Front Page Titles (by Subject) CHAPTER VIII.: OF OFFICIAL EVIDENCE, AS FURNISHED BY JUDICIAL OFFICES. - The Works of Jeremy Bentham, vol. 6
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CHAPTER VIII.: OF OFFICIAL EVIDENCE, AS FURNISHED BY JUDICIAL OFFICES. - 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 OFFICIAL EVIDENCE, AS FURNISHED BY JUDICIAL OFFICES.
Uses of the official evidence furnished by judicial offices.
Applying to all offices without exception, the matter of the last preceding chapter will be found to apply with no less propriety or advantage to judicial offices in particular. But, in that mass of evidence of which an office of the judicial kind is either the source, or the receptacle and repository, circumstances may be observed, by which, considered as the basis of judicial decision, official evidence will be seen to stand in the scale of importance upon a higher level than official evidence taken at large.
In the character of evidence to the judge, the application of official evidence taken at large is but collateral and incidental. The application of the evidence furnished by a judicial office is direct and constant: and this as well in the instance of that part of the mass of which the office (in this case the judicial office) is but the repository, as in the instance of that of which it is the source.
The information, which, under the denomination of evidence, is received or extracted by the judge, belongs not to this head: the character in which it comes under consideration is that of ordinary, not preappointed, evidence.
In respect of evidence of this description, the office is the receptacle, and, in so far as such is the usage of the office, the repository, but is not the source.
Of the evidence furnished, or capable of being furnished, by the judicial office, that which comes under the notion and denomination of preappointed evidence, is that by which the operations performed by the several dramatis personæ in the theatre of judicature, are, or may be, brought to view, and consigned to remembrance.
Among the operations in question, the principal class consists in the delivery of the various ready-written instruments which in the course of the cause come to be delivered; and where the delivery of an instrument to a certain effect is performed and commemorated, a natural course is, that the instrument itself, or a transcript of it, be preserved.
Instruments, in so far as received into the office, and kept there, record themselves: operations, if the remembrance of them is to be preserved in the office, require an official hand to record them. The instrument will show its own existence, but will not show of itself the performance of any operation performed in relation to it; for example, the time when, or the persons by whom, it was delivered or received.
The different uses to which it may happen to the same lot or article of judicial official evidence (i. e. of preappointed official evidence, having for its source an office of the judicial kind) to be applicable,—these different uses, as characterized by the different descriptions of persons by whom the use may be made—the service, the benefit, received—may be thus distinguished:—
1. Uses to the parties or their representatives; viz. in respect of their respective interests in the suit supposed to be in hand, the suit which gave occasion to the reception or recordation of the article of evidence in question,—or, if an instrument, the framing of it in the office, or the reception of it from without,—if an operation, the recordation of it. Here the judicial uses coincide with those which, in the case of an office other than judicial, have been designated under the denomination of the administrative uses.
2. Uses which respect the interests of the same or other parties in respect of future contingent suits, in which, if instituted, the evidence in question may eventually be found applicable.*
3. Uses to the sovereign and legislator: consisting in the furnishing such information as may serve as a basis for any such ulterior regulations as from time to time may serve to render the proceedings of the several judicatories, as well as the several portions of substantive law to which it is their duty to give execution and effect, more and more effectually subservient to the several ends of justice: these may be distinguished by the term statistic uses.
I. Uses to the parties in respect of the suit in hand:—
Each operation requires to be consigned to remembrance for three purposes—1. That it may serve as a basis for the next operation which it may render necessary or advisable to be performed, whether on the same side of the cause or on the opposite side;* 2. That it may be seen whether the operation thus performed was proper in itself, and performed in a proper manner; 3. That, in case of any impropriety, it may serve as a ground for satisfaction to be render for any such wrong as may have been produced by the impropriety—satisfaction, or even punishment, if the wrong be of such nature as to create a proper demand for punishment.
Under a system of which justice is the object, the operation which, in the ordinary course of things, will naturally come to be registered at or near the outset of the cause, will be the appearance of both the parties in the face of each other and the judge: the next, saving such memoranda as it may have occurred to the legislator to prescribe to be made and preserved for his own use (of which presently,) will be either the decision pronounced by the judge, or the existence of some circumstance which, creating a natural and just demand for delay, would have rendered such immediate decision repugnant to one or other of the direct ends of justice.
Under a system of which the object is injustice, in the shape of factitious delay, vexation, and expense, for the sake of the profit extracted to the use of Judge and Co. out of the expense,—the operations that come to be registered will be those needless and useless operations which serve as pretences for enhancement of the expense, or for the creation of that delay and vexation, the faculty of inflicting which, with the chance of consequent misdecision, constitutes the encouragement afforded to the malâ fide litigant on either side to drag along with himself his injured adversary through the kennel of litigation: and of these there is no end.
II. Uses to future contingent parties, in respect of future contingent causes:—
In regard to contingencies of this description, the desirable effect (the door to the temple of justice not being shut by factitious delay, vexation, and expense, or exclusion of instructive evidence,) the best possible effect is, that they come not into existence: the next most desirable effect is, that, coming into existence, they receive a decision as conformable as possible to the direct ends of justice, and at the same time as clear as possible from collateral inconvenience in the shape of delay, vexation, or expense.
To these purposes taken together, the knowledge of the following facts, of the number of those which have actually had place on the occasion of the several causes already instituted, is manifestly subservient:
1. Knowledge of the several facts, ignorance of which, or misconception or uncertainty in regard to them, may, on one side or other, give birth to ulterior suits either between the same parties or between other parties: for instance, that Titius, by his last will, declared it to be his desire, that, upon and after his decease, Sempronius should be proprietor of the field therein described.
2. Application that has been made of the law (viz. by a decision pronounced on the occasion of the past cause) to the fact or facts that were deemed established by sufficient proof on the occasion of that same suit: for instance, that the desire so expressed by Titius was by a judicatory adjudged to be valid, and conformable to law.
III. Uses that bear reference to the legislator, as the functionary by whom the application of the information thus obtained comes to be made,—bear reference to the several ends of justice so often spoken of as the objects to which the operations grounded on such information should be directed:—
If the system of judicial procedure has been already framed by him and established by law, his direct object in the collection of the information under this head will be to see in what particulars it is subservient in the utmost possible degree to the ends of justice, and in what particulars (if in any) it fails of being so: to the end that, in so far as it fails of being so, the failure may be obviated.
If the system of procedure has, in the whole or in any part, been the work not of himself but of the judge, acting according to rules expressed in terminis, or not so expressed; then, over and above the correction of any such failures as may in this way present themselves to view in the system thus established by an improper hand, is the giving it its establishment by his own the only proper hand—giving, in determinate words of his own choosing, expression to those rules, where as yet they had none; where it has already received such expression, and that an expression conformable to his views, giving to it the sanction of his authority in express words.
Under a great variety of subordinate heads, information—useful information, may, by the skill and probity of the legislator, be drawn from this source. But, in each instance, its title to the reputation of utility will depend upon its subservience to some one or more of the ends of justice. Hence, under whatever such head information is sought, the propriety of seeking it will find its test and demonstration in the designation of that one or more of those ends to which it is subservient; and, if not sufficiently obvious, of the means by which—the way in which, its tendency to such subservience manifests itself.
To give a complete list of the several heads of information thus capable of being made subservient to the ends of justice, would be a difficult, and in the present work a misplaced, task. For illustration, the following examples may serve, arranged under those ends of justice to which they may respectively be found subservient:—
I. Prevention of misdecision to the prejudice of either side of the cause.
1. Total number of causes in which the decision turned on the question of fact.
2. With this total, to compare the number of the causes in which evidence of an inferior quality was received, distinguishing between the several causes of inferiority: noting whether the inferior evidence was or was not the only evidence on that side; and whether the decision was in favour or disfavour of the side on which the inferior evidence was produced.
The number of causes individually taken, in which (choosing any given period) the decision was in favour of the inferior evidence, will show the utmost possible amount of the mischief resulting, within that period, from the admission of such inferior evidence.
Comparing period with period, say year with year,—if the number of such cases, individually taken, were constantly upon the increase, it would afford a ground for suspecting, that, by the admission of such inferior evidence, wilful falsehood, deception, misdecision, and thence encouragement to injustice, on the part of individuals, had been produced. Supposing no such increase, or none but what might be satisfactorily accounted for by accident or other causes; it would then be made manifest, that by such admission no such evil consequences had been produced.
3. Number of the appeals from decisions grounded on the question of fact: distinguishing between the cases in which the decision of the subordinate judicatory was, by the superordinate, affirmed purely and simply, and those in which it was either reversed or modified; and—in case of divers appeals grounded on the same original decision, and presented to different judicatories, taking cognizance one after another of the same fact—showing the number of such successive appeals.
If, in each instance, the evidence be exactly the same, and presented in the same shape; then, upon the supposition of consummate wisdom and probity on the part of the judicatory ultimately resorted to in each case, together with sufficient ability in each instance, on the part of the losing side, to carry the cause before an ulterior judicatory,—all these assumptions being made, the proportion between affirmed and reversed or modified, would exhibit the degree of aptitude, in all shapes taken together, on the part of the respective subordinate judicatories.
II. Prevention of preponderant or superfluous delay, vexation, and expense. Showing, in and for each suit, the quantity of delay, vexation, and expense, on both sides of the cause; distinguishing, in the case of each of those three modifications of collateral inconvenience, the portion which was natural and unavoidable, from the portion, if any, which was fictitious and avoidable: and, in regard to that fictitious part, distinguishing between the several portions which were respectively the work and the fault of the system (the established system of procedure,) the party or parties, or the judge. And—in case of different judicatories, to the cognizance of either or any of which the same individual cause might, at the option of a party, on the one or the other side of the cause, have been presented, whether acting under the same or a different system of procedure—serving to show, in respect of the quantity of delay, vexation, and expense in each, the difference between judicatory and judicatory: and thence, in these several shapes, the quantity of factitious injustice, which, in the instance of those judicatories in which it has been greatest, presents itself as chargeable either on the system or on the judge.
III. Prevention of contraventions against the remote ends of justice. Showing for each period, on the part of the several judicatories, the number of contraventions, if any, against the unimmediate or remote ends of justice; viz. 1. Against obedience to the several manifestations of the will of the legislator—judicial non-conformity at large, and judicial disobedience manifesting itself in the particular shape of usurpation of jurisdiction, to the prejudice of the authority of other judicatories (whether superordinate, co-ordinate, or subordinate to the judicatory so usurping;) 2. Against uniformity of decision as between judicatory and judicatory—mutual discrepancy of decision.
IV. Prevention of judicial injustice in all shapes together. Showing, for each period, the number of causes of the several species, non-penal and penal: and therein and thence, the aggregate amount of the delay, vexation, and expense actually produced; together with the utmost possible number of the instances of misdecision, which, to the prejudice of either side, can have been produced: showing thereby, as between period and period, the increase or decrease of injustice and delinquency in its several shapes, with a view to the demand, if any, for ulterior exertions in the line of legislation.
V. Melioration of the law, whether in respect of matter, or form: i. e. showing the demand for fresh law, or fresh expression to be given to this or that portion of already existing law.
The ways in which recordation might be made subservient to this purpose are—
1. Exhibiting the several cases in which a question of law (grounded in this case on statute law) had any place in the dispute between the parties; and in each instance showing the point or points in dispute, reference being made to the several portions of law relied upon on each side, together with the considerations brought forward in the way of argument on all sides.
2. In cases of appeal, exhibiting the ground of the appeal, and the number of stages of appeal, if more than one, in the instance of each cause; and, on each occasion, the treatment given, whether in the way of affirmance, reversal, or modification, by the superordinate judicatory, to the decision of the subordinate.
From the point or points in dispute, compared with the words of the portion of law which formed the ground of the dispute, it would be in each case apparent whether any demand had presented itself for fresh law (viz. law fresh in substance,) or only for fresh expression to be given (viz. for removal of ambiguity or obscurity) to this or that portion of existing law: the melioration being in each case to be made by defalcation, addition, substitution, or transposition, as the nature of the exigence requires.
In so far as, by incapacity, indolence, negligence, or corruption, on the part of the legislator of the day, the rule of action is left in the barbarous state of the species of imposition called unwritten law,—the people, in their character of suitors, being (such of them as are honest) habitually, for the benefit of that partnership of which the judge is at the head, and of which the legislator is the accomplice or the dupe, punished for non-conformity to rules which, lest they should be conformed to, are not permitted to be known;—in such case, the number and place of such appeals will, to the legislator of some happier time, afford useful indications, pointing out to him the particular portions of the field of law, in and by which the demand for real and genuine law has thus rendered itself manifest.
The demand for a really existing and accessible standard of obedience, co-extensive with the whole field of law, can be no secret to any one who on this head will permit himself to listen to the most obvious dictates of common sense. The light reflected on this subject by recordation, consists in nothing more than a distinct indication of the particular instances in which this undeniable truth will thus have been brought to view.
There remain two masses of injustice, the quantity or limits of which cannot be shown for any period, in a direct way, by any such documents as the above;—viz. 1. The number of instances in which, in the shape of oppression or extortion, injustice has been produced by an opulent individual in the character of plaintiff; to the prejudice of one who should have been defendant, but was debarred by the load of vexation and expense from the faculty of defending himself. 2. The number of instances in which injustice was committed, and with success, for want of litigation; the wrong-doer trusting to the inability of the party wronged to take upon himself the character of plaintiff with effect.
In a direct way, and in the several particular instances in which injustice thus produced has taken effect, no particular documents can show its amount: but a conception of the aggregate mass may be deduced from the computation of the quantity of money necessary to defray the expense of a suit on both sides, compared with the quantity which it is possible for a father of a family, in the condition of the most numerous class, to have at command for this purpose.
Neglect of English judges and legislators in regard to this kind of preappointed evidence.
If such as stand above exhibited are indeed the duties of the legislator and the judge,—negligent in the extreme—culpable, and at the same time cruel in the extreme, on this important ground, has been the conduct of English judges and legislators. Were an inquiring mind to turn its eye on this occasion to Westminster Hall, what would it see? A correct, a clear, an all-comprehensive, an easily and cheaply accessible, body of evidence, adapted to the exigencies of all suitors, in all sorts of causes? Alas, no! but instead of it, a parcel of disjointed fragments, composing an imperfect and confused and shapeless mass, stained throughout with mendacity, and drowned in nonsense. What, then, has been the conduct of these high-seated possessors of delegated power? Like savages waiting for a wreck, or rather like insurers making secret preparations for the manufacturing of a wreck, instead of making provision by their own industry for the requisite supply of evidence for their own use, they have lain by, and punished suitors for the deficiency—punished them for the not having produced that precise sort or individual lot of evidence, which, to the exclusion of whatever was attainable, they were, by an unpromulgated resolution of their own, predetermined (or rather, in the way of an ex post facto law, such as are all decisions of common law in new cases, these ministers of justice were post-determined) not to accept. They leave undone the things they ought to have done; and from this negative trespass it is, that they derive the faculty of doing those things which they ought not to have done—of denying justice, of working injustice, of producing delay, vexation, and expense. If, in the mouths of such exalted and privileged sinners, the established and commanded confession had any useful meaning, how copious might it not be when pointed to this quarter of the official decalogue!
Confounding everything that requires to be distinguished, the nomenclature of English jurisprudence includes under the same general name (records,) and without any names of specific distinction under it, instruments exhibiting judicial transactions, and instruments exhibiting public official contracts, public contractual writings of the more important kinds, king’s grants (conveyances in which the king is grantor,) &c.
Distinguishing, on the other hand, by an arbitrary and shifting line, two classes of objects between which there is neither any natural, nor so much as any promulgated or perceptibly instituted difference,—it has divided courts into courts of record, and courts not of record. And what are the courts not of record? Any inferior courts, on the proceedings of which, the two superior purely law courts at Westminister Hall bestow but an inferior degree of credit. And, among those inferior courts, which stands first upon the list? The Court of Chancery, of which the daily functions are to impede and overrule the decisions of them both.*
The Court of Chancery not a court of record? Why so, any more than the two great common-law courts under the same roof—the King’s Bench, and Common Pleas? Is it that it keeps no records, or that its records are framed or kept with less care? Let him answer, who has occasion and power to know. One thing I will venture to say: that, in the memorials of the instruments and acts ascribed to the court, or to any member of it, of whatsover class, there is at any rate less mendacity and nonsense in the court that proceeds upon the Roman model, the court not of record, than in the courts which proceed upon the Anglo-Gallo-Norman model, the courts of record.
On this head, the efforntery and imposture of English judges, and of one in particular, who is in possession of serving as an oracle to the rest,† presents a lesson which will not be deemed undeserving of regard, unless where the bosom is by sinister interest fortified against it.
Geometrical propositions he had heard spoken of, as composing a class of propositions to which men’s assent was wont to be engaged by arguments or evidences universally regarded as irresistible, and on the truth of which, without danger of error, the most confident reliance might be placed. Under the name of diagrams, he had heard spoken of a species of figures or graphical representations, employed for the expression of those propositions, and of the arguments from which the verity of them is inferred.
From the first month of his application to the study of the English laws, what from first to last is known to every man who applies himself to the study of that most corrupt of all systems of law, must have been known to this oracle of English law; viz. that, of the sort of instrument or document called by English lawyers a record, so far as concerns the judicial class of records, a considerable part is in every instance a tissue of falsehood—unworthy of all credit, in fact not meant to be believed, and which would therefore be as innoxious as it is absurd, were it not for the obscurity and ambiguity, uncertainty, deception, and misdecision, which is the result of the entanglement in which truth and falsehood together have so studiously and effectually been involved. What could not have been unknown to this projector, and in part executor, of a complete abridgment of English law, was, that the falsehoods contained in those pretended repositories of truth had from first to last been habitually applied, as they continue to be applied, to the purposes of depredation for the profit of the judges.
But the more abundant and mischievous and profitable the falsehood was—mischievous to the people, profitable to the authors and their confederates—the more urgent the need of straining every nerve, of heaping falsehood upon falsehood, for the purpose of rendering incurable the blindness of the people, and causing them to venerate this tissue of pernicious falsehood, as if it were a body of pure and spotless truth.
Accordingly, at the outset of his treatise on evidence, these repositories of notorious falsehoods are without limitation spoken of under the rhetorical and sophistical denomination of diagrams (diagrams for the demonstration of right,) and as composing a species of evidence, in comparison with which all other evidence is weak and unsatisfactory—a species of evidence possessing the attributes of certainty and infallibility,—those attributes which in truth are radically incapable of entering into anything that ever went by the name of evidence.
[* ]These uses may, both of them, in a certain sense, be termed uses to the judge, the administrator of the department to which these offices belong: but, in this instance, the uses derived from them by the administrator do not come altogether so close to him as in other instances.
[* ]Thus, where the altercation is carried on in writing, the delivery of an instrument of demand on the plaintiff’s side will naturally have the effect of imposing on the defendant’s side the obligation of delivering an instrument of defence. On the other side, the having given to the other party notice of an intention to deliver in an instrument to this or that effect, will naturally have the effect of imposing on that same side the obligation of performing the operation in question in pursuance of such notice.
[* ]As to the Court of Exchequer, being a sort of motley court—one side of it a law side, the other an equity side,—it must, according to principle, be neither a court of record only, nor a court not of record only, but both together.
[† ]Lord Chief Baron Gilbert, in his Treatise on Evidence.