequently affixed, contrary to his own strongly expressed wish, at the positive desire of the venerable author, who certainly had a right to require it.]
*∗* The notes of the Editor of the original Edition are distinguished from other annotations by the word “Editor” being printed at full length.
Before entering on the perusal of the following work, it may afford some satisfaction to the reader to understand, from a general intimation, the nature and extent of the information which he may expect from it.
The results may be comprised in three propositions: the one, a theorem to be proved; the other two, problems to be solved.
The theorem is this: that, merely with a view to rectitude of decision, to the avoidance of the mischiefs attached to undue decision, no species of evidence whatsoever, willing or unwilling, ought to be excluded: for that although in certain cases it may be right that this or that lot of evidence, though tendered, should not be admitted, yet in these cases the reason for the exclusion rests on other grounds; viz. avoidance of vexation, expense, and delay. The proof of this theorem constitutes the first of the three main results.
To give instructions pointing out the means by which what can be done may be done towards securing the truth of evidence: this is one of the two main problems, the solution of which is here attempted. The solution of it is the second of the three main results.,
To give instructions serving to assist the the mind of the judge in forming its estimate of the probability of truth, in the instance of the evidence presented to it; in a word, in judging of the weight of evidence: this is the other of the two main problems which are here attempted to be solved. The solution of it constitutes the third of the three main results.
Of these propositions, the first, which is the only one of the three by which an opinion is announced, can scarce have failed to present to the mind of the professional lawyer the idea of novelty, and not of simple novelty only, but of paradox. Of my own country I speak in the first place; and the observation may, without much danger of error, be extended to every other of the most highly enlightened nations. Many and extensive are the masses of evidence against which an inexorable door is shut by obligatory rules. But, of the masses of evidence thus excluded, the composition is more or less different as between nation and nation.
As to the third problem,—to give instructions for judging of the truth of evidence,—so far as the proposition contained in the leading theorem is contradicted by authoritative practice, the solution of this problem is rendered unnecessary. An exclusion put upon a lot of evidence saves all discussion respecting the degree of weight to be allowed to it. Shut the street door in a man’s face, you save the trouble of considering the degree of attention that shall be shown to him in the house.
Objections, the effect of which (if allowed in that character) is to exclude the testimony of a witness altogether, are in the language of English law styled objections to his competency.
Translated, then, into the language of English law, the following is the import of the first of the three propositions:—In the character of objections to competency, no objections ought to be allowed.* Willing or unwilling, witnesses of all descriptions ought to be heard: the willing not to be excluded on any such grounds as those of imbecility, interest, or infamy; the unwilling not to be excused on any such ground as that of their unwillingness, either established or presumed; not even in any such cases as those of family-peace-disturbing, trust-betraying, self-convicting or accusing, self-disgracing, or in any other way self-prejudicing evidence.
Of the matter contained in any English law-book bearing the word Evidence on its title-page, a principal part consists of references to decisions by which objections to evidence have been either allowed or disallowed in the character of objections to competency. In the character of objections to competency, so far as the proof here given of the first of the three above-mentioned propositions were deemed satisfactory, they would be disallowed, all of them, in the lump.
But even in this case, the experience and reflection which dictated the allowance given to those objections in judicial practice, would not be altogether lost. Disallowed in the character of objections to competency, there is not one of them (those only excepted, in which the exclusion turns on the ground of unwillingness) that would not be to be allowed in the character of an objection to credit—to credibility. And it is in this character that they will afford so much matter to be employed in the solution of the latter of our two problems: they will serve in the framing of the rules or instructions for estimating the weight of evidence.
In stating the dispositions of the English jurisprudence on the subject of evidence, there will be occasion to lay down and establish the following propositions:—
1. That the system, taken in the aggregate, is repugnant to the ends of justice: and that this is true of almost every rule that has ever been laid down on the subject of evidence.
2. That it is inconsistent even with itself; and in particular, that there is not a rule in it which is not violated by a multitude of exceptions or counter-rules, which are observed in cases in which the reason of the rule so violated applies with as much force as in the cases where it is observed.
3. That this inconsistency has place, not only as between rule and rule, but as between period and period: between the system observed in former periods, and the system observed in later periods.
4. That, consequently, the objections drawn from the topics of innovation, subversion, &c. do not bear, in the present case, against the introduction of a rational and consistent system: inasmuch as reasonable dispositions might be substituted, in many if not most cases, by the mere adoption of the exceptions, to the exclusion of the general rule.
5. That the fittest hand for introducing improvement into this branch of legislation, would be that of the legislature.
6. But that it might be introduced even by the judicial authority, without that inconvenience which would attend the making changes by this authority in the texture of the substantive branch of the law. The exclusive rules relative to evidence belong to the adjective branch of the law: the effect of them is to frustrate and disappoint the expectations raised by the substantive branch. The maintenance of them has this effect perpetually: the abolition of them, even though by the judicial power, would have no such effect, but the contrary.*
If the discovery of truth be the end of the rules of evidence, and if sagacity consist in the adaptation of means to ends, it appeared to me that, in the line of judicature, the sagacity displayed by the sages of law was as much below the level of that displayed by an illiterate peasant or mechanic in the bosom of his family, as, in the line of physical science, the sagacity displayed by the peasant is below the sagacity displayed in the same line by a Newton. No peasant so stupid as to use a hundredth part of the exertion to put it out of his own power, for his own benefit and that of his family, to come at truth and to do justice within the circle of his family, as what have been employed by those sages to put it out of their power to discover truth and do justice for the benefit of their fellow-subjects within the circle of the state.
Such were the reflections that presented themselves to an uninformed, but happily a new and uncorrupted understanding, on the opening of the grand fountain of legal instruction on the subject of evidence, the work of the Lord Chief-Baron Gilbert.
At the distance of half a century, the first conceptions of youth have been submitted to and confirmed by the cautious scrutiny of riper years. The result of that scrutiny is now submitted to the public eye.
It appeared to me, that no private family, composed of half a dozen members, could subsist a twelvemonth under the governance of such rules: and that, were the principles from which they flow to receive their full effect, the utmost extravagance of Jacobinism would not be more surely fatal to the existence of society than the sort of dealing, which in these seats of elaborate wisdom calls itself by the name of justice. That the incompre-hensibility of the law—a circumstance which, if the law were wise and rational, would be the greatest of all abuses—is the very remedy which in its present state preserves society from utter dissolution; and that, if rogues did but know all the pains that the law has taken for their benefit, honest men would have nothing left they could call their own.
Such was the prospect that presented itself to me on my entrance upon this branch of moral science. I had come warm to it from the study of physical science. I had there seen the human mind advancing with uninterrupted and continually accelerated progress towards the pinnacle of perfection: facts wanting, but, by the unmolested and even publicly assisted industry of individuals, the deficiency continually lessened, the demand continually supplied: the faculty, the organ, of invention sound, and by wholesome exercise increasing in vigour every day: errors still abundant enough, but continually and easily corrected, being the result not so much of prejudice as of ignorance: every eye open to instruction, every ear eager to imbibe it. When I turned to the field of law, the contrast was equally impressive and afficting.
Plowden, one of the heroes of jurisprudence, of the growth of the sixteenth century, was a deserter from one of those professions which are built on physical science: he flourished towards the latter part of the reign of Elizabeth. From the report of a cause relative to a mine, he took occasion to unfold to the eyes of his brethren of the long robe the wonders of mineralogy: a terra incognita, as strange to them as America had been to their immediate progenitors. “The theory of mineralogy,” said he, “is to the last degree a simple one. In sulphur and mercury, the Adam and Eve of the mineral creation, the whole tribe of metals behold their common parents. Are they in good health? the two perfect metals, gold and silver, are the fruits of their embrace. Do they labour under any infirmity? the effects of it are seen in the imperfect metals, their imperfect progeny.”
It rests with the reader to judge, whether the principles of mineralogy as delivered by Plowden, are more absurd in comparison of the principles of the same science as delivered by Lavoisier, than the principles of the law of evidence as delivered by Gilbert, and practised by the infallible and ever-changing line of succeeding sages, will be found when compared, I will not say to the truest principles, but to the rules unconsciously conformed to in the humblest cottages.
The peasant wants only to be taught, the lawyer to be untaught: an operation painful enough, even to ordinary pride; but to pride exalted and hardened by power, altogether unendurable.
Supposing all this to be true—supposing the law of evidence to be in so bad a state, all the world over, as it has here been represented, so incompetent on every occasion to the discovery of truth, so incompetent therefore, on every occasion, to the purposes of justice,—how could things have gone on as they have done? how could society have been kept together? Such are the observations that would be apt enough to present themselves on this occasion to an acute and discerning mind.
The answer is—that, all the world over, what has been done by the law towards the preservation of society, has, on this ground, as on so many other grounds, been done, not so much by what the law is in itself, as by the opinion that has been entertained of it. But as the conception, such as it is, that non-lawyers have had it in their power to obtain, and have been accustomed to entertain of it, has been derived from the only source from which it could have been derived, viz. the account given of it by lawyers; and as, according to all such accounts, the law has at all times, and through all its changes, been the perfection of reason; such, therefore, it has in general been taken to be, by the submissive and incurious multitude. By their own experience, its imperfections must all the while have continually been exhibited to their view; but experience is not sufficient always to open the eyes that have been closed by prejudice. What their experience could exhibit to them, was the effect: what their experience could not exhibit to them, was the cause. The effect, the sufferings themselves, that resulted to individuals from the imperfections of the law, were but too indubitable: but the cause to which they were imputed, was the invincible and irremediable nature of things, not the factitious and therefore remediable imperfections of the law. The law itself is perfect: this they heard from all quarters from whence they heard anything about the matter: this they heard at all times, and on all occasions, from the only men who so much as pretended to know anything about the matter.
The law is an Utopia—a country that receives no visits, but from those who find their account in making the most favourable report of it.
All this while the violations of justice have been continual. But had they been ever so much more frequent, they would scarcely have contributed more effectually than they have hitherto done, to lay open the real state of the case, the true cause of the mischief, to the public eye. To individuals, that is, to the suffering party in each case, and his immediate connexions, the suffering produced by those violations was more or less acute: but even to the individual who suffered, his own suffering, considering the source it was seen to flow from, scarce presented itself in the character of a grievance. To the public at large, it could never have presented itself in any such character: because, to the public at large, it has always been impossible to know anything about the matter. To lawyers, the suffering has all along been known, and fully known: but to lawyers, how, in the nature of men and things, has it been ever possible that it should have presented itself in the character of a grievance? What sensation is ever produced in the breast of an angler, by an impaled and writhing worm? in the breast of a butcher, by a bleeding lamb? in the breast of an hospital surgeon, by a fractured limb? in the breast of an undertaker, by the death of a father or mother of an orphan family? If a fly were to be put on the hook, in a month when a worm is the proper bait—if the lamb were to be cut up into uncustomary joints—if, in the tying up of the stump after amputation, a three-tailed instead of a five-tailed bandage were to be employed—if, in the decorations of the coffin, the armorial bearings of the deceased were to be turned topsy-turvy—if the testimony of a duke or an alderman, exposed to the temptation of a sinister interest to the value of the tenth part of a farthing, were to be admitted, and an oppressed widow or orphan family gain their rights in consequence—if the rules established in the several professions, established with reason or against reason, were to undergo violation:—these are the incidents by which, in the several classes of professional men, a sensation would be produced; meaning always a sensation of the unpleasant kind.
In English legislation, the causes—meaning the ultimate and original causes—of the imperfections the removal of which is endeavoured at in the present work, are no other than those from which the whole swarm of imperfections with which the whole body of the law is still infested, derive either their existence or their continuance.
Inclination, power, knowledge—these three preliminary requisites concurring, the work, whatever it be—the work, how useful soever, how arduous soever, is accomplished. Any one of them failing, it remains unaccomplished; the accomplishment of it is impossible. And in so far as any one of them fails, in so far must the accomplishment, should it have proceeded to a certain length, remain imperfect.
For a work which is at once so arduous and laborious, adequate inclination cannot be looked for with any rational prospect of success, unless it have been committed to some workman, and he a competent one, under the character of a duty.
A duty, be it what it may, will never be fulfilled, any farther than it is the interest of each person concerned in the work, to do that which is his duty.
Apply these well known and undisputed and indisputable principles to the work in question—the removal of the imperfections in question, as well as all other imperfections of the law.
Of the three altogether indispensable requisites, power—power in quantity and quality altogether adequate, cannot be denied to be in existence. It is the only one of the three that is.
As to inclination, and, in the first place, as to duty: what is every man’s business is no man’s business; what is every man’s duty in name, is no man’s duty in effect. Among the sharers of legislative power—that power being supreme, and the sharers in it collectively irresponsible—legislation, i. e. the proposition of laws, is to each one a right, to no one a duty.
Taking the whole body of the laws together, or with an exception made of this or that particular branch of it,—were the imperfections ever so much more numerous and pernicious than they are, there is not that individual to whom any one can say with justice—“The fault is in you; you have been neglectful of your duty.”
It not being to any effectual purpose the duty, still less is it the interest, of any one alive. With or without knowledge, there exists not, nor in the present state of things can exist, that man whose interest it can be said to be.
Were it the interest of every individual in the whole community, that interest would in each instance be worse than unavailing, if in any instance it were found to exist undirected by the requisite stock of appropriate knowledge.
One class of men there is, by whom the stock of knowledge, appropriate to this purpose, is completely monopolished and engrossed. There is not one of them whose interest acts towards the accomplishment of this most arduous of all possible works: there is not one in whom the force of interest does not act in direct opposition to it. Of all those who have any concern of any kind with the established system, there is not one who would be a gainer by its being better than it is: there are few, very few, who would not be gainers by its being worse than it is.
Yet, as often as a proposition, of the smallest or of the greatest moment, but more especially of the greatest, is presented to the legislature, a question put at the outset is, Has it the approbation of the gentlemen of the long robe? If silence, or an answer in the negative, is the result, down drops the proposition dead-born, and a mixture of contempt and indignation, instead of respect and good-will, is the return made to the proposer.
What is more, how ample soever the stock of knowledge may be that is to be found among the exclusive possessors of the appropriate knowledge necessary to the work, in quality it would yet be found far indeed from being adequate. The stock in hand is adapted to its intended purpose, but is not suitable to this other purpose.
In regard to such arrangements as may in the course of the following work be brought to view in the character of remedies to the abuses of which the existing system is composed, two general observations may be found applicable—two observations respecting the reception they may naturally expect to meet with from the two different classes of persons of which the public is composed.
To a non-lawyer, in proportion as an arrangement of this sort appears conducive and necessary to the ends of justice, it will be apt to appear needless. So perfect the system, can it have failed to make provision—the best provision which the nature of things admits of, for the attainment of those ends? The best possible provision—which is as much as to say, either the proposed arrangement, if it be a good one, or one still better.
To a lawyer, in the same proportion, it will accordingly appear odious and formidable. Conscious that no such arrangement is established—conscious that not so much as the semblance of an equivalent, much less any preferable substitute, is established—conscious, if his own horn-book be not completely strange to him, that these abuses are the stuff of which it is made, that to the mischief with which these abuses are pregnant, it contains nothing that is, or can be, or was ever intended to be, a remedy,—the light in which it will be his business to represent the remedy, represent it with the best possible effect to the non-lawyer, and therefore, if possible, to himself, will be that of a wild, fanciful, visionary arrangement,—too alien from practice, and therefore too bad or too good—no matter which, either character will serve—to be a practicable one.
On the present occasion, his task, however, will not be altogether an easy one: for in the arrangements which will be proposed in the character of remedies, there is nothing, or next to nothing, that is not in practice, everywhere and every day, before his eyes. Extension, it will be seen, is all they stand in need of.
[* ]Impey’s Common Pleas, p. 318.
[† ]Compton’s B. R. and C. B. by Sellon.
[* ]Peake, Preface.
[* ]The Editor has not thought it necessary to consult, on the state of the existing law, any other authorities than the compilations of Phillips, Starkie, and others. These works were sufficiently authoritative for his purpose; and if the state of the law be such, that even those experienced lawyers can have misunderstood it, this simple fact proves more against the law than any remarks which the Editor can have grounded on the misconception.
[* ]It may not be impertinent here to remark, that the suggestions of Mr. Humphreys, admirable as they are, have received most valuable improvements from Mr. Bentham’s pen.—See an article in the Westminster Review, No. XII. (reprinted in this collection.)
[* ]Understand, so far as rectitude of decision is the only object. If on any other ground any exemption be established, it will be on that of delay, vexation, or expense; viz. on the supposition, that the certain mischief flowing from one or more of these sources will be more than equivalent to the contingent mischief apprehendible from the danger of wrong decision, in consequence of the exclusion of the evidence.
[* ]The terms, adjective and substantive, applied to law, are intended to mark an important distinction, first pointed out to notice by this author; viz. the distinction between the commands which refer directly to the ultimate ends of the legislator, and the commands which refer to objects which are only the means to those ends. The former are, as it were, the laws themselves; the latter are the prescriptions for carrying the former into execution. They are, in short, the rules of procedure. The former, Mr. Bentham calls the substantive law; the latter, the adjective.—Editor.