Front Page Titles (by Subject) CHAPTER I.: OF PREAPPOINTED EVIDENCE IN GENERAL. - The Works of Jeremy Bentham, vol. 6
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CHAPTER I.: OF PREAPPOINTED EVIDENCE IN GENERAL. - 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 PREAPPOINTED EVIDENCE IN GENERAL.
Preappointed evidence, what?—Topics for discussion enumerated.
We come now to the subject of preappointed evidence: a subject new in denomination, and thence, taken in the aggregate, even in idea: for, without names to fix them, ideas, like clouds, change and vanish as speedily as they are produced.
In every case in which the creation or preservation of an article of evidence has been, either to public or private minds, an object of solicitude, and thence a final cause of arrangement taken in consequence (viz. in the view of its serving to give effect to a right, or enforce an obligation, on some future contingent occasion,)—the evidence so created and preserved comes under the notion of preappointed evidence.
The sort of facts which such evidence is employed to prove, are mostly facts constitutive or evidentiary of right. Facts constitutive or evidentiary of wrong, will not readily find persons able, and at the same time willing, to make mention or join in making mention of them in writing, or any other way in which the memory of them will be preserved.
The rights of which the evidence is in this way endeavoured to be preserved, are mostly either rights to property in some shape or other, or rights to condition in life.
Preappointed evidence may be distinguished into original and transcriptitious.
Examples of articles of original preappointed evidence are—
1. Registers of deaths, births, marriages: these have been more particularly the objects of public care.
2. Instruments expressive of the different sorts of contract, in the most extensive sense of the word; including not only those expressive of obligatory agreements, but those expressive of conveyance, whether by deed at large, or by the sort of deed called a will or testament—a particular sort of unilateral conveyance, which is not to take place till after the death of the conveyer, and in the meantime is destructible or alterable at his pleasure: as also all other sorts of contract by which a contract of the sort first mentioned is, in the whole or in part, either destroyed or altered.
Examples of the transcriptitious species of preappointed evidence are afforded by the register offices established in and for Middlesex and part of Yorkshire, and the offices for enrolment belonging to some of the judicatories in Westminster Hall.
In the course of this book, the following are the topics proposed for consideration:—
1. Ends or objects that are or ought to be aimed at (viz. on the part of the legislator,) in relation to preappointed evidence.
2. Field of preappointed evidence: i. e. subjects of proof by preappointed evidence, considered in an aggregate view, and under subordinate divisions.
3. Advantages proper to be aimed at, and inconveniences to be avoided, in relation to preappointed evidence.
4. Description of persons to whom, and occasions on which, the institution of the same mass of preappointed evidence may be advantageous.
5. Means by which, in relation to the different subjects of proof (as above,) the general object in view may most effectually and conveniently be attained.
Objects or ends of preappointed evidence: Cases to which it is principally applicable.
Not judicature only, but all human action, depends upon evidence for its conduciveness to its end: evidence, knowledge of the most proper means, being itself among the means necessary to the attainment of that end.
Be the occasion what it may (it being one that calls for action,)—to possess a stock of evidence suitable to the occasion, is to possess correct and complete knowledge of all such matters of fact, the knowledge of which is necessary to right conduct—to a course of action suitable to that same occasion, whatsoever be the nature of it.
But, be the occasion (the sort of occasion and the individual occasion) what it may, the demand for such suitable evidence will be the same. So far as, without any special care taken in any part of the field on the part of the legislator, it be sure to spring up of itself, so far there is no need of preappointed evidence, or at least of anything to be done on his part towards securing either the existence or the aptitude of such preappointed evidence. If anywhere there be an actual deficiency, or a risk of a deficiency, it is then and there matter for his consideration, whether, by any exertions of his—by any provision made for that purpose, the filling up of such deficiency be at the same time practicable and eligible.
But, on a judicial occasion, as on every other, evidence in almost every instance is liable to prove deceptitious.
Hence two problems looking throughout for solution at the hands of the legislator’s guide:—1. How to secure the existence of true evidence; 2. How to guard the judge against deception, considered as liable to be produced by false, or in any other way fallacious, evidence.
Evidence being a standing object of research in every line of human action, and in particular in every department of government; it follows that, in proportion to the wisdom of the government, the endeavours on the part of the government to provide itself, in every part of the line, with an apposite stock of evidence, will be comprehensive and unremitted. So far at least as desire and endeavour are concerned, the sphere of operation, in respect of the securing the requisite provision of preappointed evidence, has no other limits than those of the entire field of evidence. Setting aside particular limitation, the general rule of practice would accordingly be, to lay in beforehand a stock of evidence applicable to all purposes, and producible on all occasions: in a word, to leave nothing to chance, to trust no operation to so slippery a ground as that of casual evidence—to cover the whole field of political action, as it were, with magazines of preappointed evidence.
Two considerations, and two only, serve to limit the exertions of government in this line,—impracticability, and expense.
1. In one class of cases, the nature of things (it will be seen) renders the success of such exertions hopeless. This is the case of delinquency in general. When you have said, whosoever does so and so shall be punished,—for the proof of the fact by which such punishment has been incurred, casual evidence is evidently the sole resource. The nature of man forbids us to expect that the child that has done amiss should, as soon as it has done amiss, come in of its own accord, and present its back to the chastising rod.
2. Expense is another consideration, which on this as on every other ground, sets limits to the operations of every prudent government. By expense, on this as on other occasions, I do not mean mere pecuniary expense, but evil, inconvenience, vexation, labour, in whatever other shape it presents itself. Gold itself may be bought too dear, is a consideration which, on this ground as on every other, is never out of the eye of a well ordered government.
Such are the two topics from which will be drawn whatever limitations present themselves as applying to the demand for preappointed evidence.
Looking over the field of evidence at large for objects admitting and requiring preappointed evidence, we shall find them reducible to three classes, viz.
1. Laws; viz. laws in the common acceptation of the word: rules of action which derive their tenor or their purport, as well as their binding force, from the legislator alone, without the concurrence of any individual hands.
2. Contracts; viz. the word being taken in the largest sense, in which it comprises not only agreements, legally obligatory agreements, but conveyances, or instruments expressive of transference of legal rights, and among conveyances, testaments.
These are in fact so many laws, obligatory rules of action, in the enactment of which the legislator and the individual concur; the individual furnishing the act of volition, and the expression given to it—the legislator furnishing the binding force, and (in quality of necessary conditions and concomitants to binding force) limits, and interpretation.
3. Facts; i. e. legally operative, legally important facts: facts to which the body of the laws, whether general or private contractual (as above,) have given the quality of producing or destroying rights or obligations: events or other facts collative (or say investitive,) ablative (or divestitive:) say, in either case, facts dispositive: these in the non-penal (called the civil) branch of law; add to which, in the penal branch, on the one hand, acts, events, and other facts, inculpative and aggravative; on the other hand, facts exculpative, extenuative, and (with a view to punishment independently of the consideration of delinquency or innocence) exemptive.*
Laws, whether of the purely public or of the private (or contractual) class, as above, have no other object, effect, or use, than in as far as they give birth or termination to rights or obligations: to rights purposely, as being the only beneficial products of law—to obligations necessarily, inasmuch as no right can be conferred or created without the creation and imposition of a train of correspondent obligations. But, throughout a large portion of the field of law, it is only through the medium of facts to which, in this view, the law has imparted those prolific and distinctive powers, that the law has it in its power to give birth or termination to rights and obligations.†
Of a very extensive and diversified mass of facts, the existence is habitually declared, and the remembrance preserved, by portions of written discourse committed to paper on the occasion of the acts performed in the exercise of the functions attached to the several established public offices, in books kept under the direction of the governing functionaries belonging to those several offices.
Of the several facts thus recorded, there is not one to which, in some way or other, it may not happen to have a legal operation, in manner above mentioned. So many offices, so many sources of evidence which without impropriety may be termed preappointed evidence.
The object to which the labour thus employed is principally, if not exclusively, directed, is very different from that of affording evidence on the occasion of a suit at law. But, be the object to which they are directed what it may, this is not the less among the objects to which these documents are capable of being, and in practice actually are, occasionally, if not habitually, applied.
Advantages and inconveniences incident to preappointed evidence.
Considered in a general point of view, and without reference to one more than another of the several modifications of preappointed evidence as already indicated,—the advantages deducible from it may be distinguished into those which are direct, and those which are collateral or indirect.
The direct, considering these modifications in the same general point of view, consist in neither more nor less than the effectuation of the objects already indicated under the character of ends in view—contributing on each occasion to give effect in practice to whatever rights and obligations the law has undertaken to constitute and establish. For, be the law as to its other parts what it may, the effect of it depends upon that part of it which concerns the subject of evidence.
Rules of action, expressions of will, whether of the nature of laws or legalized contracts, are capable of receiving, from the operation of apposite and preappointed evidence, advantages of a special nature, such as have no application to legally operative facts taken at large.
As between laws and contracts,—of those which apply to contracts, the catalogue, it will be seen, is the most ample.
Non-notoriety—viz. with relation to the persons whose rights and obligations are respectively affected by them—non-notoriety (including oblivion, which is but non-notoriety at times subsequent to that in question;) uncertainty in respect of their import; spuriousness, whether in toto (the result of forgery in the way of fabrication,) or partial (the result of forgery in the way of alteration;* ) incapacity, or unfair procurement in respect of their source (i. e. the condition and situation of the individual of whose will they contain the expression;) injury to third persons considered as producible by secrecy or privacy on the part of the contract,—i. e. by its non-notoriety with reference to such third persons as are concerned in point of interest to have knowledge of its existence:—such are the mischiefs to which contracts are exposed. Such accordingly are the mischiefs, in the prevention of which, the direct advantages deducible from the institution of preappointed evidence are to be looked for, in so far as contracts are concerned.
But, under the head of preappointed contractual evidence (preappointed evidence as applied to the case of contracts), these several mischiefs, in conjunction with their respective remedies (the application of which, as far as practicable—to wit, by the instrumentality of the formalities of which the essence of preappointed evidence is composed—constitutes the advantages derivable from the institution of the sort of evidence so denominated,) will be brought to view in detail.
The descriptions of persons to whose use or convenience the institution of preappointed evidence may on one occasion or another be found subservient, may be thus distinguished and designated:—
1. Individuals, considered in the character of persons invested or in a way to be invested with the rights, bound or in a way to be bound by the obligations, to the effectuation of which the article of evidence in question is calculated to be subservient: eventual parties in the suits which the institution is calculated to prevent; actual parties in those suits, if, notwithstanding the means of prevention thus employed, they take place; privies, i. e. persons respectively connected in point of interest, in some shape or other, with, and eventual representatives of, such parties; persons liable eventually to become parties in future suits, on the occasion of which it may happen to the same article of preappointed evidence to be found applicable; and the like.
2. The judge, considered as such, and in respect to the decision which he will have to pronounce on the occasion of such suits as above, when instituted.
It is in so far as persons of these descriptions, and standing in these situations, are concerned, that the uses derivable from the institution of the preappointed evidence in question may be termed direct.
3. The legislator. The manner in which preappointed evidence may be rendered conducive to the due exercise of the functions of the functionary thus denominated, will present itself in a particularly conspicuous point of view, in the case where the facts, the remembrance of which is in this way preserved, are produced by, or composed of, the transactions of the several public offices; and, still more particularly, of the transactions of judicial offices.
The uses thus capable of being made by the legislator of preappointed evidence, are those which have, as above, been brought to view under the denomination of the collateral or indirect uses; and consist in the furnishing him with data, with experience, by the consideration of which he may be enabled to render his operations in every department of the field of government, and more especially in the judicial, more and more conducive to what are or ought to be their respective ends.
Under the name of the statistics of the several departments (and in particular the department here more particularly concerned—viz. the judicial), may the branch of political science to which belongs the knowledge of facts of this description, tendency, and use, be with propriety designated.
Of the inconveniences incident to the institution of preappointed evidence, some will be found inseparably attached, in a degree more or less considerable, to the principle of the institution; others will depend more or less upon the particular mode or expedient by which the principle is pursued—the particular purposes endeavoured to be accomplished.
Delay, vexation, and expense—the inconveniences which (in a quantity varying from next to nothing, to a magnitude beyond endurance) follow in the train of every step taken by or under the authority of law—may be stated as the only disadvantages inherent in the institution under all its forms, in whatever mode the purposes of it are endeavoured to be accomplished, though in degrees dependent more or less upon the nature of the mode.
These may be ranked together under the head of general inconveniences: the particular inconveniences will stand in a clearer point of view, after the several modes or particular institutions, to which they seem respectively attached, shall have been considered.
The operations and instruments employed in the design (real or pretended) of securing, in relation to contracts and other expressions of will, the advantages derivable, as above, from the institution of preappointed evidence, seem to be comprehended under the general and generally-employed appellation of formalities.
The particular operations employed under this name seem comprisable under the following denominations, viz.
1. Scription (original scription:) viz.—expressing the meaning of the party or parties by a determinate assemblage of words, and those words made to receive permanence—permanence for any length of time that may be required: to wit, by means of the visible characters now for so many ages in general use for that purpose among civilized nations. For the importance of this operation, as applied to evidence, see above, under the head of Securities.*
2. Authentication†(i. e. declaration of the authenticity of the script in question) ab intrà. Under this head may be included whatever acts are done by a party of whose will the script purports to be the expression—done in the view of causing it to be known, that the will or conception of which it purports to be the expression is really his.‡
3. Authentication (i. e. declaration of the authenticity of the script) ab extrà. Under this head may be included whatever acts are, immediately upon the performance of some act of authentication ab intrà, done by some other person or persons, in the view of causing it to be known—not only that the will or conception of which the script in question purports to be the expression, is the will of the person of whose will it purports to be the expression—but also that such act of authentication has really been performed.*
4. Examination into the competence of the party or parties as to the entering into the contract: the examination considered as performable by the individuals by whom the act of authentication ab intrà is itself authenticated, as above. This is mentioned rather as a formality that might be used in some cases with advantage, than as one which actually has been introduced into practice.
5. Multiplicate scription, or transcription,—penning many scripts of exactly the same tenor—an operation which, as well in the way of writing with a pen as in the way of printing, has, by the exertions of modern ingenuity, been rendered practicable, as well at the same time as at different times. Whence the distinction, transcription simultaneous or subsequential.
6. Registration. This, considered as distinct from scription, means nothing more than conservation of the script or transcript, the original or the copy, in the custody and under the care of some determinate person or persons, in some appropriate repository allotted to that purpose.
7. Notification, competent and effectual; viz. communication of the script in question, including sufficient information of its tenor, as well as of its existence, to all persons concerned in point of interest so to be informed.
Such are the formalities applicable, and with little exception commonly employed, in relation to legalized contracts. Such, for the most part, are the formalities not in the nature of the subject incapable of being employed in relation to laws.
Laws, however, the direct work of a set of functionaries, all whose operations are habitually exposed to public view, are in general so circumstanced, that the operations above mentioned either have no application, or, if they have, take place and produce their intended effect as it were of course. But, in respect of three of these operations,—viz. scription, transcription, and notification,—practice will be seen to exhibit deficiencies too considerable to be brought fully to view in a work on evidence, and at the same time too important to be passed over altogether without notice.†
As to facts,—the class of facts already brought to view under the denomination of legally operative facts: of the seven distinguishable operations above spoken of, under the name of formalities, as applicable, and with advantage, to contracts, four only—viz. scription, transtription, registration, and notification—are applicable to the purpose of preserving the memory of facts thus taken at large.*
Among legally applicable facts, a distinction has already been made, distinguishing those which have come under review of official persons, occupants of the several established offices, private as well as public; inasmuch as they consist of acts done by or under the direction of those persons, or of facts which, on the occasion of such acts, were taken by them into contemplation. Scription, transcription, and registration, are operations which, in relation to facts of this description, have by the very supposition been to a certain extent performed. But, in relation to every such office, whatsoever other more direct purposes have been provided for by the extent which has happened to have been given to the mass so registered, it may still be matter of consideration, whether (to adapt it to the purpose of preappointed evidence) an ulterior extent, and in a suitable shape, might not in this or that instance be given to the mass, in such manner as to add to the services at present derived from it.
The facts and other transactions that are or ought to be preserved in remembrance under the direction of persons invested with judicial offices,—these judicial facts, together with the advantage which in various shapes might by the legislator be derived from the contemplation of them, are among the objects to which the above observation will be seen applying itself with a peculiar degree of force.†
Such being the operations capable of being applied with more or less advantage to the purpose of communicating, by means of preappointed evidence, the existence of the objects respectively in question,—by what means shall the perfermance of those several operations, in so far as they respectively promise to be subservient to that purpose, be endeavoured to be secured?
In each respective case, shall the performance of these several formalities be endeavoured to be rendered obligatory, according to present usage, by what is called pain of nullity, or by punishment in any other (and what) shape? Or, after indication given of such formalities as, in the case in question, promise, in the character of evidence, to be of use, and the doubts that will naturally be produced by the non-employment of them, shall observance be, in any and in what cases, left to the option of the parties interested?
To these questions, answers will be endeavoured to be provided, in so far as they have application to any of the several divisions that have here been made of the subjects of preappointed evidence. The subject of contracts is the only one to which they will be found to apply in such manner as to operate with practical importance.
[* ]Note, that the formation of an obligatory rule of action, whether law or legalized contract, is itself a matter of fact requiring to be established by evidence, as well as the existence of any of those legally operative facts which derive their operation from laws or legalized contracts.
[† ]If, for three pounds, the price agreed on, payable the first day of next year, a tailor makes for a customer a coat of a certain description, and delivers it to him; here may be seen a conveyance, coupled with an agreement obligatory. The whole contract, if such were the usage and it were worth while, might stand (as it would stand, if, instead of a coat, the subject-matter were a house) expressed in and by an instrument of contract, an article of concurrent preappointed evidence, framed by one of the two contracting parties, and recognised by both of them. What is the usage is, that a memorandum of the contract should be entered in one or more of the tailor’s account-books, forming an article of ex parte preappointed evidence, admitted directly and constantly in French law, not unless indirectly and precariously in English.
[* ]The subject to which this distinction between total and partial spuriousness has its application, is rather the collection of signs of which the instrument is composed, than the practical effect: since, by the alteration or insertion of a single word in a genuine instrument, an effect as completely and extensively injurious is capable of being produced, as by the making of one which shall be altogether spurious.
[* ]Book II. Chap. VIII.
[† ]Authentication, viz. extrajudicial: such being the occasion on which the operation is here considered as being performed. Judicial authentication forms the subject of another Book.
[‡ ]Modes of authentication ab intrà:—1. Holography; 2. Signature (onomastic or symbolic;) 3. Oral recognition; 4. Recognition by deportment. See Chap. II.
[* ]Were it not for this, the signature of an attesting witness might be applied to the instrument at any posterior point of time.
[† ]Vide infrà, Chap. VI.
[* ]Authentication, whether ab intra or ab extrà, and examination into competence, are operations which have no application but on the supposition of the existence of a person occupied in the production of expressions of will, of the number of those from which facts of the class here in question derive their effect and essence.
[† ]Vide infra, Chap. VIII.