Front Page Titles (by Subject) CHAPTER VI.: OF PREAPPOINTED EVIDENCE, CONSIDERED AS APPLIED TO LAWS. - The Works of Jeremy Bentham, vol. 6
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CHAPTER VI.: OF PREAPPOINTED EVIDENCE, CONSIDERED AS APPLIED TO LAWS. - 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, CONSIDERED AS APPLIED TO LAWS.
Preappointed evidence having been considered (as above) in its application to legalized contracts—to those private sorts of laws, in the establishment of which the legislator and the individuals empowered by him operate in conjunction,—we come now to speak of the same principle considered in its application to laws in the common acceptation of the word, viz. those rules of action, in the establishment of which the legislator operates alone.
Naturally, the consideration of the simple object should have preceded that of the complex. But, by bringing to view the subject of legalized contracts in the first instance, an object of reference and comparison was set up, by which, now that the application of the principle to laws is brought upon the carpet, suggestions not uninstructive may be afforded.
Of the four evils, to the prevention of which the application of the principle has been seen to be capable of being directed in the case of legalized contracts, there are two—viz. spuriousness and unfairness—to the prevention of which, in the case of laws, it is in the practice of nations so generally and habitually directed, that the application of it can scarcely be considered as an object of inquiry belonging to the present work.
There remain two other evils; viz. non-notoriety with respect to existence, and uncertainty with respect to import. Happy the lot or mankind—much happier than, in England more especially, it is in a way speedily to be—if, for the defence of the community against these crying mischiefs, the principle of preappointed evidence had received the all-embracing application it is capable of, or even a degree of application equal in extent to that which it has received in the case of contracts.
In the case of a contract, scription, considered in the character of a security against non-notoriety in respect to the existence of the contract and uncertainty as to its import, suggests itself naturally to individual reason; and would, by individual reason, be, in an extensive degree, even without the intervention of legislative authority, adopted.
When the practice of the art of writing had begun to be to a certain degree general, in such sort that any factitious demand for service in this line seemed no longer in danger of not being followed by supply,—the legislator was, with few or no exceptions, among the civilized or civilizing nations of Europe, seen to interpose his authority: converting into a legal obligation a precaution to which, till then, had belonged no other origin than individual prudence.
In the instance of individuals, this precaution, in so far as freely adopted, had for its manifest and indisputable final cause, the prevention of those evils. But on the part of the legislator,—at any rate on the part of those by whose counsels the hand of the legislator was on this occasion put in motion and guided,—this precaution had no such final cause.
The class of persons by whose counsels the hand of the legislator was at that time, and in general, throughout the civilized part of the world, continues to be, guided, were and are professional lawyers: men who, whether in their original character of advocates, or in their subsequential and superior character of judges, were and are, under the influence of the fee-gathering principle, knit together into a compact body by the strongest and most indissoluble ties—by one common interest, impelling them in a direction in almost every turn opposite to the interest of the community over which they rule, and which they profess to serve.
Individuals, in the use spontaneously made of writing, had of course (as above mentioned) for their object and final cause, the prevention of the evils above mentioned; viz. non-notoriety (including oblivion) in regard to the existence of the contract, and uncertainty in regard to the import and effect of it.
Lawyers, the persons by whose counsels the hand of the legislator was guided, had not,—in the nature of man they could not have had,—any such object. Their object was, the making of power, influence, and profit for themselves; i. e. the making of business—in their case the natural, and naturally the sole, parent of that amiable progeny. So accordingly they ordered matters, that what they had ordained to be written, none but a lawyer could be supposed to be, indeed scarce any could be, competent to write.
Had the prevention of those evils—or of any evils other than the only one to which, in their situation, it was in the nature of man that their sensitive faculty should be sensible, viz. insufficiency of business—been in their wishes and endeavours,—the anxiety thus manifested by them to see those same evils prevented, in so far as liable to have place in the case of those expressions of will in the formation of which the individual and the legislator were acting in conjunction, would have applied itself, and with equal force, to all those expressions of the will, in the formation of which the legislator (by himself, or his subordinates and substitutes the judges) acts alone.
But, in regard to the rule of action, by whomsoever framed, the real object has ever been (what, under such circumstances, it never can cease to be) not the prevention of uncertainty, but the increase of it. Hence it is, that, throughout the sphere of their influence, but nowhere with so much zeal and success as under the British constitution (under which their influence has by a concurrence of causes been rendered in a peculiar degree extensive and irresistible,)—it has been a rule of conduct with the legislature to leave the rule of other men’s action in a state of as complete uncertainty, or rather inscrutability and non-existence, as possible.
Instead of declaring, himself, what, on each part of the field of his authority, his will is, the course which, under the direction of these his treacherous guides, he has so assiduously pursued, has been to abstain from making known his will, or so much as forming one.
Everywhere (but nowhere among civilized men so completely as in Great Britain,) he has given up his subjects to the tormentors: he has given them up to be tormented without mercy, and in all imaginable ways, for non-compliance with a will which it has been the care of the tormentors should never be declared, nor so much as formed: tormented for non-compliance, where compliance was and is (having been studiously and effectually caused to be so) impossible.
Not but that there has all along been a pretended rule of action—a pretence for vexation and pillage never wanting. But this pretended rule of action, what has it been—what is it? A mere phantom—a figment of the imagination; in the composition of which the legislator himself, whose will it is pretended to be, has never had any the smallest share.
Dragged under the rod (though, where anything is to be got by excluding him, neither compelled nor suffered to come into the presence) of one of these lawyers or companies of lawyers,—a man is in one or other way vexed, and always by them and for their benefit, on pretence of his not having done something which he was never commanded to do, or having done something which he never was commanded not to do. Under the name of punishment, or under some other name, he is thus vexed: and, from such observation as men cannot be prevented from taking of the individual case in which the man is thus vexed, other men are left to frame to themselves, as they can, the conception of a law or rule of law: a rule or law completely imaginary, not framed by the legislator, nor so much as by the immediate author of the vexation, the judge: an imaginary law, such as, had it been real, might have warranted the decision under and by virtue of which he is thus vexed.
Where the rule of action is in the form of common law, there is no such thing, properly speaking, as a law, a general law: there is no such thing as any act of the legislator, any expression of the will of the legislator, in the case. The judge, to warrant his proceeding, is forced to have recourse to fiction—to feign the existence of a law, and, upon the ground of this imaginary law, to proceed as if it were a real one. He takes a survey of the cases that present themselves as bearing the closest analogy to the particular case in hand; he observes the decisions that have been pronounced by judges, by himself, his colleagues, or their predecessors, on the occasion of those cases; he considers with himself what the tenor or purport of a law would have been, supposing a law, a real law, made in terms such as would have warranted the decisions that (as above) he finds to have been pronounced, together with the decision which, in the case in question, he proposes to himself (on the presumption of its conformity to the general complexion of those decisions) to pronounce; and, upon this feigned law, the work of his own imagination, he passes judgment as if it were a real one.
Ask them in what words this pretended will stands expressed:—no answer; for answer is impossible.
Ask them at what time, in what place, it was formed and expressed:—still the same necessary silence.
Ask them by whom made or by whom expressed:—either silence or stark falsehood. Was it by them, or any of them? God forbid! they know their duty better: their bounden duty, their only right, is, not to make law, but declare it. Declare what? Declare that to have been made, which to their own perfect knowledge never was made? Give their own fictions, their own interest-begotten falsehoods, for realities?
Such is the phantom, the god of their own making, to which, under the eye of a conniving legislator, they compel obedience, or rather submission, on the part of his subjects; and in the name of which those too-patient subjects suffer themselves to be tormented, as if it were of flesh and blood. This is that idol, so indefatigably bedaubed with praise, in comparison with which all other praise is cold:—the wisdom of ages—the perfection of reason—that of which reason is the life.
Well might they cause it to be ordained, that contracts (those declarations of individual will to which they profess to give binding force) should be in writing, and thence provided with determinate assemblages of words for the expression of them: since, whatever degree of certainty might have been produced by those portions of written law, is obliterated by the patches of this species of unwritten unformed law, with which they are everywhere overlaid. The contract, which forms the apparent and pretended rule of action, is visible: but the practice, or conjectural rule of law, by which it will be found to have been annulled, or misinterpreted, or interpreted away, is not visible; nor can the effect of it be known, till, after the substance of the parties has been consumed in litigation, the existence of this rule is declared, that is to say, the rule is made, by the judge.
Thus it is, that, by requiring contracts to be in writing, they have thrown profit into their own hands. Had certainty been produced, their mass of profit would have been diminished. If, under such strong inducement to the contrary, certainty had been given by one branch of the partnership to the contract as it stood upon the face of its own words, that certainty would by another, the higher banch of that same partnership, be overruled and done away: by dint of nullities, seconded by a set of mutually conflicting and universally flexible rules of interpretation or construction, as they are called, and other unpromulgated, and unenacted, and spurious laws, of the same fantastic fabric: laws, which are neither laws of nullification nor laws of interpretation.
By notification of contracts themselves, nothing effectual is done—no security afforded, any further than as the effect which those contracts will have, is made known. But the effect of those contracts can no further be made known, than in so far as, in effect, and (to that end) in tenor, those rules are made known, by which the effect of the contracts is obliterated or transmuted.
But, by causing the tenor of these rules (that is to say, of any rules that have been or could be framed and settled in relation to the subject) to be consigned to determinate assemblages of words,—and thus, in manner as above proposed, or in any other manner, brought home, on the occasions which call for their being acted under, to the mind of those whose lot in life is made to rest upon them; by any such course, the real object of the whole system would, to so wide an extent, be counteracted and defeated: and hence it is, that as well those as any other arrangements, the effect of which would be to render knowledge possible, where ignorance has been made fatal, will, till they are accomplished (should it be their lot ever to be accomplished,) be reprobated, and pronounced (as everything that is good ever has been, and ever will be, by those to whose sinister interests, and interest-begotten prejudices, its aspect is unfavourable) to be theoretical, and speculative, and visionary, and mischievous, and impracticable.
When, by proper authority (by the authority of the legislator,) a law is abrogated,—the fact of its abrogation is no more exposed to doubt than the fact of its enactment: the same evidence, the same preappointed evidence, that serves for the establishment of the one fact, serves for the establishment of the other.
When, by improper, by usurped authority—by the authority of the sworn servant of the legislator, the judge, overruling and contemning the authority of his master—any such power is exercised,—confusion, confusion ever delightful and profitable to the authors of it, is the consequence.
By some compiler or copyist of statutes, the date of whose labour stands antecedent to the invention of printing, laws anterior to the reign of Henry III. were (at whose, if at any one’s, suggestion, or by what authority, is now undiscoverable) omitted. By this man, whoever he was, all those ancient laws were abrogated in the lump—abrogated, to use the language of Scotch law, by desuetude.
But desuetude is not a person, a legislator by whom laws can be abrogated: abrogated on pretence of desuetude, a law cannot but have been abrogated by the judge.
In Scotland, the expression of the will of the legitimate legislator is thus abrogated—abrogated ad libitum, by the judge, the Court of Session: abrogated, in virtue (it should seem) of what in Latin they call their nobile officium,—in English, the right, the avowed right, of doing what they please.
If in England this right has been no less constantly, and to a still greater extent, exercised, and by corresponding authority, it has never been avowed; it has as constantly been all the while disavowed and disclaimed.