Front Page Titles (by Subject) APPENDIX C.: FALSE THEORY OF EVIDENCE—(GILBERT'S.) - The Works of Jeremy Bentham, vol. 6
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APPENDIX C.: FALSE THEORY OF EVIDENCE—(GILBERT’S.) - 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.)
“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.)
[* ]Impey’s Common Pleas, p. 318.
[† ]Compton’s B. R. and C. B. by Sellon.
[* ]Peake, Preface.