Front Page Titles (by Subject) CHAPTER IX.: OF PREAPPOINTED EVIDENCE, CONSIDERED AS APPLIED TO LEGALLY-OPERATIVE FACTS AT LARGE. - The Works of Jeremy Bentham, vol. 6
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Also in the Library:
CHAPTER IX.: OF PREAPPOINTED EVIDENCE, CONSIDERED AS APPLIED TO LEGALLY-OPERATIVE FACTS AT LARGE. - 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.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
OF PREAPPOINTED EVIDENCE, CONSIDERED AS APPLIED TO LEGALLY-OPERATIVE FACTS AT LARGE.
Use of registration, as applied to legally-operative facts.
By the denomination thus assigned, the facts in question are distinguished from all others, and at the same time the reason why they ought to be had in remembrance, and placed upon the rank of preappointed evidence, is brought to view.
If, in the instance of any given right or obligation undertaken by law to be established, it be necessary to justice and the general welfare of the community that it be established and carried into effect,—it will be equally necessary that the existence of that evidence, without which such effect cannot take place, should be secured. But, even although in any such instance the effectuation or frustration of such right or obligation were in itself a matter of indifference, still the existence of preappointed evidence, of a nature to secure the effectuation of such right or obligation, would not be matter of indifference: for, of such evidence, when by means of it the fact evidenced by it is known to have had place, the effect is to prevent litigation, by rendering it on one side hopeless: while, of the want of such evidence, a natural and frequent effect is, the rendering it matter of doubt whether the fact had place or no; of which doubt, litigation, with the vexation and expense attending it on both sides, and the disappointment on one or both sides, is the bitter fruit.
But, in many instances, such registration, howsoever desirable, will be found unattainable: and in particular, in every instance in which the effect of such registration would (whether on a non-penal or on a penal account) he unfavourable to the only individual or individuals from whom the information of the fact could for that purpose be obtained.
Moreover, in many instances, such registration, though of itself desirable, might be upon the whole prudentially or even physically impracticable: physically, because there exists no person by whom the process of recordation could be performed; prudentially, because, it any person exist by whom it could by possibility be performed, there exists no person by whom it could be performed in a proper manner—i. e. in such manner as to render it more likely to be preventive than promotive of consequent misdecision, and at the same time without being productive of preponderant collateral inconvenience in the shape of vexation and expense.
The cases in which, as above, such recordation is impracticable (physically impracticable,) require to be noted, were it only for the purpose of bringing to view the limits opposed by necessity to the exertions of legislative providence in this line: to the end that the legislator may not be subjected to the imputation of negligence, for not aiming to overleap the boundaries of possibility; and at the same time, that he may not seek, in the impossibility of making provision to this effect in some instances, an excuse for omitting it in cases to which the natural and inseparable bar does not extend itself.
From what is above stated, five rules present themselves as proper on the part of the legislator to be kept in remembrance:—
1. To look out for such different descriptions of legally-operative facts as may be found susceptible of recordation,—viz. without preponderant inconvenience, as above.
2. To look out for such persons as, being fit in point of qualifications (intellectual as well as moral,) may, on each respective occasion, either be found, or without preponderant inconvenience rendered, in each case, willing to undertake the charge.
3. On each occasion, to make provision such as the case admits of for the verity, for the correctness and completeness, of the statement so recorded.
4. To consider with himself and determine what legal effect shall be given to the preappointed evidence thus collected and preserved.
5. To make due provision for adapting to his own use, in every practicable shape, the information which has for its more immediate object the giving effect to the rights established for the benefit of the particular individuals, on each respective occasion particularly considered: in a word, to apply it in the aggregate to the statistic uses of which it is susceptible.
Facts calling for registration, what?
I. Facts of a regularly occurring nature;—viz. such as—though, individually taken, not—yet, taken in specie, their recurrence may be considered as certain.
1. Facts affecting condition in life. Take for example, the articles of principal importance, which appear as follows—1. Deaths; 2. Births; 3. Marriages:* to which may be added, though comparatively casual—4. Arrivals at majority; 5. Declarations of insanity; 6. Declarations of dissolution of marriage, otherwise than by death; 7. Entrance into contracts of apprenticeship; 8. Dissolution of such contracts, otherwise than by expiration of the term; 9. Entrance into partnership contracts; 10. Dissolution of partnership contracts; 11. Appointments to official situations; 12. Removals from official situations.
2. Facts collative and ablative with relation to contracts taken in the largest sense: including the making of wills, and other conveyances.
1. Entrance into any contracts other than the above.†
2. Dissolutions or modifications of contracts: in the several ways, by which the several sorts of contracts, according to their respective natures, are capable of being dissolved or modified,—such as expiration, performance, receipt of money, &c.
In regard to entrances into contracts, and dissolutions of contracts,—whether it be eligible upon the whole that registration should take place, will depend upon the joint consideration of the importance of the contract,—the probability of non-notoriety when notoriety is requisite, and of oblivion when remembrance is requisite,—and the vexation and expense attached to the operation of recordation; taking into the account of vexation, whatsoever unpleasant circumstances may be the result of disclosure. See above, Ch. II. On Contracts.
II. Facts of casual occurrence: casualties, taken in the largest sense.
1. Deaths;—viz. when by means of marks of violence or other extraordinary appearances, a suspicion is afforded that human agency (positive or negative) may have been contributory to the effect.
2. State and condition of persons or things, in consequence of deterioration supposed to be the result of delinquency:‡ together with any other circumstances, the remembrance of which may, for want of speedy recordation, stand exposed to deperition.
3. So, where supposed to be the result of physical calamity,—in so far as, in consequence of such result, fresh rights and obligations, at the charge of this or that individual, may come into existence. Thus, by the calamity of fire, a right may accrue to the proprietor of a house, attended with a correspondent obligation at the charge of an occupier or an insurance office.
4. To the list of facts of casual occurrence may be added (in the character of facts the recordation of which, in the same mode and by the same hands, may be subservient to the purposes of justice) any facts so circumstanced, that the means of presenting them to the cognizance of the judge may be wanting, unless the testimony of such persons as (from the having stood in relation to them in the character of percipient witnesses) are competent to speak to them in the character of deposing witnesses, be collected at a time in which the collection of it in the ordinary and regular mode is impracticable: the percipient witness, for example, on the point of leaving the country, and the stopping of him either physically, or, in respect of preponderant inconvenience in the shape of vexation or expense, prudentially, impracticable.
Registration, by whom performable?
In each case, the propriety of the choice will depend upon two circumstances:—1. The trustworthiness of the person, regard being had to the particular species of fact in question; 2. The vexation and expense, if any, attached to the employment of such person in such case.
The trustworthiness of the functionary (meaning the relative trustworthiness, as above) will again depend on the importance of the fact, coupled with the nature of the securities thought fit to be employed for securing the verity (i. e. the correctness and completeness) of the evidence necessary to enable the recordation to fulfil the purposes for which it is intended: of which in the next section.
If the form of the entry be reduced to a certain degree of simplicity—and if, in a form thus simple, the mode of recordation be adequate to the fulfilment of all its purposes,—mere moral trustworthiness, including in that view responsibility in both its senses, may be the sole object of regard: but if intellectual aptitude, and this of so peculiar a nature as to come under the denomination of scientific, be moreover requisite, a proportionable degree of nicety and difficulty will of course be attendant on the choice.
For the registration of facts of a regularly occurring nature, as above exemplified, provision has commonly enough been made in practice. Hands competent to the task have accordingly been found for it: nor has the finding of them been attended with any considerable difficulty. What difficulty there may be, seems confined, accordingly, to the finding of hands competent to the registration of facts of casual occurrence.
In the species of judge styled a justice of the peace, the official establishment of the British constitution possesses a species of public functionary well adapted for this purpose.
No ulterior functions of this nature can by their importance present a demand for a greater degree of trustworthiness, intellectual as well as moral, than is presented by several of those functions of which he is possessed already.*
From the class of attorneys, persons are taken without the plea of necessity, and at the choice of parties litigant (and without other restriction or condition than that of having two such functionaries named, one on each side,) for the exercise, and even the definitive exercise, of that part of the judicial function which consists in the collection of evidence.†
To prevent deperition, or at any rate deterioration of evidence, is the only (but it should seem the just) ground, on which a departure of this sort from the ordinary mode of collecting evidence can be defended: and, in a case of such necessity, the recurrence to hands of this description might, it should seem, be justified upon at least as good grounds, as when the same hands are employed without any such plea of necessity, as above.
In regard to testimony having for its subject legally-operative facts taken at large (of which facts collative or ablative in relation to property may serve for example;) by what sort of registrator they shall be collected—viz. whether by the judge of the competent judicatory, by a functionary of the judicial class, or by a functionary of the notarial class—will depend upon the probable absence or presence of a sufficient length of time. If there be no want of time, the sort of functionary who on other occasions is regarded as best qualified to the reception and extraction of testimony destined to be applied to a judicial purpose, is the sort of functionary to be employed in this as in other cases. If there be a certain or a probable want of time, if the occasion be so fugitive that it will not be within the power of a functionary so seated, and in a manner fixed to a spot, to arrest it in its flight,—then comes the necessity of admitting the service of a functionary of the other class, whose seat is of a more pliant and ambulatory nature. Under the head of want of time, is in effect included, on the part of such magistrates as can be applied to within the hour, want of inclination to undertake the business. Not only in respect of the time of doing the business, but in respect of the choosing whether he will do it all,—the magistrate, serving justice upon those gratuitous terms on which justice, by this species of judge, is always served, is not nor could easily be subjected to any inflexible obligation. The functionary of the notarial class, in the present instance, is so far in the same case: but, in the assurance of professional emolument, he beholds an inducement over and above any that applies in the other case.‡
How to secure the verity of the evidence thus provided.
Evidence being subservient to justice no otherwise than in so far as it is undeceptitious,—evidence that, by reason either of incorrectness or incompleteness, proves deceptitious, being worse than no evidence at all,—the attention bestowed on the securing the existence of the evidence, would, if produced by a steady and comprehensive regard to the ends of justice, be accompanied with an attention equally solicitous to secure the verity of such evidence.
As to the instrumental arrangements best adapted to this latter purpose, the have over and over again been brought to view. And in particular, under the head of preappointed evidence, the eventual necessity of employing them has been brought to view in the instance of judicial and other official evidence.
In the case of this species of preappointed evidence, as in the case of every other species of evidence, justice, for the reasons so often given, requires that on each occasion, unless in case of preponderant inconvenience, it be presented in the best shape possible: the verity of it provided for, not merely by eventual punishment and by interrogation, but by counter-interrogation by or in behalf of each individual party whose interest, in case of incorrectness or material incompleteness on the part of the evidence, is liable to be impaired by it.
When, merely in contemplation of future contingent suits, and therefore antecedently to any such suit, evidence for the establishment of any such legally-operative fact as is here in question is (as above) collected,—interrogation by or in behalf of any such party so interested is impossible: no such party being as yet in existence. Therefore, in the best of all shapes, the collection of preappointed evidence is not possible. What remains to be done, is to collect it in the next best shape; that is, the deposing witness speaking under the check of eventual punishment, and subject to interrogation, to be performed by the evidence-collecting judge.
Say that in every case the testimony shall be presented in the best shape in which it can be presented—say but this, and the legal effect proper to be given to preappointed evidence collected as above, is determined. Presented, in the first instance, in the best shape of which preappointed evidence is susceptible; if that interrogation or counter-interrogation which is necessary to the putting it in the very best shape be capable of being applied to it, and the party concerned in interest calls for the faculty of applying it, let that additional security be applied accordingly. But if, by any circumstance, such counter-interrogation have been rendered impracticable,—rendered so, for example, by death, insanity, or expatriation coupled with non-justiciability, on the part of such deposing witness,—then let it, in such its next best form, be received for what it is worth. Evidence thus imperfectly subjected to interrogation will always be more trustworthy than evidence altogether uninterrogated; more trustworthy, therefore, than affidavit evidence, upon which alone causes to any pecuniary amount are in such vast numbers determined in English practice; much more than evidence, the verity of which has not for its security either the scrutiny of interrogation or the fear of eventual punishment, as in the case of hearsay and casually-written evidence.
Suppose, for example, a witness whose testimony is necessary to the proof of some important legally-operative fact—a marriage, the execution of a last will, or other instrument of contract:—suppose him embarked, and on the point of sailing for a country subject to a foreign state, but visited on board, and his testimony collected, the vessel being detained for that purpose, by a functionary armed with the necessary power (in England, suppose a justice of the peace, or, in default of a justice of the peace, an attorney, to whom, under the conditions above mentioned,* a permanent commission for that purpose has been thought fit to be entrusted.) Whatever additional security for the correctness and completeness of the evidence so collected can be given, should, in the event of a suit grounded on such evidence, and at the instance of a party interested, be afforded. Not only the witness should, in the event of his being afterwards forthcoming, or by any other means justiciable and interrogable, be subject to interrogation; but so ought the justice of peace or the attorney.
In the case of the justice of peace or of the attorney, what is possible, just possible, is, that—in confidence that the evidence will not come to be made use of, and subjected to judicial scrutiny, till after he has, by death or expatriation, been placed out of the reach of interrogation—he may, for the purpose of favouring some individual, whose probable interest in the matter of the testimony is in his view, collect it in a manner partially and purposely incomplete.
But the existence of such a plan of improbity cannot reasonably be considered as in a preponderant degree probable. It is not probable, that, in consequence of the corruption in question on the part of the judge, the number of instances in which evidence not only false but deceptitious shall have been collected, will be anything like so great as the number of instances in which, for want of it, evidence necessary to the support of a just right will have perished, and the right have been thus defeated.
At any rate, no such danger can consistently be considered as preponderant, by a master of the rolls or a chancellor by whom an attorney is, under the name of examining clerk, or clerk in the examiner’s office, appointed and employed to collect the whole body of the evidence for pecuniary causes of the highest magnitude, sitting with the deposing witness in a closet with locked doors, free from all apprehension of being subjected to any such interiogation as here proposed.
In a code drawn up for this purpose, several provisions present themselves, which, if given in the character of instructions, and not of regulations sanctioned by pain of nullity, might contribute with advantage to the prevention of abuse.
Instructions stating circumstances by which the trustworthiness of provisional evidence, thus collected, would be regarded as increased:—
1. On the occasion of the examination, use your endeavours to collect impartial bystanders and auditors, the more the better, especially the more important the eventual effect of the evidence; inviting them to attest, if they think fit, by their signatures, the accuracy of the report made of the testimony, and the propriety of the mode in which it was collected: for example, if on board of a ship, the commander, with officers and passengers as many as think fit.
2. Wherever the examination is performed, the trustworthiness of the evidence will be increased, and your own conduct in the collection of it guarded against suspicion, if, at the indication of the party applicant, or at your own motion, you can engage some other trustworthy and intelligent person (professional or non-professional) to sit with you in the business.
By any precaution of this nature, if rendered obligatory on pain of nullity, the effect produced would in many instances be, to defeat the purpose. Rendered optional, whatsoever good effect they produce is pure from mischief. When the checks in question are called in, the evidence will command the confidence which it is thus made to deserve: where no such ground for confidence is formed, the eye of suspicion will be pointed to the transaction by its deficiency; and, from the persons employed in the transaction, an account of the causes of the deficiency will naturally be expected. In a case where evidence for establishing the circumstances attendant on a case of corporal suffering, whether from injury or calamity, is to be recorded, a medical practitioner would be an obviously proper assessor and assistant to the judicial functionary.
[* ]Since the first edition of the work was published, a general legislative system for the registration of births, deaths, and marriages in England, has been made by 6 & 7 W. IV. c. 86, amended by 7 Will. IV. & 1 Vict. c. 22. At the same time, a bill to establish a system somewhat similar in Scotland was laid before Parliament, but has not yet (August 1839) been carried through.—Ed.
[† ]In regard to contracts in general, and marriage-contracts in particular, distinguish between the registration of the contract itself (i. e. the instrument of contract, when there is one,) and the recordation of the naked fact of the entrance into a contract of the species in question, by or between the party or parties in question. One sort of office may be fittest for the one purpose, another for the other. In practice, the one incident may be constantly the subject of registration, the other seldom or never. In England, for twenty instances of marriages entered into and registered, there is not perhaps more than one, of a marriage-settlement (i. e. a marriage instrument of contract) entered into: nor, except in two or three counties, any one of a marriage-settlement registered.
[‡ ]This belongs to the head of real evidence. See Book V. Circumstantial.
[* ]Examples:—1. Recordation of a riot committed in his presence; and this evidence rendered sufficient of itself to ground a conviction pronounced by himself as judge.
[† ]Viz. in the character of commissioners for the taking depositions to be employed in a court of equity. The occasion on which the examiner (such is the denomination given to the collecting judge) is a permanent officer, is confined to the case where the place of examination lies within a small distance of the metropolis.
[‡ ]Of preappointed evidence of the description here in question,—viz. evidence of miscellaneous facts, received and extracted either antecedently to litigation, or antecedently to the time regularly appointed for the collection of the evidence,—the practice of the English equity courts affords two modifications.
[* ]Section 3.