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CHAPTER I.: OF MAKESHIFT EVIDENCE IN GENERAL. - 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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OF MAKESHIFT EVIDENCE IN GENERAL.
Makeshift Evidence, what.
Thus much concerning that description of inferior evidence, the inferiority of which consists in this—viz. that the fact, the existence of which is immediately indicated by it, is not the very fact in question—the fact, of the existence of which, a persuasion is endeavoured to be produced in the mind of the judge,—but some other fact, which, though distinct from that principal fact, is so connected with it, as that (with a greater or less degree of assurance) the existence of such principal fact is inferred, and considered as being rendered more or less probable by the existence of the evidentiary fact.
We come now to that description of inferior evidences, the inferiority of which consists in this—viz. that, be the fact what it may (principal or evidentiary,) the information which it conveys has some circumstance belonging to it, which—by rendering inapplicable to it some one or more of the securities that are applicable to ordinary evidence—renders its probative force in a greater or less degree inferior to that possessed by ordinary evidence when those securities (such of them as are applicable to it) are actually applied to it.
Of the different powers, qualities, and operations, serving as securities for correctness and completeness—securities against deceptitious incorrectness and incompleteness—a view has been already given.* By the inapplicability or non-application of these several securities, and the groups which, by ringing the changes, might be formed out of them, may be constituted so many species of evidence of inferior shape;—of evidence, the probative force of which is lessened by the imperfection thus produced in the shape in which it presents itself to the mind to which it belongs to judge.
When the non-application of them has for its cause the mental weakness or corruption of the man in power—of the legislator or the judge,—the principal of the shapes in which this imperfection has displayed itself, have, under the head of Extraction, been already brought to view.†
But cases exist,—and cases the exemplification of which is abundantly frequent,—in which this imperfection has for its cause, not any failure on the part of the man in power, but the unchangeable nature of things. In the imperfect shape in question, the article of evidence is to be had; in any other shape it is not to be had—at least as matters stand at present.
Agreeing in this one common character—viz. that of imperfection, and of imperfection the origin of which is traceable to the source just indicated—being employed only because, from the same source, better evidence, evidence of a more trustworthy complexion, of greater probative force, is not be had,—these several species of evidence, how dissimilar soever in other respects, may be brought together and designated by one common appellation,—viz. that of makeshift evidence.
On this subject three distinguishable tasks present themselves to the eye and conscience of an honest and intelligent legislator:—1. To take an inventory of those species of inferior, yet not the less indispensable, evidence; 2. For the information of the judge, to hold up to view their several features of infirmity; and 3. By apposite powers and instructions, to do whatsoever the nature of things admits of, towards the removal of their several infirmities, by completing in each instance the requisite assortment of securities; or by so ordering matters that testimony in a more trustworthy shape may in future take place of testimony in these less trustworthy shapes.
Of the different species of makeshift evidence.
Under the denomination of makeshift evidence are comprehended two divisions or subclasses, the contents of which, as compared with one another, have nothing in common, except the infirmity in consideration of which the term makeshift is alike applicable to both.
These are, unoriginal evidence, and extra-judicially written evidence.
I. Extra-judicially written evidence. Susceptible alike of this common denomination will be found three sorts or genera; viz. 1. Casually written; 2. Ex-parte pre-appointed; 3. Adscititious or imported.
II. Unoriginal, or (as supposed) transmitted evidence. Susceptible of this common denomination will be found five distinguishable sorts or genera: 1. Supposed oral, delivered through oral; 2. Supposed written (or say scriptitious) delivered through written (or say scriptitious,) thence termed transcriptitious or transcriptural; 3. Supposed oral, delivered through written; 4. Supposed written, delivered through oral; 5. Reported real evidence.
The different modifications, for the expression of which these denominations have been devised, will all of them receive further explanation, each of them in its place.
In every instance, that inferiority in respect of probative force, in consideration of which the term makeshift was found applicable with equal propriety to them all, will be seen to have for its cause the absence of one of the principal securities for correctness and completeness—viz. interrogation ex adverso at the hands of a party, whose interest, in the event of its being incorrect or incomplete, may, in proportion to that incorrectness or incompleteness, be made to suffer by it.
In the case of unoriginal evidence, the word supposed forms, in the instance of each of the genera contained under it (as above,) an indispensable adjunct. If not expressed, it must at any rate be borne in mind, or confusion and misconception will be the result.
In the case of every such article of evidence, there are at least two different statements in question: one, the existence of which is certain; the other such that, though the existence of it is asserted (viz. in and by the statement which, as above, is certainly known to exist,) it may happen, notwithstanding, in the whole or in any part, not to have had existence.
That which is certain, is that which, to a certainty (viz. by the very supposition,) is presented to the mind of him to whom it belongs to judge: to his hearing, if it be oral; to his sight, if it be scriptitious.
Titius, standing before the judge, says—“I heard Sempronius say so and so.” This is supposed oral through oral evidence. The oral evidence is that which is said by Titius: the supposed oral evidence is that which by Titius is said to have been said by Sempronius. By the judge it will naturally be supposed to have been said by Sempronius; because, generally speaking, it will be more likely that what was said by Titius was true, than that it was false. But, in speaking of this supposed statement, to employ the same unqualified expression as that which (as above) is employed in speaking of the statement made before the judge, would be to assume as indisputable that which, in general, will, in case of litigation, be among the matters in dispute. That, in the presence of the judge, Titius said to the judge, “Sempronius said in my hearing so and so,” is out of dispute. But what may happen is, that, in saying thus, what Titius said was altogether false; Sempronius not having, in his hearing, ever said anything at all, or at least not having said anything to any such effect.
Omitting the adjunct supposed, had the denomination been, in this case, oral evidence through oral,—in this case, the truth of what was supposed to have been said by Sempronius would not, indeed, have been represented as out of dispute; but the truth of that which was said by Titius, in saying, “Sempronius in my hearing said so and so,” would have been represented as being out of dispute: whereas, in the nature of this species of evidence, this point is no less open to dispute than the other.
Of the three sorts of evidence here comprehended under the general denomination of extrajudicially written evidence, the points of coincidence and difference may be thus stated:—
Whatever a man writes, that is capable of being employed in evidence, but without any expectation (unless with a fraudulent intention) of its being so employed,—if, being addressed to any other person, it is designed to be communicated to him,—comes, in common language, under the denomination of a letter; if it be not so addressed, it may be, and is, included under that of a memorandum.
In both cases, if it happens to the document to be employed in the character of judicial evidence, it may be designated by the common appellation of casually written evidence.
But there are cases in which,—not wearing the form of evidence, nor, as such, antecedently to their creation, called for by authority of a court of justice—letters, as well as memorandums, are written for a purpose analogous to that for which evidence is so called for; that is, for the giving effect to rights and obligations; and not altogether without a view towards their being made (in so far as the established rules respecting evidence will admit) subservient to the purposes of evidence.
Of this genus, the most striking, and, in respect of their extent and application, the most important species, are,—in the shape of memorandums, all those entries which form the matter of a mercantile book of account,—in the shape of letters, those which are written or received by mercantile men, in the course or for the purpose of their commerce.
These, therefore, being written not without a view to their being eventually made subservient to the purposes of evidence, may appear in that consideration to rank themselves under the head of preappointed evidence:—but, not being endowed with either of those qualities, by one or other of which whatsoever has been ranked under that head stands distinguished so much to its advantage (viz. the being produced by the concurrence of every party whose rights would be injured either by spuriousness or by any deceptitious incorrectness or incompleteness in its tenor; or else by some party whose situation, bating casual fraud, places him out of all danger or suspicion of any sinister interest capable of engaging him in the design of giving to it any such deceptitious character,)—it becomes necessary that this inferior sort should, by a term expressive of the distinguishing circumstance, be distinguished from that superior sort of evidence. It has therefore been called evidence preappointed ex parte.
By the term adscititious or imported evidence, is meant to be expressed any statement in writing, which, on the occasion of its being written, was not designed to be employed in the character of evidence in the cause in question, but was designed to be employed (whether actually employed or not) in the character of evidence, viz. in some other cause: and it is with reference to such other cause that it is termed adscititious or imported, as having, for the purpose of the cause in question, been borrowed (as it were) from that other cause.
In the case of evidence borrowed from another cause, it may happen that some or all of the appropriate securities for the trustworthiness of evidence were applied to it in that cause. But it will scarcely happen that a set of securities was applied to it, the same in all respects as that which, in the cause in question, might be applied to it. Interrogation, for example, yes: but not at the instance of all the same parties; or, even if at the instance of every one of those same parties, yet one or more of them, perhaps, were not at that time possessed of all the material sources of information, and consequent grounds for interrogation, which they possess at present.
This is the most favourable case. But, in respect of probative force, this species of evidence (which at the worst seems to have all the advantages of both the extra-judicially written species of evidence just mentioned) may be rendered by any number of degrees weaker and weaker, by the several defects which, if the judicatory be different, are liable to have place in the course of procedure pursued in such other judicatory, in relation to evidence.
With imperturbable composure we shall see judges after judges employing (and in the English system, which judges shall we not see employing?) and taking for the sole grounds of decision, modes of collection, of the unsuitableness of which to the purposes of justice, they are themselves, and ever have been, perfectly and confessedly convinced:—evidence altogether uninterrogated, in the shape of affidavit evidence: evidence interrogated, not by any of the parties, nor yet by a judge, but by a clerk, who, being alone with the witness in a private room, makes him sign what he pleases. Under these circumstances, supposing the procedure of the judicatory directed to any such ends as the ends of justice, it may be imagined with what varied degrees of distrust it cannot but regard whatever masses of evidence may have been imported into it from any of those judicatories in which the convenience of the judge is substituted to the ends of justice.
Aliâ in causâ—inter alios—alio in foro—alieno in foro: by these adjuncts, an idea may be given of so many obvious specific modifications of the genus adscititious evidence.
Casually written evidence; evidence preappointed ex parte; and adscititious evidence; these form, as it were, a class apart from that for the designation of which the term unoriginal is employed. Not but that evidences, partaking of the qualities in consideration of which they have been designated respectively by those several denominations, are capable likewise of partaking of that quality for the designation of which the word unoriginal is employed. Not that casually written evidence, evidence preappointed ex parte, and the evidence termed adscititious evidence, are less capable than any other sorts, of adding to the qualities designated by those several appellations the quality of unoriginality; in which case they will add, each of them, to its own characteristic infirmity, the infirmity that forms the character of that fourth species. But, of all evidence here comprised under the appellation of unoriginal evidence, this of non-originality constitutes an essential and inseparable quality: whereas, in those several other cases, if it be present, it is but as an accidental one.
Properties common to all the kinds of makeshift evidence—Topics to be touched upon in relation to each species.
Of every one of the several objects comprehended (as above) under the common denomination of makeshift evidence, the following propositions seem capable of being predicated with equal truth:—
1. Of the information respectively conveyed by them, the truth has not been provided for by any, or at least not by all, of the securities, which (as above) are capable of being, and ought to be, applied to evidence—ordinary evidence, when presented in its best shape.
2. The shape in which the information contained in them is presented, renders them respectively inferior, in point of trustworthiness, to ordinary evidence.
3. By the circumstance by which they are respectively distinguished from ordinary evidence, each of them is liable to have been employed as an instrument of a particular species of fraud: a particular modification of what, in speaking of all or any of them, may be termed the characteristic fraud—the characteristic fraud incident to makeshift evidence.
4. This fraud consists in the fabrication and utterance of the evidence, the pretended information, in question,—in contemplation, and under the assurance, of the inapplicability or non-application of the securities for trustworthiness; viz. sanctionment, or interrogation, one or both of them.
5. Though the more formidable part of the mischief is composed of the deception and consequent misdecision of which the characteristic fraud may be the instrument, it is not the whole: since, for want of the security afforded by the safeguard in question against incorrectness and incompleteness, the same evil consequences may take place through temerity, or even without blame.
6. They are all of them indicative of the existence (present, or at least past) of ordinary regular evidence, such as is, or at least at one time was, or ought to have been, obtainable in the best shape from the same source; i. e. either from the same thing (as in case of real evidence,) or from the same person (as in case of personal evidence.)
7. They are, therefore, unless for special causes, not fit to be admitted, any of them, by itself, in its essential shape: the information conveyed by them is not fit to be admitted, unless, being drawn from the same source, it be presented (provided it be capable of being so presented) in the ordinary,—i. e. in the superior and more trustworthy, shape.
8. The information respectively contained in them may, in such its inferior shape, be presented, and by itself, if in its regular and ordinary shape the presentation of it is either altogether impracticable or not practicable without preponderant inconvenience, viz. in the shape of delay, vexation, or expense.
9. By and after the indication and warning thus given of the characteristic fraud of which they are respectively liable to become the instruments,—if it be in the will as well as in the power of the judge to possess himself of it, the danger of deception by means of such fraud is lessened: the probability of succeeding in any attempt, and thence the probability of the attempt itself, is diminished.
Shall it, in any and what cases, be admitted? The danger of deception attached to the admission of it, can it, by any and what means, be diminished? Such are the subjects of inquiry which present themselves as proper to be considered in relation to each of the several species of makeshift evidence hereinabove brought to view.
Previous explanation of their respective natures and sub-modifications, will, in so far as deemed necessary, come in of course.
[* ]Book II. Vol. VI. p. 278, et seq.
[† ]Book III. Vol. VI. p. 383, et seq.