Front Page Titles (by Subject) CHAPTER XIV.: POSTERIORA PRIORUM—PRIORA POSTERIORUM. FACT INDICATED, A PRIOR EVENT; EVIDENTIARY FACT, A POSTERIOR EVENT IN THE SAME SERIES: AND E CONVERSO. - The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2)
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CHAPTER XIV.: POSTERIORA PRIORUM—PRIORA POSTERIORUM. FACT INDICATED, A PRIOR EVENT; EVIDENTIARY FACT, A POSTERIOR EVENT IN THE SAME SERIES: AND E CONVERSO. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 7.
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POSTERIORA PRIORUM—PRIORA POSTERIORUM. FACT INDICATED, A PRIOR EVENT; EVIDENTIARY FACT, A POSTERIOR EVENT IN THE SAME SERIES: AND E CONVERSO.
These two topics are scarcely susceptible of a separate consideration: no two can be more intimately connected.
In any series of facts (the existence of acts or other events—the existence of works, physical or pyschological, the fruit of such acts or events,) following each other in the character of so many successive means leading to a common end, of so many successive effects originating in a common cause,—the existence of a posterior article will naturally serve as evidence of the existence of each prior article: and è converso, the existence of a prior article will operate, though commonly with much less force, in the character of evidence of the existence of each posterior article.
With a view to cases of a penal nature, these topics have been already handled, under a variety of modifications: handled, not under their own names, but under the names of their respective modifications. Fear (for example,) fear of punishment, being the natural consequence of delinquency, operates as evidence of it. Preparations for a crime, being among the causes of the pernicious event, operate as evidence, serving to fix upon the person who is ascertained to have been engaged in them the authorship of that event.
The sort of facts that remain for consideration on the present occasion, are those that are liable to come in question in cases of a non-penal nature. Examples:—
1. A voyage or journey of considerable length. Evidentiary fact, the arrival of the traveller at the terminus ad quem: facts indicated, his appearance and transactions at the several intermediate stages. E converso; evidentiary facts, his appearance and transactions at any of the intermediate stages, coupled with evidence of his intentions of conveying himself to the terminus ad quem; fact indicated, his arrival there.
2. General settlement of a man’s property, by deed inter vivos, or testament. Evidentiary fact, the execution of the appropriate written instrument: fact indicated, the existence of transactions and scripts (letters, papers of instruction, &c.,) preparatory to that event. E converso; evidentiary fact, the existence of a transaction or script of a nature preparatory to such event: fact indicated, the ultimate event itself.
3. Entrance into a new condition in life: e. g. marriage. Evidentiary fact, the celebration of the marriage ceremony: facts indicated, preparatory transactions and scripts; tete à téte conversations; overtures to parents or guardians; love-letters; bespeaking of the ring and wedding clothes; housekeeping preparations; publication of banns, or obtainment of licence, &c. E converso; evidentiary fact, any one or more of these preparatory incidents: fact evidenced, the performance of the ceremony.
4. Engaging in a profit-seeking occupation: engaging in a partnership. The preparatory steps will be infinitely diversifiable, according to the particular nature of the occupation in each case. To pursue the exemplification further, seems unnecessary.
5. Litigation. Evidentiary fact, the ultimate decision: or, in cases requiring active execution, the extra-judicial transactions designated in each particular instance by that word: facts indicated, the several preparatory transactions and scripts of procedure, according to the nature of the case. E converso; evidentiary fact, the existence of any such preparatory transaction or script: fact evidenced, ultimate decision of the cause, in favour of the demandant or the defendant, according to the particular nature of such cause.
From this general view of the subject, several observations may be deduced—observations, some, if not all, of which, may appear too obvious to be worth mentioning: but there is no observation so obvious as not sometimes to be overlooked:—
1. In every such natural series, facts posterior and prior are naturally evidentiary of each other.
2. The probative force of posterior events in regard to prior ones, is naturally much stronger than that of prior events with regard to posterior ones.
In all human affairs, execution is better evidence of design, than design of execution. Why? Because human designs are so often frustrated.
3. When the posterior event indicated by a prior event did not take place, it will in most instances happen that the failure will have been proved by some notorious or easily-proved facts, by which, in this case, the probative force of the prior event with reference to the posterior will have been entirely destroyed. But sometimes it will happen, especially in the transactions of a remote period, that no completely satisfactory evidence is forthcoming, either of the failure of the design or of the consummation of it. As far as this is the case, the modification of circumstantial evidence, here called for shortness priora posteriorum, may beyond question have its use.
A state of things may be supposed, in which the probative force of this species of evidence might be estimated, or rather observed, with the utmost nicety. This is where, on the one hand, the instances in which the design has proceeded to the stage of consummation—on the other hand the instances in which the execution has stopped short at any of the several preliminary stages, have been made the subject of official or other trustworthy registration.
The case thus put is not absolutely out of the reach of practice. In different degrees it has been exemplified in different countries and different courts in the practice of judicial registration. It might be, and generally speaking ought to be, exemplified in the most perfect degree in the practice of all such courts.
When the ends of justice are taken for the ends of judicature, a system of forensic book-keeping will be employed, by which it will appear in what degree fulfilment is given to those salutary ends. It will be apparent, in each individual cause, at what price, in the shape of expense, vexation, and delay, justice (or what is given for justice) is purchased: and likewise what proportion of that price is the result of natural and unavoidable—what of factitious, and therefore avoidable, causes. In that state of judicial book-keeping, the mode and period of termination will in each cause appear of course.
Under such a system of book-keeping, the termination of each cause being manifested by direct evidence, there will not (it may be said) be any demand for any such circumstantial evidence as is here in view. The facts of all stages being on record, posterior ones as well as prior ones, there will be no use in any such operation as that of inferring the existence of either from that of the other. But, in regard to any given individual cause, suppose the memorials of a posterior transaction or script to be unforthcoming—destroyed, obliterated, lost, or inaccessible. In this case, any prior article of the same series may afford inferences, and have its use.
In another way, a rational system of judicial book-keeping might have a much more extensive use, and still in the character of a source of this modification, of circumstantial evidence. The application given to such a register might not only be prospective but retrospective. The negligence of preceding legislators might in some measure be repaired by the diligence of succeeding ones. Two equal spaces of time are taken—say of ten years each: the posterior, a period of perfect registration, as above; the prior, a period when registration was more or less imperfect, or altogether deficient. In the period of imperfect registration, a certain cause, it is known, proceeded to a certain stage: what is the probability of its having arrived at the ultimate stage? and, in that case, of its having terminated in favour of the demandant rather than of the defendant? Turn to the accounts of the period of good book-keeping, the probability of the two events will be respectively found in numbers.