Front Page Titles (by Subject) CHAPTER XII.: GROUND OF PERSUASION IN THE CASE OF THE JUDGE—CAN DECISION ON HIS OWN KNOWLEDGE, WITHOUT EVIDENCE FROM EXTERNAL SOURCES, BE WELL GROUNDED? - The Works of Jeremy Bentham, vol. 6
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CHAPTER XII.: GROUND OF PERSUASION IN THE CASE OF THE JUDGE—CAN DECISION ON HIS OWN KNOWLEDGE, WITHOUT EVIDENCE FROM EXTERNAL SOURCES, BE WELL GROUNDED? - 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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GROUND OF PERSUASION IN THE CASE OF THE JUDGE—CAN DECISION ON HIS OWN KNOWLEDGE, WITHOUT EVIDENCE FROM EXTERNAL SOURCES, BE WELL GROUNDED?
A decision pronounced by a judge on a question of fact, what efficient cause can it have had, so it be conformable to justice, other than evidence? None whatever, is the answer that naturally presents itself.
To this rule, however, four cases may on further reflection be apt to present themselves in the character of exceptions: four cases, of the first of which it will be seen, that its title to that character will, on examination, be affirmed; while in the three others, it will be disallowed.
Case 1.—The only perceptions on which the decision concerning the fact is grounded, are perceptions obtained by the judge himself, without any report made to him, by any other person, in the character of a percipient witness. In this case, the functions and characters of percipient witness and judge are united in the same person: deposing witness there is none, there not being either need or room for the appearance of any person in that character.†
Case 2.—No person appears on either side in the character of a deposing witness: but the facts on which the decision is grounded are, for the purpose of the decision, established by the admission, express or implied, of the parties on both sides.‡
Case 3.—The facts in question are deemed too notorious to stand in need of being established by special evidence.
Case 4.—Facts on one side having been deposed to, and in such manner that, supposing the deposition credited, they would have been established by evidence,—a decision in disaffirmance of those facts is formed, on the mere ground of improbability.
Of these four cases, the first mentioned alone, viz. decision on view, will be found, as already observed, a real exception to the rule. It is a decision without evidence.
Without evidence? The judge, in this case, has he not the evidence of his own senses? Doubtless: but, in this case, the expression is but figurative: nor does the word evidence designate the same idea in this, as in other cases: his senses are detached from his person, erected into so many independent persons, and in that character introduced as witnesses. To keep clear of this confusion,—instead of decision without evidence, say rather decision without testimony: not that the confusion will, even in this case, be entirely avoided.
Without evidence? Be it so then. But the ground of the decision,—is it not still firmer than if it were composed of evidence? Yes, certainly—if the only mind, the satisfaction of which were worth providing for, were that of the judge by whom in the first instance the decision were to be pronounced. Supposing his opportunities of observation sufficient, and those opportunities improved—a report, however trustworthy, made of the fact by any other person concerning the supposed perceptions of that other person, will be but a very inadequate succedaneum to any perceptions obtained by himself. Whatever be the superiority which immediate possesses over hearsay testimony, the same will internal perception on the part of the judge possess, in comparison with persuasion grounded on the testimony of another, or any number of others.
If, then, the mind of the judge were the only mind, the satisfaction of which were worth regarding, perception obtained by the judge would be a ground of decision, not merely equal, but far superior, to evidence. But unless absolute despotism, seated in the breast of the judge himself, be the only eligible form of government, the mind of the judge is not the only mind the satisfaction of which is worthy of regard. So far from it, that it is only in the character of an instrument of satisfaction to some other mind or minds, that satisfaction afforded to the mind of the judge himself is of any use. In the case of unbridled despotism seated in some one superior breast, as in Morocco, it is of the mind of the despot, and of him alone: in the case of any government simply monarchical, or in a greater or less degree popular, in which the affections of the public are, or are professed to be, an object of regard, it is the mind of the public, the satisfaction of which must (if propriety or consistency be regarded) be said to be the ultimate object in view.
Of this theoretical disquisition, what then is the practical use? To ascertain whether under any, and if under any, under what conditions, power should in any case be allowed to the judge for deciding on the ground of his own perceptions, without the support of personal evidence ab extrà.
The answer seems to present little difficulty. In the first instance, and for saving delay, vexation, and expense, as well as to prevent mis-decision, or non-decision for want of demand, let the judge’s own perception be a sufficient ground for decision—for a decision to be pronounced by himself.
In case of appeal, which, in a case of this sort, ought ever to be allowed,—to guard against ultimate misdecision, let it be incumbent on the judge, if so required, to officiate in the character of a deposing witness, and in that character state the facts, subject to counter-interrogation,* exactly in the same manner as any other witness.
Even in the first instance, if the judicatory be, as it ought if possible to be, so constructed as to admit and contain an audience,—in pronouncing his decision, the judge might and ought to deliver, in his character of percipient witness, in the face of that audience, the facts which that decision takes for its ground.
Many, as will be seen, are the cases in which, to help to form the ground for decision, cognizance of this or that matter of fact is, under every system of law, obtained, in the way of immediate perception, by men occupied in the exercise of judicial functions: but, in these cases, perception constituting but a part of the ground of decision, and forming no more than a sort of supplement to testimony, they come not under the head of decision without evidence.
We come now to the cases in which the absence of evidence is but apparent, or regards no more than a part of the aggregate mass of legally operative facts:—
1. First comes the case of admissions, as above explained—express, or implied.
Admissions are but evidence, are but testimony, under another name.
When the admission is express, being the declaration of a party, and the effect of it operating, so far as it goes, in disfavour of him whose declaration it is, it comes under the head of self-disserving evidence.
Evidence of this description is, it will be seen, not only evidence, but the most trustworthy of all evidence: understand always, so far as the application made of it—i. e. the decision grounded on it—is confined to the interest of him whose declaration it is, and such other interests (viz. the interests of his representatives) as, being placed at his disposal, are considered as included under his.
When the admission is, as above explained, not express but only implied, the evidence is not direct but circumstantial: evidentiary fact, the negative act, the species of default above exemplified; principal fact, or fact evidenced, admission of the fact by which the interest which the admitting party has in the cause, is disserved.
2. Next comes the case where the fact is of the number of those which, being considered as placed by notoriety out of the reach of dispute, have therefore no need of being established by special evidence,—by evidence adduced for the single purpose of the suit actually in hand.
If to the purpose in question (viz. the purpose of serving, or helping to serve, as a ground for judicial decision) the fact be really notorious, it is notorious to the judge: a persuasion of the existence of it—a persuasion strong enough to give support to decision—is already formed in the bosom of the judge: this being assumed, all special evidence—all evidence the object of which is to endeavour to form such a persuasion, is, by the supposition, so far as his persuasion alone is deemed sufficient, superfluous and useless.
But, unfortunately, between facts that to the purpose in question are sufficiently notorious, and those that are not so, no distinct line is to be found: and where, in regard to this or that fact, a general persuasion of its existence is sufficiently prevalent, and to a sufficient extent, yet, in regard to this or that material circumstance, the persuasion is not perhaps sufficiently extensive and distinct. A fact regarded as notorious by one man, may be matter of dispute to another: a fact regarded as notorious by the plaintiff, may be matter of dispute to the defendant, and even to the judge.
From this indeterminateness, the practical inference seems to be as follows:—To save delay, vexation, and expense, it ought always to be in the power of the judge, at the instance of either party, to pronounce, and, in the formation of the ground of decision, assume, any alleged matter of fact as notorious. On the other hand, to guard against misdecision, it ought at the same time to be allowed to the party,—viz. to the party to whose prejudice the fact, if assumed, would operate—to deny the notoriety of the fact, and in so doing, call for special proof to be made of it: provided always, that for a false assertion to this effect, as for a false declaration of his persuasion to any other effect, he should stand exposed to suffer—whether by burthen of punishment, or by burthen of satisfaction, or both—as for wilful, i. e. self-conscious, falsehood, or falsehood through temerity, as the case may be.
When a fact is really to such a degree notorious, as that a man will not, without the imputation of falsehood, be heard to deny his persuasion of its existence, or to speak of himself as doubting of it,—in such case, if, in addition to a simple call for proof of it, an express declaration of such disbelief or doubt be made requisite to the existence of the obligation of complying with such call, shame,—fear of disrepute, will in general be sufficient to prevent any such call from being made, in a case in which the declaration, if made, would be otherwise than sincere: but if no such declaration be required—if the obligation follow upon the call—such call ought to be expected as a matter of course, in every case in which, by a chance of misdecision in favour of him who makes the call, or by delay, vexation, or expense, created by it to the prejudice of the other side, a sinister advantage may in any shape be reaped from it.
Under the existing systems of technical procedure, spun out everywhere under the impulse of an interest directly opposite to every end of justice,—the object, so far as concerns evidence, has everywhere been, not to lighten, but to aggravate, the load of unnecessary evidence: accordingly, proof made by one party, of facts of which on the other side there is no doubt,—proofs, in a word, substituted to admissions, are among the resources drawn upon for the advantage of the actual and mischievous ends of judicature: and as to this, so to other purposes, to prevent those explanations, by which injustice in all its shapes would be prevented, is among the objects which have been but too effectually accomplished.
It will seldom if ever happen that, for the substantiating either the plaintiff’s demand, or the defendant’s defence, no other facts than such as are already notorious will require to be believed: it is seldom, therefore, if ever, that evidence, special evidence (admissions as above included,) will altogether be to be dispensed with.
3. Lastly comes the case in which, in disaffirmance of facts affirmed by evidence on one side, a decision is pronounced on the ground of the improbability of these same facts.
Though not pronounced altogether without evidence, a decision thus grounded might seem to be pronounced without evidence adduced on the side in favour of which it is pronounced.
But, upon examination, it will be found that even in this case the decision is not without support from evidence. The evidence belongs indeed to that class which has received the name of circumstantial evidence—a modification of circumstantial evidence, composed of all those facts, all those sufficiently notorious facts, the existence of which is regarded as incompatible with the existence of the facts to which it is thus opposed; or, at any rate, as affording inferences of their non-existence—inferences strong enough to be regarded as conclusive, and, in that character, to govern and determine the persuasion of the judge.*
—ON THE SECURITIES FOR THE TRUSTWORTHINESS OF TESTIMONY.
[† ]Under English law, this state of things is exemplified in the case in which the judge has been authorized to convict on “view:” to pronounce a man guilty of having committed an offence of this or that description, on the ground that the act of transgression was committed under the observation of the judge himself.
[‡ ]Under English law, on admission express on both sides, as when a case is stated by them in conjunction, for the opinion of the court: on admission presumed, on howsoever slight a foundation, by the judge, from the deportment of the defendant, in the case when he omits to perform this or that operation, the performance of which is exacted of him on pain of his being considered as having admitted the facts necessary to establish the demand on the plaintiff’s side: as in the case of judgment for default, Bill taken pro confesso, &c.
[* ]See Book II. Securities, Chap. IX. Interrogation.
[* ]The subject of improbability will be treated at considerable length in the Book on Circumstantial Evidence, (Book V.)