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CHAPTER II.: OF EXTRAJUDICIALLY WRITTEN EVIDENCE. - 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 EXTRAJUDICIALLY WRITTEN EVIDENCE.
Of casually written evidence.
To a private letter or memorandum this appellative is applied, for the purpose of distinguishing this from other species of written evidence, widely different in point of trustworthiness, viz. preappointed written evidence at large, and judicially written evidence;—to which last belong, ready written evidence delivered spontaneously; ditto delivered ex interrogato (delivered in the epistolary form, on being called for by interrogation in the same form;) and evidence judicially delivered in the oral form, whether spontaneously or ex interrogato, and thereupon forthwith consigned to writing on the spot.
Evidence preappointed ex parte, though extrajudicially, can scarcely with propriety be said to be casually written; it being written for particular purposes, and those always uniform in their nature.
Of the characteristic fraud, as above considered under a general aspect, the particular modification of which extrajudicially and casually written evidence is liable to become the instrument, may be thus described:—
Under the assurance of not being exposed by it to punishment (no punishment being, in case of mendacity, attached to it, through the medium of an oath, or otherwise,) nor yet to ill repute, or at any rate not of the degree of public shame, the author not being about to be subjected to interrogation in respect of it,—a man utters in this form a fallacious statement, adapted to a deceptitious purpose. It is either incorrect, or incomplete, or both; incomplete in the way of partiality, and thereby calculated to produce deception, and misdecision in consequence.*
Fraud is not the only source in which the inferiority of extrajudicially written evidence, as compared with ordinary evidence judicially extracted from the same source, is to be looked for. Neither of the main securities against incorrectness and incompleteness—neither the fear of eventual punishment in case of falsehood, nor the scrutiny of interrogation and counter-interrogation—have been applied to it. Without other blame than that of temerity, or even without any blame at all, both sources of deception, incorrectness and incompleteness, more particularly incompleteness, may therefore have crept into it.
Whose is the discourse which it conveys, or purports to convey?—that of an extraneous witness, or that of a party in the cause?
If that of a party, at whose instance is it tendered or called for?—that of the party whose discourse it is? or that of another party on the same side? or that of a party on the adverse side?
According as it happens to it to stand in one or another of these different predicaments, the propriety of giving admission to it will (it is evident) stand upon a different footing; as well as, in case of admission, the expedients to be employed for reducing the danger of deception, and consequent misdecision, to its lowest terms.
In what case, if in any, shall evidence of this description be admitted?
When admitted, by what expedients may the danger of deception, considered as producible by the admission of a species of evidence thus liable to be vitiated by incorrectness and incompleteness, be diminished?
To provide an answer to the above questions, is the object of the following rules:—
I. Case the first. He whose discourse the script appears to be,* not a party in the cause: the evidence, therefore, which it contains, extraneous.
Rule 1. Except in the cases excepted in the next rule, admit it not.
Question. Why not admit it?
Answer. Because, by excluding it (deduction made of the cases in which it is proposed to give admission to it,) no information stands excluded. The person whose discourse it purports to be, being forthcoming and interrogable in a mode less exposed to incorrectness and incompleteness, it rests with you to obtain whatever information it contains, and more. Read by itself, he not forthcoming or not interrogated in respect of it, the substitution will naturally be a cause of incorrectness and incompleteness, and misdecision the more or less probable consequence: he interrogated, and this supposed written discourse of his read notwithstanding, the addition is superfluous; inconvenience, in the shape of delay, vexation, and expense, all useless,—the certain consequence.
Rule 2. The evidence extraneous as before, in the following cases admit it.
1. On him whose discourse it purports to be, the process of interrogation (viz. oral interrogation) rendered either physically or prudentially impracticable: physically, as by death or incurable mental infirmity; physically or prudentially, as by expatriation or exprovinciation: the interrogation effectible either not in any terms, or not without preponderant inconvenience in the shape of delay, vexation, and expense.
2. On him whose discourse it purports to be, the process of interrogation performable and performed; the reading of it called for on either side, viz. either for an affirmative or a confirmative purpose; for the purpose of showing that, at the time of framing the written discourse in question, the statements contained in it were in any point discordant, or on the whole concordant, with the testimony now, by interrogation and counter-interrogation, extracted from the same source.†
Question. Why give admission to evidence in a shape thus liable to be vitiated by incorrectness and incompleteness.
Answer. Because, were it excluded, whatsoever information were not attainable from any other source would thereby stand excluded. Here, then, supposing that the information is necessary to a decision in favour of that side, here would be deception, and consequent misdecision, to a certainty; whereas, by admission given to it, certainty of being credited would not be given to it, even supposing it true; still less, supposing it false. Not being (unless in case of fraud, which is comparatively an improbable case) framed for the purpose,—the probability is, that, taken singly, how correct soever, it will be (in relation to the whole of the facts in the cause taken together) more or less incomplete; that, accordingly, it will be composed, in great part, if not in the whole, of circumstantial evidence; and since, without danger or suspicion of danger, circumstantial evidence is received, how slight soever, how weak soever, its probative force; so, therefore, may evidence of the description here in question, not to speak of any other.
Note,—that, if the species of makeshift evidence here in question be incorrect or incomplete, to the degree of utter or material falsity, it will of course be counter-evidenced by the direct and strenuous evidence of the party against whom it operates.
Instruction to the judge for avoidance of deception, considered as producible by the observance of rule second in the first of the two cases therein contained:—
It will on this occasion be matter for inquiry, whether, at the time of the utterance of the written discourse in question, he whose discourse it is, was not exposed to the action of some interest, of a pecuniary or in any other way of a self-regarding nature; and whether his interest did not at that time stand connected by some special tie of dependence or affection, with the interest of the party by whom, in the character of evidence, the paper in question is produced; and this in such sort and degree (the quantum of profit being moreover taken into consideration) as to render the practice of the characteristic fraud more or less probable in this case.
A book-keeper,* for example, charges with goods a customer or supposed customer of his master’s, knowing that by the person so charged the goods were neither received nor ordered. The book-keeper (not to speak of death, an event not likely to have been intended) ceases (viz. by expatriation or exprovinciation) to be forthcoming for the purpose of justiciability. Joined to the fabrication of the written document,—the expatriation or the exprovinciation, may it not have had for its cause the design of putting the undue profit into the pocket of the master? The testimony delivered by the paper is incorrect, to the degree of total falsity; and the falsehood is endeavoured to be screened from detection, by the non-interrogation of the author; while the author himself is effectually secured from punishment, by his non-forthcomingness, and that non-justiciability which is the result of it.
In a case of this sort, against the probability of the characteristic fraud, note this dilemma. If the claim (the unjust claim for the support of which it was designed) be made soon after the fabrication of the evidence, the expatriation or exprovinciation must have taken place in the mean time; and, being so timed, the non-forthcomingness of the fabricator will operate in the character of circumstantial evidence, giving probability to the supposed actual fraud:—if the claim be not made till long after, the non-demand for such a length of time is another article of circumstantial evidence, pointing the same way. And here, as above, note, that this disprobabilizing circumstantial evidence will be seen to have for its support the direct testimony (if received, as it ought to be) of the party against whom the fraud in question operates. And not only the particular account-book in question, but all the others kept by the same dealer, will be, or at least ought to be, producible at the instance of the party so charged.†
II. Case the second. He whose discourse the script appears to be, a party in the cause; the person at whose instance it is called for, a party on the opposite side; the tendency of the evidence consequently confessorial, or otherwise self-disserving.
Rule 3. In this case, let the script be admitted; but upon condition that the party, on recognising the discourse as his, shall he at liberty to deliver his own testimony (subject to interrogation) in explanation of it.‡
Question 1. Why give admission to evidence of this description, thus liable to be rendered, in respect of incorrectness or incompleteness, an instrument of deception?
Answer. Because, in so far as its tendency is to operate against him whose discourse it is (i. e. in so far as its tendency is confessorial,) it is the most trustworthy and satisfactory species of evidence that can be produced; no person being so little in danger of prejudicing a man in this way (either purposely, through mendacity, or heedlessly through temerity) as the man himself; and that the tendency of it (true or false, justly or unjustly) is not (in the opinion of the person best qualified to judge) to operate to the prejudice of him by whom it is called for, is sufficiently proved by the circumstance.
Question 2. Why annex as a condition, that at his own instance he may, subject of course to interrogation, be admitted to testify in explanation of it?
Answer. Because evidence of this description is in a particular manner liable to be, if not incorrect, at any rate incomplete. To admit it to receive explanation, is to allow what misstatements it may contain to be corrected—what deficiencies it may contain to be supplied. To refuse to it the faculty of receiving such explanation, is to keep it, by force of law, in a state, the tendency of which is to produce deception, misdecision, and injustice.*
Rule 4. Although, by death or other cause (such as incurable infirmity of mind, or expatriation,) he whose discourse this self-disserving testimony is, be incapable of testifying in explanation of the script,—admit it notwithstanding.
Question. Why admit it, under the danger of incorrigible incorrectness and unsupplyable incompleteness, as above?
Answer. First, because the danger of misdecision for want of information, in case of exclusion put upon the evidence thus circumstanced, appears in this case to be preponderant over the danger of misdecision by reason of information rendered deceptitious for want of such explanation as, had the party been forthcoming, it might have received. Suppose the information necessary to warrant a decision in favour of that side,—from the exclusion of it, misdecision takes place as a certain consequence; whereas, on the other hand, it is not certain that the information contained in it will be either incorrect or incomplete; and, if either incorrect or incomplete, it is not so likely to be so to the prejudice of the author’s side as to the prejudice of the other; nor, though it should be both incorrect and incomplete, is it certain but that the effect of the incorrectness may be corrected, and the deficiency supplied, by inferences, drawn partly from the script itself, partly from whatsoever other evidence there may be in the same cause.
The safety with which admission may be given to evidence of this description, seems to be indicated by experience. Even without any such security against deception as is here proposed, self-disserving evidence is admitted in this shape—admitted without reserve—in English practice. Even thus, the mischief (though, doubtless, it cannot be unfrequent) seems never yet to have become prominent enough to have been presented as an object of notice to the public mind: much less considerable would it be, were the means of amendment suffered to be applied to it as above.
III. Case the third. He whose discourse the script appears to be, a party in the cause, as before; but he himself the party at whose instance it is proposed to be produced: the tendency of it, consequently, self-serving.
Rule 5. In this case, likewise, let the script be admitted; the party being of course subject to interrogation on the subject of it, and in explanation of it; viz. by interrogatories propounded on the other side, and having, consequently, the effect of counter-interrogation.
Question. Why give admission to evidence so obviously liable, in so high and manifest a degree, to be mendacious, or (through bias or temerity) incorrect or partially incomplete, and thence to become an instrument of deception?
Answer. In the case of an extraneous witness, interest can never be, in any case, a sufficient ground for exclusion.† Moreover, in the same case, interests, as strong as any that are most apparent, may exist without being known, without a possibility of being brought to light; while, of the interest which a party has in the cause, the existence is known of course. In the case of a party, the sinister mendacity-promoting interest may in itself be no greater than in the case of an extraneous witness; and in particular in one of those instances in which, being undiscoverable, it cannot be taken for a ground of rejection. But in the case of a party, the interest, whatsoever be its effect in respect of the production of mendacity, is much less liable to be productive of deception, than in the case of an extraneous witness: because, being more manifest, presenting itself the more readily to the observation of every, even the most undiscerning, observer, the suspicion it excites will be stronger,—its probative force, consequently, weaker.
Whatsoever may be the danger, the probability, of mendacity, self-serving mendacity, and consequent deception, attached to the admission of the testimony of the party in his own behalf, deposing in the ordinary mode of oral responsion to oral interrogations,—that danger cannot, from the admission of a written discourse of the same tendency, though of a prior date, receive any increase: he is subject to counter-interrogation in the one case, and, by the supposition, so he is in the other. His extrajudicially composed written statement will, in his conception at least, operate in confirmation of the testimony he has to deliver in answer to interrogatories: But so, and without prejudice to his veracity or title to credence, it very well may; especially when so it happened that, at the time of his framing it, he had not, either in fact or in prospect, any such interest as that in virtue of which he became, at a subsequent point of time, a party in the cause.
Rule 6. Although, by death or other cause (as above,) he whose discourse this self-serving testimony is, be incapable of testifying in explanation of the script; admit it here also, notwithstanding.
Question. Why give admission to evidence liable, in a degree still so much higher, to be mendacious, or (through bias or temerity) incorrect or partially incomplete, and thence to become an instrument of deception?
Answer. For the same reasons as those brought to view in support of rules 2, 4, and 5, though not operating with so great a force. In some cases, as above, it may be as well entitled to credence as evidence from any other source, and at the same time of material and indispensable use towards bringing to light and explaining the facts that have application to the cause. And in this case, as in the case mentioned under the last preceding rule, so palpable are the considerations that operate in diminution of the probative force of the evidence, that the danger of its being estimated at a value over and above that which properly belongs to it, does not present itself as naturally preponderant.
No doubt but that, in general, a man will be more strongly disposed to make false evidence to serve himself, than to serve another. But, under the impression of his remaining under the eventual obligation of being counter-interrogated on the ground of this extra-judicially written self-serving evidence, no less sharply than on the ground of oral evidence of the same tendency delivered on the spot,—counter-interrogated, and with time in abundance to frame the plan of interrogation; or (in the case here supposed) under the assurance that such counter-interrogation cannot be escaped from definitively but by death, nor for a time but by expatriation or exprovinciation—both of them facts operating in the character of circumstantial evidence, to the discredit of such his written testimony; the sort of fraud in question does not present itself as likely, either to succeed if attempted, or so much as likely to be attempted.
Where exclusion of evidence would be improper, precautionary regulations, to diminish the chance of deception from such evidence, are very often proper, and in a high degree.
Let the danger of misdecision, the result of deception produced by casually written evidence, be, in comparison with the danger of misdecision from exclusion, ever so inconsiderable, whether in point of magnitude or probability,—still no expedient ought to be neglected by which, without its being productive of preponderant inconvenience in any other shape, the danger from admission promises to be diminished.
To an effect thus desirable, the following regulations present themselves as promising to be conducive:—
1. In every instance in which evidence of the description here in question is, in any of its possible modifications (as herein above enumerated,) produced,—let it be an instruction from the legislator to the judge, to state, at the time of his giving judgment, the infirmity of so much of the evidence as comes under this description, and (in the case of his having given credence to it notwithstanding) the consideration by which such his credence has been determined: and this, if judging without a jury, for the satisfaction of the parties, the audience, and the public at large; if sitting with a jury, for the instruction of the jury.
2. Whensoever, in consequence of the non-forthcomingness and non-interrogability of him whose discourse the script appears to be, it is admitted notwithstanding,—the judge having thought fit rather to give admission to it at that time, than to put off the decision in expectation of the forthcomingness and interrogation of the supposed author of such testimonial discourse; let it be a rule of law, that, so soon (if ever) as the means shall exist of performing the interrogation, without preponderant inconvenience in the shape of vexation and expense, such interrogation shall, at the instance of any party in the cause, be performable.
3. If, upon admission and consideration given to any such article of makeshift evidence, it shall seem good to the judge to determine in favour of the party at whose instance such evidence was received,—power should be given to the judge, on the declared ground of the infirmity of this part of the mass of evidence, to require, at the hands of the party in whose favour such judgment is pronounced, such security for eventual restitution ad integrum, and to take such other measures of precaution, by sequestration or otherwise, as may in his judgment be necessary and sufficient to prevent the happening of irreparable damage: such damage as might afterwards be found to have taken place, if, in consequence of the facts brought to light by such subsequent interrogation or any other means, it shall have turned out that the provisional decision so pronounced (as above) was, in point of fact, ill-grounded.
In ancient French law, casually written evidence appears not to have been considered in the light of makeshift evidence: it was considered, on many occasions at least, as more trustworthy than ordinary testimonial (viz. judicially exhibited testimonial) evidence. It appears to have been designated by, or at least comprehended under, the term commencement de preuve par écrit, mentioned in one of the fundamental codes; the business of which is, in certain cases, to exclude testimonial evidence, as insufficient in itself—insufficient, unless fortified by the support of an article of this species of written evidence.
The impropriety of this preference was not quite so great, under that actually established technical system, as it would be under a natural and rational system. In testimonial evidence, under that system, an infirmity produced by the insufficiency of the mode of receipt and extraction there employed, has been already brought to view (vol. vi. p. 399.) It might be superior in trustworthiness to testimonial evidence so extracted, and yet deserve no better appellation than that of a species of makeshift evidence. The species of written evidence in question is what it is—is the same thing, under all systems; but, under the original Roman, the Romano-Gallic system, testimonial evidence was bereft of part of its natural trustworthiness.
Another circumstance that helps to give colour to the preference, and operates even in diminution of the impropriety of it, is, that, in a certain point of view (i. e. with reference to a matter of fact of a particular description,) casually written evidence is really better than testimonial evidence. What it does not prove so well is, the truth of any of the matters of fact, asserted in and by the assertion made by the script. What it does prove, however, and still better than any testimonial evidence (prove, viz. upon the supposition of the authenticity of the script,) is the fact that assertions to that effect were, by the person in question, actually made—viz. made in and by the script at that time. In itself (supposing always the authenticity of it) it has, as to this point, all the trustworthiness that belongs to the best sort of preappointed evidence: the difference lies only in the property of authenticity, the proof of which is, in the case of preappointed evidence, made the object of special care, instead of being left to chance, as in this other case.
In respect of the source, and therefore of the grounds of comparative untrustworthiness or trustworthiness derivable from that quarter, casually written evidence is (it has been seen) susceptible of whatever modifications testimonial evidence is susceptible of. It may be extraneous; it may be self-regarding: self-regarding, it may be self-disserving, or self-serving: extraneous as well as self-regarding, it may be lowered by particular exposure to sinister interest, or by habitual improbity. To all these differences, important as they are, French practice, grounding itself on the Ordonnance, was in a manner insensible. A commencement de preuve par écrit, a something upon paper, there must be: but what that something should be, seems scarcely to have been considered as worth thinking about.
Even a lot of judicial testimonial evidence* appears to have been considered as constituting a commencement de preuve par écrit.
Judicial evidence, and casually written evidence, were thus completely confounded. So loose, in French law, was men’s conception of the different species of evidence!†
Of ex parte preappointed written evidence.‡
The order adopted requires that something should now be said on the subject of ex parte preappointed written evidence. But it is only in respect of its not being with propriety comprisable under the same denomination as extrajudicially and casually written evidence, that it demands a separate head. For, in respect of trustworthiness (i. e. of probative force,) it partakes of the same nature, and the same natural infirmities, as have been seen operating in diminution of the probative force of casually written evidence.
Preappointed it is; preappointed it cannot therefore but be denominated: but, in respect of probative force (not to speak of other properties,) it partakes not, in any degree, of the trustworthy character of the great mass of preappointed evidence; viz. that which is the work, either of all parties concerned in interest, acting in conjunction, or of some single, but naturally impartial, and commonly highly-stationed, hand.
In comparing ex parte preappointed with casually written evidence, the reader cannot but observe, that unintentional incorrectness is more probable in the case of casually written than of ex parte preappointed evidence, for exactly the same reason which renders such incorrectness still more probable in the case of common conversation than in either, viz. the greater probability of a deficiency of attention.
On the other hand, intentional incorrectness, for the purpose of the characteristic fraud, is, for this same reason, more probable in the case of ex parte preappointed, than it is in the case of casually written evidence of the same import: because, if a man sets himself to forge evidence, the greater apparent trustworthiness of ex parte preappointed evidence, arising from the cause above brought to view, would naturally induce him to give that form, rather than the form of casually written evidence, to the forged document.
The practical rule in regard to ex parte preappointed evidence is the same with that which has been already laid down as applicable to casually written evidence.
Is the person by whom it was committed to writing in existence, and accessible for the purposes of justice? Let him be examined vivâ voce in open court, subject to counter-interrogation; and let not the written evidence be admitted, otherwise than in the character of notes, to assist the memory of the deponent. Is the writer deceased, or the subjecting him to interrogation physically or prudentially impracticable? Admit the document, making allowance for all the circumstances which can operate in diminution of its credibility; hear everybody who can tell you anything concerning the document that can afford you any help in judging of the degree of confidence which it deserves; and make the same provision as in the case of casually-written evidence, for the ultimate interrogation of the writer, should it at any future period become practicable.
The grounds of all these arrangements being precisely the same in the case of ex parte preappointed, as in that of casually written, evidence, it would be superfluous to present them a second time to the reader.
Of adscititious evidence; i. e. evidence borrowed from another cause.
What is meant by adscititious evidence, as also in what its characteristic infirmity consists, has been seen in the preceding chapter. It remains to show, what is the part which ought to be taken in relation to it, by the legislator and by the judge.
Adscititious evidence divides itself into two kinds; which are not indeed mutually exclusive of one another, but which, for reasons that will appear as we advance, require to be distinguished.
1. Evidence inter alios: evidence already exhibited coram judice, in the character of judicial evidence, but in a cause between other parties; i. e. in which the list of the parties on both sides was (either in the whole, or as to some one or more of the persons contained in it) different from the list of the cause in question, the posterior cause.
2. Evidence alio in foro: evidence already exhibited in the character of judicial evidence, but in a cause which (whether carried on by the same list of parties, or by a list in any respect different) was carried on before a different tribunal: understand, by a tribunal in which the rules of evidence are known or suspected to differ more or less from those observed in the tribunal in question.
But the other tribunal, before which the evidence in question had thus on a preceding occasion been exhibited, may either have been a tribunal acting under the government of a foreign state, or a tribunal acting under the same government: and, in the latter case, a tribunal of a different province, or a tribunal of the same province: and in either case, a tribunal governing itself by the same rules of evidence, or a tribunal governing itself by rules of evidence in any respect different.
Between these two last-mentioned modifications of makeshift evidence—viz. evidence inter alios, and evidence alio in foro—there exists a very wide and material difference. Of evidence inter alios, the inferiority, as compared with the opposite case, that of evidence inter eosdem, is produced by an universally operating and irremoveable cause—viz. a deficiency, more or less considerable, in respect of that interest, on which the efficiency of the instituted securities for trustworthiness is apt to be in so considerable a degree dependent.
On the other hand, in the case of evidence alio in foro, the inferiority, real or supposed, depends altogether upon the accidental difference between the rules of evidence actually observed in one court, and those actually observed in another court. Its root lies in the diversities of practice that prevail as between court and court, in matters in which, if it were rational in all, the practice would, with very slight differences, be the same in all. It lies in the wretchedly imperfect state of this branch of procedure (not to speak of any other,) in every nation hitherto existing upon earth.*
The course proper to be taken, in respect to adscititious evidence, will be found to vary according as the document in question is a previous decision, or the whole or some part of the minutes of the evidence delivered in a previous cause.
In respect of the propriety of admission, both these species of adscititious evidence stand nearly on the same ground. Neither of them ought to be admitted, when better evidence from the same source is, without preponderant inconvenience, to be had; neither of them ought to be rejected, when it is not.
There is not, probably, that system of judicial procedure in existence (how bad soever the mode of taking evidence that it employs,) which does not afford a greater probability of right decision than of wrong; and in general the presumption of right decision is a very strong one. True it is, that no decision of a court of justice, certifying the existence of a fact, affords ground for believing it, any further than as such decision renders probable the existence, at the time when it was pronounced, of evidence sufficient to support it: and if the original evidence, on which the decision in the former cause was grounded, were forthcoming in the present, that evidence would be preferable, as a foundation for decision, to the mere opinion formerly pronounced on the ground of that same evidence by a judge. But it scarcely ever happens that evidence which has once been presented, admits of being again presented in as perfect a form as before. All that important species of evidence which is constituted by the deportment of the witness in the presence of the judge, is, in most cases, irrecoverably lost: such evidence as can be obtained now, might not be sufficient to warrant the former decision, and yet the decision, when pronounced, may have been perfectly borne out by the evidence on that occasion adduced. On the other hand, it is true that, in very many cases, by recurring to the original sources, sufficient evidence of the fact might even now be obtained, not, however, without more or less of delay, vexation, and expense: for the avoidance of which, it is often proper that the previous decision, though an inferior kind of evidence, should be received as a substitute, in the place of a superior kind.
As to the minutes of the evidence delivered in the former cause, it is sufficiently manifest that they ought not to be admitted, if recurrence to the original sources of evidence be practicable, without preponderant inconvenience,—if the witnesses in the former cause be capable of being examined, or such written or real evidence as it may have afforded be capable of being exhibited, in the present: unless when there may be a use in comparing two testimonies delivered by the same witness on two different occasions. But if (no matter from what cause) recurrence to the original sources be either physically or prudentially impracticable, the minutes of the former evidence should be admitted, and taken for what they are worth. If the evidence in question be oral testimony, being generally upon oath, subject to punishment in case of intentional falsehood, and to counter-interrogation, it is at any rate better than hearsay evidence, which, at its origin, had none of these securities: if it be real evidence, the official minutes of it are the very best kind of reported real evidence:—of which hereafter.
A question of greater nicety is, whether in any, and, if in any, in what cases, adscititious evidence shall be taken for conclusive?
In the case of minutes of evidence, the short answer is, never. The testimony of a witness, or of any number of witnesses, even if delivered in the cause in hand, and under all the securities which can be taken in the cause in hand for its correctness and completeness, ought not to be, nor, under any existing system of law that I know of, would be, taken for conclusive: much less a mere note of the testimony which they delivered on a former occasion, subject perhaps, indeed, to the same set of securities, but perhaps to a set in any degree inferior to those which there may, in the cause in hand, be the means of subjecting them to.
The case of a decision is more complicated. For the purpose of a prior cause, a decision has been given which supposes proof made of a certain fact: and the question is, whether, on the ground of such decision, such fact shall be taken for true—shall be considered as being sufficiently and conclusively proved—for the purpose of the decision to be given in a posterior cause?
It must of course be assumed, that the prior decision necessarily supposes evidence of the fact in question to have been presented to the judge, sufficient to create in his mind a persuasion of its existence: for there would be manifest impropriety in making the decision conclusive evidence of any fact not absolutely necessary to its legality; with whatever degree of probability the existence of such fact might be inferred from it.
1. Let the parties be the same; and the tribunal either the same tribunal, or one in which the same or equally efficient securities are taken for rectitude of decision. In this case, unless where a new trial of the former cause would be proper, the decision in the former cause ought to be taken as conclusive evidence (for the purpose of the posterior cause) of every fact, proof of which it necessarily implies. A lawyer would say, Quia interest reipublicæ ut sit finis litium. Not choosing to content myself with vague and oracular generalities, which are as susceptible of being employed in defence of bad arrangements of procedure as of good ones, I place the propriety of the rule upon the following more definite ground: that, as every person who would have an opportunity of applying the security of counter-interrogation in the second cause, has had such an opportunity in the first,—and as the rules of evidence which were observed in the former trial, were, by supposition, as well calculated for the extraction of the truth, as those which would be to be acted upon in the present,—the judge on the second occasion would have no advantage, in seeking after the truth, over the judge on the first, to counterbalance the disadvantage necessarily consequent upon lapse of time: and the decision of the first judge (though strictly speaking it be only evidence of evidence) is more likely to be correct, than that which the second judge might pronounce on the occasion of the posterior cause.
The case is different if fresh evidence happen to have been brought to light subsequently to the first trial, or if there be any reason for suspecting error or mala fides on the part of the first judge. But, in either of these cases, a new trial of the former cause would be proper. If the fact be sufficiently established for the purpose of the first cause, it is sufficiently established for the purpose of any subsequent cause between the same parties. It is only when there appears reason to think that it was improperly considered as established in the first cause, that there can be any use in going through the trouble of establishing it again in the second.
The above remarks apply also to the case in which the parties to the second cause are not the actual parties to the first, but persons who claim in their right—their executors, for example, or heirs-at-law; or even persons claiming under the same deed, or, in any other way, upon the same title; all those, in short, who in English law language are quaintly called privies in blood, in estate, and in law: for though these have not had an opportunity of cross-examining the witnesses in the former cause, other persons representing the same interest have.
2. Suppose the parties different, that is, with different interests, and the same reasons do not apply. The deficiency in respect of securities for trustworthiness, which constitutes the inferiority of adseititious evidence, may now have place to an indefinite extent, and is always likely to have place to some extent. It will very often happen that there was some part of the facts, known to the witnesses in the former cause, which would have made in favour of one or other party to the present cause; but which did not come to light, because, there being no one among the parties to the former cause in whose favour it would have made, it found no one to draw it out by interrogation. The former decision, therefore, although conclusive against the parties to the former cause, and all who claim under them, ought not to be conclusive against a third party. If it were, an opportunity would be given for a particular modification of the characteristic fraud: a feigned suit instituted by one conspirator against another, and judgment suffered by the latter to go against him, with the view of establishing a false fact, to be afterwards made use of in a suit against some other person.
The above observations constitute what foundation there is for the rule of English law, that res inter alios acta is not evidence:—of which hereafter. Note, en passant, the character of jurisprudential logic: a decision inter alios is not conclusive evidence, therefore not admissible.
3. Lastly, suppose the tribunals different, and governed by different rules: and let the rules of the tribunal which tried the first cause be less calculated to insure rectitude of decision than those of the tribunal which tries the second. In this case, with or without the deficiency in point of security arising from the difference of the parties, there is at any rate the deficiency which arises from the imperfection of the rules: the impropriety, therefore, of making the decision conclusive, is manifest. Its probative force will evidently vary, in proportion to the imperfection of the rules which govern the practice of the court by which it was pronounced; always considered with reference to the main end—rectitude of decision.
The probative force will be greater, cæteris paribus, when the court from which the evidence is borrowed is in the same, than when it is in a different, country; on account of the greater difficulty, in the latter case, of obtaining proof of the existence of the characteristic fraud. But this presumption is much less strong than that which arises from a difference in the mode of extraction.
We shall see hereafter to how great an extent nearly all the above rules are violated in English law.
[* ]Objection: If such be the design of it (it may be said,) the epichet casually written cannot with propriety be applied to it.—Answer: The denomination here given to this species of evidence, considered in the aggregate, is taken from the consideration,—not of what, by fraud, it may, on this or that particular and rare occasion, happen to it to be,—but of what in its ordinary condition it is, and what even in the extraordinary case of fraud it purports to be; for, in case of fraud, if known to be directed to the object to which in that case it really is directed (viz. that of operating in the character of evidence,) the object of it would be by such knowledge frustrated.
[* ]A more natural as well as concise mode of designation would have been to say, the writer, or the author. But what may have happened is, that he whose discourse it is, was not the writer of it, as in the case of dictation or transcription: and, by the word author, the conception is apt to be exclusively directed to a long and studied discourse; whereas the roughest and minutest scraps are capable of being produced in this character, and in practice are actually so produced: besides that who the real author is, is a point not always ascertained, or even ascertainable.
[† ]In a preceding Book (supra, Vol. VI. p. 386,) mention was made of memory-assisting memorandums. Employed for that purpose, they would require to be under the eye of the deponent, during and antecedently to the time of the delivery of his evidence: applied to the purpose here in question, they would require to be kept out of his sight till after the delivery of his evidence.
[* ]This is an instance taken from ex parte preappointed evidence; but it is equally good as an illustration of the application of the characteristic fraud to casually written evidence also.
[† ]According to English practice, the books must be produced, if notice is given. If the shopman who made the particular entry be alive, he must be called as a witness, when he may refresh his memory by looking at the entry, and may explain the circumstances attending it. If the person who made the entry is since dead, upon proof of his handwriting, the entry will, under certain restriction, be received as evidence. Digby v. Stedman, 1 Esp. N. P. C. 327; Price v. Lord Torrington, 1 Salk. 285; Cooper v. Marsden, 1 Esp. N. P. C. 2; Evans v. Lake, Bull N. P. 282.—Ed.
[‡ ]Interrogation, viz. in the oral mode, or in the epistolary mode (where the epistolary mode is allowed,) or in both, according to the circumstances of the case. See Book III. Extraotion.
[* ]Refusal of such faculty of explanation is among the rules of English practice. [When the letter is from either of the parties to the suit, no explanation can be given by the writer, inasmuch as neither party can be produced as a witness. But it is competent to the counsel to give any explanation in his address to the jury.—Ed.]
[† ]See Book IX. Exclusion; Part III. Deception; Chap. III. Interest.
[* ]A lot of self-regarding, self-serving and disserving evidence: the testimony of the party, extracted, at the instance of the adverse party, by interrogation sur faits et articles.—Causes Célèbres.
[† ]Plaidoyers de Linguet, vii. 409. De Gouy’s case. “Quelles preuves écrites invoque-t-elle pour les dementir? Un prétendu certificat arraché à un domestique timide, qui n’en a pas prévu les conséquences, et démenti par elle-méme dans sa plainte.” A curious certificate indeed! The witness, for anything that appears, still alive; his testimony not allowed to be judicially extracted; but, in the form of this extrajudicial script, and under the notion of a commencement de preuve par écrit, exhibited and argued upon! By the same rule that the testimony of this servant was thus extracted in the form of what is called a certificate, so on any occasion might that of any other witness; and the security afforded by judicial examination discarded altogether.
[‡ ]This and the following section were left by the Author in the state of mere fragments. Several memoranda, far too incoherent to be inserted, prove it to have been his intention to enter more fully both into the subject of ex parte preappointed evidence, and into that of adscititious evidence. It does not appear, however, that he carried this intention into effect.—Editor.
[* ]Here ends all that Mr. Bentham had written on the subject of adsctitious evidence, with the exception of some loose memoranda. What follows was chiefly made up from these memoranda by the Editor.