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CHAPTER II.: OF EVIDENCE CONSIDERED WITH REFERENCE TO A LEGAL PURPOSE; AND OF THE DUTIES OF THE LEGISLATOR IN RELATION TO EVIDENCE. - 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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OF EVIDENCE CONSIDERED WITH REFERENCE TO A LEGAL PURPOSE; AND OF THE DUTIES OF THE LEGISLATOR IN RELATION TO EVIDENCE.
So much for evidence in general; evidence taken in the largest sense of the word, condered under every modification,—of the subject to which it may come to be applied—of the nature of the fact sought,—the fact, to the proof of which it may come to be applied. Hereafter, the only sense in which the word is used, is that in which the application of it is confined to juridical, or say legal, evidence.
Under this limitation, then, evidence is a general name given to any fact, in contemplation of its being presented to the cognizance of a judge, in the view of its producing in his mind a persuasion concerning the existence of some other fact—of some fact by which, supposing the existence of it established, a decision to a certain effect would be called for at his hands.
To give execution and effect throughout to the main, or substantive, branch of the body of the law, is, or ought to be, the main positive end or object of the other branch, viz. the adjective, or that which regulates the system of judicial procedure.*
Of the system of procedure, one principal part is that which regards the presentation, or say exhibition, of the evidence—the delivery, and receipt or extraction, of the evidence.
Preparatory and necessarily antecedent to every operation, or series of operations, by which execution and effect are given to an article of substantive law, is judgment, decree, decision.
Whatever be the decision by which a cause or suit at law is, as to all except execution, terminated, this decision has for its subject-matter two constantly concomitant points or questions: the point or question of law, and the point or question of fact.
So far as regards the question of fact, the decision, in so far as it is just, depends upon and is governed by the evidence.
Judicature, like all the other operations of government, consists in rendering a service to some person or persons: to the plaintiff, if the decision be in his favour; to the defendant, if in his.
The service rendered by the judge to the plaintiff, by a decision in favour of the plaintiff’s side of the cause, consists, according to the nature of the demand, either in putting him in possession of some right, or assemblage of rights; or in administering to him satisfaction in respect of some wrong or wrongs, whether in the shape of compensation to himself, or of punishment to the wrongdoer.
The service rendered by the judge to the defendant, by a decision in favour of the defendant’s side of the cause, consists in exonerating him of the obligation sought to be imposed upon him by the plaintiff’s demand.
The state of the facts, as well as the state of the law, being such as to confer on the plaintiff a title to such or such a right, or to satisfaction on the score of such or such a wrong,—if evidence, and that of a sufficient degree of probative force to satisfy the judge, of the existence of the necessary matter of fact, be wanting,—the law, in that instance, fails of receiving its due execution and effect; and, according to the nature of the case, injustice in the shape of non-collation† of rights where due, non-administration of compensation where due, or non-administration of punishment where due, is the consequence.
If either the state of the facts, or the state of the law, fails of being such as to confer on the plaintiff a title to the service demanded by him as above, injustice to the prejudice of the defendant’s side would be the consequence, were the judge to impose upon him the burthensome obligation to which it is the object of the plaintiff to subject him. And so far as his title to an exemption from such obligation is constituted by a matter of fact, so far it depends upon evidence: and if, such matter of fact having on the occasion in question been in existence, the evidence necessary to satisfy the judge of its existence be wanting, so far injustice, as above, is the consequence of such want of evidence.
Hence arises one natural and proper object of the legislator’s care; viz. to see that the necessary evidence be forthcoming.‡
But if the effect of such evidence as comes to be presented to the judge be to produce in his mind a material and decisive deception, viz. the persuasion of the existence of some matter of fact which was not in existence—the consequence of such persuasion being an unjust decision to the prejudice either of the plaintiff’s side, or of the defendant’s side, as above—the effect of such fallacious evidence may be the same as that which might have been produced, as above, by the failure, the want, the deficiency of evidence.
Hence arises another natural and proper object of the legislator’s care; viz. guarding the judge against the deception liable to be produced by fallacious evidence.
Subordinate to this object, are the following two:—1. To give instructions to the judge, which may serve to guide him in judging of the probative force of evidence; 2. To take securities that the evidence itself shall possess as great a degree of probative force, in other words, shall be as trustworthy as possible.
The properties which constitute trustworthiness in a mass of evidence, are two: correctness and completeness.
The property that presents itself in the first place as desirable on the part of an aggregate mass of evidence is—that, as far as it goes, it be correct; that the statement given in relation to the matter of fact in question, be as conformable as possible, at least in respect of all material circumstances, to the facts themselves. In proportion as it fails of possessing the perfection of this property, in the same proportion will the mass of evidence fail of attaining the maximum of trustworthiness—in the same proportion will be the danger of deception and consequent misdecision on the part of the judge.
First desirable property in an aggregate mass of testimony, correctness.
Another property, the desirableness and essentiality of which is no less obvious on the part of an aggregate mass of testimony, is that of being complete: that the statements of which it consists comprehend, as far as possible, and without omission, the aggregate mass of all such facts, material to the justice of the decision about to be pronounced, as on the occasion in question really had place.
Let the aggregate mass of evidence be deficient in respect of completeness, its correctness, instead of a cause of trustworthiness, may be a cause of the opposite quality: instead of a security against deception and consequent misdecision, it may be a necessarily efficient cause of these undesirable results.*
Applied to evidence, the term incompleteness designates different objects, according as it is applied to a single lot or article of evidence, such as the testimony of a single individual, or to a body of evidence considered in the aggregate. In the latter case, the body may be rendered incomplete, either by incompleteness on the part of any one or more of the articles of which it is composed, or by the entire absence of any one or more of the articles which might and ought to have entered into the composition of it.
Neither incompleteness nor incorrectness have any tendency to produce deception any farther than as partiality is the accompaniment or the result: but unless in the rare and just imaginable case, where the incompleteness and incorrectness operate on both sides, and in such manner as to produce on each side a diminution of probative force exactly equal—partiality, intended or unintended, to the prejudice of one or other side, will always be the result.
To the qualities of correctness and completeness, impartiality could not with propriety have been either substituted or added: not substituted, because the intimation conveyed by it would be an intimation rather of the state of the deponent’s mind than of the quality of his evidence; not added, because the intimation conveyed by it would be that of an imperfection distinct from both: whereas, supposing the evidence neither incorrect nor incomplete, neither can the evidence itself be other in its tendency than impartial, nor is the state of the deponent’s mind material to the purpose.
Again: the operations necessary to the presentation of the evidence to the senses and cognizance of the judge, are in every instance unavoidably attended with a certain degree of inconvenience, in one or more of three shapes; viz. delay, vexation, and expense. If in any instance it should happen, as in many instances it may and does happen, that the relative magnitude and weight of this inconvenience is such as to render it preponderant over the mischief of whatever chance there may be that injustice, as above, may be produced for want of the evidence; on that supposition, it is better that the evidence in question be not presented, than that it should be presented.
And here we see a third natural and proper object of the legislator’s care, viz. guarding against the production of inconvenience in the shape of delay, vexation, or expense;—to wit, in so far as such inconvenience is either superfluous, or, in comparison with the mischief attached to the injustice resulting from the exclusion of the evidence, preponderant.
Vexation and expense being incident to the presentation of evidence, legal powers adapted to that purpose will be requisite: in every case, powers of the compulsive kind, operating by means of punishment; and, in some cases, powers of the alluring or attractive kind, operating by means of the matter of reward.
To arm the judge with powers of this description, applicable to the nature of this case, will thus constitute a specific object of the legislator’s care, referable to the general head above brought to view; viz. securing the forthcomingness of evidence. But this being among the operations that fall under the head of procedure, belongs not to the present work.
A condition necessarily previous to any determinate operation directed to the causing of this or that article or source of evidence to be presented to the cognizance of the judge, is the knowledge, or at least the conjectural conception, of its existence. Of evidence, the existence of which is not known at the outset of the suit, the existence may sometimes be discovered in the course of it. Either immediately, or with the intervention of any number of links, one article of evidence may lead to the discovery and to the successful investigation of another.
To arm the judge, and, through the medium of the judge, the parties on either side, with the powers necessary to the investigation of evidence, constitutes accordingly another natural and proper specific object of the legislator’s care, subordinate to the same general object—securing the forthcomingness of evidence. But this likewise must be referred to the subject of procedure, not coming within the design of the present work.
In contemplation, and for the eventual support, of a right or rights already created and conferred, or considered as about to be created and conferred, the providence of individuals, and in some instances of government itself, is in use to create or appoint a correspondent and appropriate species of evidence, which, in consideration of such its destination, may be distinguished by the general denomination of preappointed evidence.
To favour the institution of this useful species of evidence, constitutes another specific object of the legislator’s care, subordinate to the same general head—securing the forthcomingness of evidence.
Under each of these several heads (those only excepted which belong more properly to the subject of Procedure) a view will be presented—in the first place, of what seems proper to be done in the way of legislation; in the next place, of what has been done in the way of legislation; including the work of which so little has been done—the work of the genuine legislator, and the work of which so much has been done—the work of the pseudo-legislator, the judge,—the judge making, as he goes, under pretence of declaring, that part of the rule of action which has the form of law.
Speculation, to whatever extent pursued, is of no value, except in so far as it has a practical purpose. In the present work, the extent to which the speculative discussions contained in it are pursued, is considerable: but the view with which they were written is altogether practical. The object was to find an answer to this question,—What ought to be the part taken by the legislator in relation to evidence?
The subject of Evidence being but a branch of the subject of Procedure, both have their foundation in one common set of principles. These principles are—the ends, the direct and collateral ends, of justice, the proper and legitimate ends of procedure: on the one hand, rectitude of decision; which may be said to have place when rights are conferred, and obligations imposed, by the judge, on those persons, and those only, on whom the legislator intended that they should be conferred and imposed: on the other hand, the avoidance of unnecessary delay, vexation, and expense. The first may be called the direct end; the three latter, the collateral ends of justice.
These ends are the ends, and the only ends, aimed at in the arrangements proposed in the course of this work. In the form of reasons for the several arrangements, their subserviency to those ends is all along brought to view. Subserviency to these ends is in like manner the standard to which the merit or demerit of the corresponding arrangements of actually established law are all along referred.
But, when tried by this standard, the arrangements of the existing systems of law being found in every part enormously, and to all appearance purposely, defective, the inquiry would, it seemed, have been imperfect, and, comparatively speaking, uninstructive, if the cause of such their aberration had not at the same time been pointed out. This cause appeared to lie in the opportunity which the authors of these arrangements had of directing them, as under the impulse of sinister interest it appears they did direct them, to the prosecution of certain false ends, and in particular their own professional and personal emolument and advantage.
To the pursuit of the legitimate ends, as far as they have been pursued, the system which may be distinguished by the name of the natural system of procedure has owed its birth; to the pursuit of the spurious and sinister ends, the technical system of procedure. Of the natural system, in every family the domestic, and in most states various courses of procedure comprehended under some such name as the summary, may afford exemplifications.
For the purpose of ascertaining what arrangements under each head promised to be most conducive to the attaiment of the ends of justice, it seemed necessary to trace up to their sources or causes the several mischiefs opposite to these ends: the evils, in the avoidance of which the attainment of those ends consisted. When on this occasion a circumstance presented itself in the character of an immediate cause of any of those evils, that immediate cause was seen to originate in a higher cause—that higher in one still higher—and so on; in some instances as high as through four or five degrees or removes. These causes presently distributed themselves into two divisions: natural, the original and irremediable work of nature; factitious, the work of human agency or omission, of human artifice or imbecility. In the factitious causes might be seen the result partly of folly, partly of improbity—of that improbity on the part of the authors of those arrangements, which consists in the pursuit of the sinister ends above mentioned.
The principal divisions of the subject being thus pointed out, it may be useful to exhibit a summary view of the topics that might be expected to be handled in a work on Evidence, but of which some belong more properly to a work on Procedure at large: others are included under the foregoing head.
1. Examination of deponents,—mode of conducting the examination so as to avoid producing deception on one hand, or preponderant vexation, expense, and delay on the other. See Book II. Securities; and Book III. Extraction.
2. Of the number of witnesses to be required.—Requiring two witnesses is excluding every witness that does not come accompanied with another. The propriety of this exclusion stands upon different ground in the two cases of ordinary or casual, and pre-appointed, evidence. See Book IX. Exclusion, and Book IV. Pre-appointed.
3. Of conclusive evidence.—Making any evidence conclusive, is excluding all evidence on the other side. See Book IX. Exclusion.
4. Authentication of evidence; including as well orally delivered, as ready-written, evidence.—See the Book so entitled (Book VII.)
5. De-authentication, or detection of unauthenticity: by this is done, in regard to authenticity, what by examination and counter-evidence is done in regard to truth. See Le Clerc’s Ars Critica, and Book VII. as above.
6. Of appropriate evidence.—Under this head might come all discussions on the appositeness of evidence in relation to the terms of the instrument of demand or the instrument of defence. But the foundation of this inquiry is not in the nature of things, but merely in the technical forms of English common law. It has no place in Roman, nor even in English equity law. It belongs more properly to Procedure at large than to Evidence.
7. Of the onus probandi: on whom it lies.—Another title, the importance of which arises chiefly out of the imperfections of English common law; and in particular of that feature of it which forbids to draw the relation from the mouths of the parties; that is, from those who are likely to have been best acquainted with the facts. In general, the proof of all facts necessary to constitute the ground of a demand, lies upon the plaintiff, by whom the demand is made; and so upon the defendant, in the case of the defence. Any exceptions should turn upon proportions, as between delay, expense, and vexation, on each side, arising out of the particular nature of each species of demand or defence; that is, of the matters of fact of which the ground of each is composed. This topic, too, seems to belong rather to Procedure than to Evidence.
8. Of the means of causing evidence to be forthcoming;—i. e. of causing persons and things, in the character of sources of evidence, to be forthcoming, and to yield the evidence of which they have the capacity to become sources.—This topic belongs clearly to the subject of Procedure.
9. Of indicative evidence.—Indicative evidence is a name that may be given to any evidence, in respect of its being so, not in relation to the principal fact in question, but in relation to the existence of this or that person or thing, in the character of a source, from whence evidence, which is such with relation to the fact in question, may be derived. When evidence of the fact in question is investigated, it is through the medium of indicative evidence. This belongs to Procedure.
10. Of spontaneously-delivered evidence.—Spontaneously delivered, is a name which may be given to evidence when delivered without interrogation. See Book II. Securities, and Book III. Extraction.
11. Of evidence sine lite.—An example of this is, where, to enable a man to receive money from an officer employed in the payment of public money, evidence showing his title must be produced. Here, as elsewhere, the object is to guard against deception in the most effectual way possible, without preponderant or unnecessary vexation, expense, and delay.*
12. Of scientific evidence—a name that may be given to information delivered by persons whose capacity of furnishing it is founded on skill and experience in some particular line of art and science. Persons of this description, though in English law confounded with witnesses, and, not without advantage, treated as such, are in fact a sort of assistants to the judge, and as such treated by Roman law.
In the case of Le Brun, a domestic servant, erroneously convicted of the murder of his mistress, Madame Mazel, at Paris, by a sentence of the Lieutenant-criminel, dated 18th January 1690,† mention is made of five sorts of professional persons, to whom the denomination of experts is applied, and of whose evidence the substance is reported. Locksmiths, to explain the nature of a master-key, known to have been in his possession, and its relation to other keys belonging to the same locks. Cutlers, to say whether there was any relation between a knife found upon the person of the defendant, and another knife which appeared to have been made use of in his committing the murder, but had been found in another place. Peruke-makers, to say whether a few hairs, that had been found in the clenched hand of the deceased, might have been the defendant’s, and plucked from his head. Washerwomen, to make a comparison between the shirts and neckcloths of the defendant, and a bloody shirt and neckcloth that appeared to have belonged to the murderer, and to have been stained with blood in the course of the struggle. Rope-makers, to say whether there was any resemblance between some cords that had been found in the possession of the defendant, and a strange cord which, it was thought, might have been made use of, or provided for the purpose of the murder. All these experts are mentioned as having been nominated by the Lieutenant-criminel, the judge.
13. Of time and place—their influence on the subject of evidence.—The principles brought to view in an already published work,‡ will be applied to this ground, wherever necessary, in the present publication.
14. English technical writers reviewed, with a view to the method observed, and the rules laid down by them on the subject of evidence.—Comments of this description are incidentally introduced, wherever they appear to be called for by the occasion.
[* ]See antea, p. 17, note.
[† ]By collation of rights, Mr. Bentham means that species of service which the judge renders to any person by putting him in possession of a certain right. Non-collation of rights has place when that service is not rendered—when the person in question is not put in possession of the right.
[‡ ]There are many other judicial purposes for which it is necessary that things and persons should be forthcoming, besides that of being presented to the judge in the character of sources of evidence. The subject of Forthcomingness, therefore, belongs to the general subject of Procedure. And as the arrangements necessary to secure the forthcomingness of persons and things to serve as sources of evidence, do not differ from those which are necessary to secure their forthcomingness for any other judicial purpose, they do not properly form part of the subject of the present work.—Editor.
[* ]Suppose two witnesses, both veracious and correct; the testimony of each, of a nature to belong to the head not of direct, but of circumstantial evidence: the facts which Primus is enabled to prove, none but what are of a nature to afford inductions, which, if admitted, and standing alone, will be decisive in favour of the plaintiff’s side: the facts which Secundus is enabled to prove, none but what are of a nature to afford inductions decisive in like manner in favour of the defendant’s side. Suppose now the testimony of Primus received, while that of Secundus is not received, or vice versâ, the consequence is obvious.
[* ]On this subject a few pages had been written by Mr. Bentham, but he had never completed the inquiry, and the manuscript in the hands of the Editor was so incomplete that he has thought it best to suppress it.
[† ]Causes Celèbres, vol. iii. p. 309.
[‡ ]Essai sur l’Influence des Temps et des Lieux en Matière de Legislation,—published in vol. iii. of “Traités de Legislation,” edited by M. Dumont.—[See Essay on the Influence of Time and Place, &c. in Vol. I. of the present collection.]