Front Page Titles (by Subject) CHAPTER XII.: OF THE PRINCIPLE OF PREAPPOINTED EVIDENCE AS EXEMPLIFIED IN THE CASE OF REAL EVIDENCE (EVIDENCE FROM THINGS.) - The Works of Jeremy Bentham, vol. 6
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CHAPTER XII.: OF THE PRINCIPLE OF PREAPPOINTED EVIDENCE AS EXEMPLIFIED IN THE CASE OF REAL EVIDENCE (EVIDENCE FROM THINGS.) - 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 THE PRINCIPLE OF PREAPPOINTED EVIDENCE AS EXEMPLIFIED IN THE CASE OF REAL EVIDENCE (EVIDENCE FROM THINGS.)
The subject of real evidence will be fully considered in the next book.† There will, however, be no inconvenience in saying here what seems fit to be said with respect to the application of the principle of preappointed evidence to the field of real evidence.
The demand for instruction on this subject is not very considerable. But conception may be assisted, and the purpose of illustration answered, by bringing to view some of the most remarkable instances in which this application has been, and continues to be, generally made.
In the case of immoveable property, the fences of various kinds, by which intrusion from various sources is, with a degree of success more or less complete, endeavoured to be guarded against, serve at any fate for the delineation of boundaries, and thence of the dimensions of the space contained within them. In the case of landmarks, the purpose is confined to the mere delineation, or rather indication, of boundaries.
The function, which, in the case of boundaries, is permanently performed in relation to portions of immoveable property—to quantities carved out, as it were, of the surface of the globe which we inhabit—is performed occasionally in relation to masses of moveable property, by the several standards of weight and measure: chiefly on the occasion of their changing owners, or on the occasion of their consumption, or change of form, in the hands of the same owner.
Proprietary marks—marks of ownership—may be considered as articles of preappointed real evidence; unless they be considered as constituring so many symbolic modes of signature, indicative of the proprietor, by being significative of his name. At any rate, and whether of real or written, they are so many articles of preappointed evidence.
Imprinted upon any subject-matter of property, the proprietor’s name at length would be unquestionably an article of written evidence: no less so the initials, as in the case of G. R. for George Rex. But when, instead of the G. R., come the broad arrow on timber, or the strand in sail-cloth, then comes the doubt (happily altogether an immaterial one) as between written and real evidence.
Hydrometers, thermometers, and electrometers, are so many other standards of quality, confined, each of them, in its application, to a particular species of body.
As standards or indexes of quantity, so may standards or indexes of quality, be considered as so many articles or sources of real evidence. Where quality depends upon proportions as between the elements of the same compound body, standards of quantity serve in this way in the character of standards of quality.
Thus, different species of hydrometers serve for indicating the proportional quantities as between alcohol and water, and thence the strength of the ardent spirits composed of the two ingredients. Applied to infusions of malt, or other fermentable matters, a similar instrument, under the name of saccharometer, serves for indication of the proportions between the quantity of sugar and other fermentable matters mixed with the water, and thence the strength and value of the wort.
Touchstones serve as standards of quality, by indicating proportions as between the noble and ignoble metals.
Mint marks applied in the same view, wear an ambiguous aspect; being referable either to the head of real or written, circumstantial or direct official evidence.
The following are other examples of preappointed real evidence:—
In the hands of the importer or manufacturer, taxes are imposed upon various sorts of goods; that is, previously to the distribution made of each article in the way of sale, he is subjected to the obligation of paying to the officers of the public revenue a sum of money proportioned to the quantity and quality of the article. Upon the outside of each packet containing a determinate quantity of the article, a stamp or other mark is appointed to be impressed by the officer of the revenue, on receipt of the sum assessed upon it. The existence of any such article, in a certain quantity, not provided with such a stamp or mark, is at the same time directed to be received as sufficient evidence of the species of delinquency consisting in the non-payment of the appointed tax.
For reasons, the policy of which is a question foreign to the present purpose, the exportation of sheep and sheep’s word was for a long time thought fit to be prohibited. For the enforcement of this prohibition, a provision is inserted, prohibiting the packing of this species of commodity in masses exceeding a certain quantity (14lb.) unless it be in packages of a certain description, bearing on the outside the word. ‘Wool’ in conspicuous letters of not less than a certain length (3 inches.* ) Thus it is that the existence of a quantity above the small quantity so allowed—otherwise than in one of the sorts of packages so expressly allowed, and bearing on the outside of it the above-mentioned positive evidence of its contents—is, in any place of the description in that behalf specified, preappointed to be received as an article of negative evidence sufficient to warrant a decision convicting the preprietor (or other person having the article in his possession) of an individual act, belonging to the species of acts which the law has on this occasion thought fit to insert in the catalogue of punishable offences.
Standards of quality have already been mentioned as among the already established applications of the principle of preappointed to real evidence.
But, in many instances, an indication of the maker of the article is either the best or the only evidence of its quality that can be presented to the cognizance of a person whose interest, in the character of an owner or occupier, it is, to possess a just conception of it.
Compared with the instances already brought to view, such evidence of quality may be considered as belonging rather to the head of circumstantial than of direct evidence. Perhaps even those others might be considered in the same character: but be this as it may, how satisfactory a species of evidence it is in many cases, scarce any person but has had occasion to observe.
Where a manufacturer has obtained a reputation on the score of the quality of his goods, he is not apt to be insensible to the value of it, or to fail of taking measures, so far as depends upon himself, for availing himself of it: viz. by exhibiting, according to the nature of the goods, either upon the face of the goods themselves, or of the receptacles in which they are kept, an intimation of the hand from which they came.
Unfortunately,—by the same interest by which the real maker of superior goods is excited to make known to individuals in general, in the quality of possible customers, the hand of the real maker from whom they received their quality, and from whom accordingly other goods of equal quality may naturally be expected for the same price,—other manufacturers of goods, of the same denomination but of inferior quality, are excited to have recourse to that species of fraud which consists in causing these inferior goods to be considered as having been the work of the same hand.
A practice of this kind is neither more nor less than a species of fraud—a species of forgery: possessing, if not in equal degree, in the same kind (to a considerable extent at least) the characters of that crime.
The injury, of which it is the instrument, falls in three distinguishable shapes, and on two different descriptions of persons:—
1. On the purchaser, who—the inferior goods being imposed on him for the superior—is defrauded to the amount of the difference in value.
2. On the maker of the superior goods, the rival manufacturer, who—the inferior goods being purchased instead of his superior ones, is thus injured in his property, defrauded to the amount of the profit upon the goods purchased,—in consequence of the deception and consequent mistake.
3. On the superior maker again, who, besides losing the credit attached to the authorship of the superior goods which he really made, is saddled with the discredit attached to the inferior goods which he did not make,—and is thus injured in respect of his professional reputation: and, reputation being in this sort of case a main source of property, he is thus, though in a remote and contingent way, injured in his property to an undefinable amount.
In his character of guardian of the public morals, as well as in that of protector of individual property, it seems incumbent on the legislator to do what depends on him towards the suppression of fraud in this shape. Happily—notwithstanding the names of fraud and forgery, which with so indisputable a propriety may be attributed to it—measures attended with little rigour, with rigour far inferior to that which is practised in the case of the most common and most formidable of the offences characterized by that name, promise to be sufficient.
Of the measures that seem requisite in this view, intimation may be made under four heads:—viz. 1. Prohibition; 2. Registration; 3. Procedure (summary;) 4. Penalty. Under each, a very slight and general designation is all that room can be found for in this place.
1. Prohibition. If, on goods of all sorts without exception, names and descriptions sufficient in all cases for distinction could be delineated,—prohibition, under a slight penalty, and without registration, might suffice. But the contrary is beyond dispute.
2. Registration. Offices for this purpose would need to be instituted: number and situation depending on local circumstances. But, how dissimilar soever the nature of the goods, one office at a place might serve for all.
Subjects of registration, the mark which each manufacturer might think fit to employ, according to the nature of the goods. The use of the register is, that, a manufacturer having made choice of his mark, no other manufacturer in the same line shall be at liberty to employ either that same mark, or a mark likely to be mistaken for it. To secure a sufficient degree of diversity, a previous licence would, it not absolutely necessary, be at any rate of use. On the other hand, the danger of arbitrary power, and of consequent oppression or extortion, would require to be taken into the account.
For the establishment of the office, compulsion applied to any purpose would neither be necessary nor proper. No compulsion applied to persons not sharing in the benefit, to force them to share in the burthen: in other words, no salary at the public charge. No compulsion to force any manufacturer to register his marks. By each individual in whose eyes the security is worth purchasing, it will be purchased.
The danger would be—where the assignment of the marks required judgment, time, and attention—lest, if the fee for the licence were not left to be adjusted to the quantity of time and attention that might eventually be necessary, assignments should be rashly made or refused: in the opposite case, lest here, as in the judicial offices, the opportunity of increasing official profit by unnecessary consumption or pretended consumption of official time, should become a source of factitious delay, vexation, and expense—of a sort of secret litigation, though without the name.*
3. Procedure summary. A topic over and over again insisted on† is, that, except in the comparatively rare cases in which, by special causes, delay is rendered necessary, all judicature is unjust, that is not summary. But on this occasion, a special demand for summary procedure is created by divers circumstances. To trace out, and secure for the purpose of justiciability, the forthcomingness of the forgerer,—investigation, a process not performable under any other than summary (i. e. natural) procedure, will frequently be necessary.
Regular or technical procedure being (in nine out of ten cases individually taken) as inapplicable to the purpose of honest litigants, as it is, and was intended to be, favourable to the purpose of dishonest ones,—so in particular is it in this. A suit in equity is as inapposite in the character of a remedy for an honest plaintiff, as it is infallible in the character of an instrument for crushing an honest defendant, whose pecuniary circumstances are such as to disable him from resisting it.
4. Certainty and facility of conviction being afforded (as above) by the nature of the mode of procedure,—here, as elsewhere, the magnitude of the penalty might be rendered trifling in comparison with what it becomes necessary to make it where factitious uncertainty, combined with the burthen of factitious delay and expense imposed on injured prosecutors, holds out invitation to delinquency.
The shame of conviction, with the addition of the expense necessary to give it adequate publicity (the expense of prosecution having nothing factitious added to it, and the prosecutor being indemnified for his share of it,) would be sufficient. Ordinary forgerers are almost always, in respect of pecuniary circumstances, irresponsible: hence the pretence, and in some measure the necessity, for the rigour of the punishment in that case. Forgerers of this description are scarce ever, in the same respect, otherwise than responsible: sufficiently responsible, in respect of costs and penalty, as above.
Forgerer. “But my wares are in fact, nothing inferior to the goods made by that man whose name gives him a monopoly as against me. This artifice is therefore an innocent one, and without which I could never hope to give myself a fair and equal chance.”
Legislator. “If your goods are no better than his, no injury is done to you: the same chance which has befriended him, might have befriended, and may at any time befriend, you.
“If you goods become better, or, under the same goodness, cheaper, sooner or later customers will find out your superiority as they found out his: and then the tables will be turned in your favour, and you will be the monopolist. Bestir yourself.
“Your wares, you say, are as good as his: but how am I to be satisfied of their being so? The evidence of customers—an impartial lot of evidence—is, by your own showing, against you: what have you to oppose to it?
“In your instance (you say) the forgerer’s wares are as good as the wares of the man of established skill and reputation, whose name, or what is equivalent, he forges. Be it so. But how many will there not be whose wares are inferior! and the worse the wares, the greater the profit;—the stronger, therefore, the inducement to the forgery, and therefore the probable number of the forgerers.
“You and your more successful rival have, in my regard, no higher place the one than the other: my favour would lean rather on the side of customers, as being more numerous than makers. By favouring that state of things which holds out to each of you the best chance of a reward proportioned to his real merits, I excite each of you to exert his utmost to win the prize: and the greater your merits—the better the goods at the same price—thence the greater the advantage, the ever increasing advantage, to the people at large, in quality of customers.”*
END OF VOLUME VI.
[† ]Book V. Circumstantial, Chap. III.
[* ]38 Geo. III. c. 38. § 28.
[* ]By the act which gives a copyright in designs for manufacture for a year, and in designs of castings, embossments, &c. for three years (2 & 3. Vict. c. 17.) a system of registration is appointed, and each article of manufacture, to entitle it to the protection of the act must have on it the name of the registered proprietor, the number on the register, and the date of registration.—Ed.
[† ]See Scotch Reform, Letter 2 (Vol. V.); and Book VIII. of the present work.
[* ]By the Letters-Patent amendment act, 5 & 6 Wil. IV. c. 83, a person forging the name of a patentee, for the purpose of making goods pass off as his patent commodity, is liable to a penalty of £50 (§ 7.)—Ed.