Front Page Titles (by Subject) CHAPTER XII.: ABERRATIONS OF ENGLISH LAW IN REGARD TO MAKESHIFT EVIDENCE. - The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2)
Return to Title Page for The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2)
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Also in the Library:
CHAPTER XII.: ABERRATIONS OF ENGLISH LAW IN REGARD TO MAKESHIFT 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.
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.
ABERRATIONS OF ENGLISH LAW IN REGARD TO MAKESHIFT EVIDENCE.
Such are the arrangements, such the rules of judging, that have been suggested by a regard for the ends of justice: the avoidance of misdecision, on one hand; and, on the other, the reducing, on every occasion, to their least dimensions, the collateral and never completely avoidable inconveniences of delay, vexation and expense.
If the above arrangements are well adjusted to such their ends—and if the arrangements actually pursued by English jurisprudence were also well adjusted to these same ends,—those actually existing arrangements could not, in any point, he very widely distant from the above proposed ones. So much for the argumentative picture of things. The picture next to be given must be taken from life. If, on this occasion, the reader has prepared his mind to view a system of arrangements suggested by, and bonâ fide directed to, the ends of justice, great indeed will be his surprise and disappointment. If, on the other hand, the coutrary hypothesis be assumed—if, on considering the natural opposition of interest on this ground between the governors and the governed, his assumption should be, that, in the views and wishes of the authors of these arrangements, the difference between right decision and misdecision has been in general a matter of indifference—and that, in so far as was conducive to the profit of the governing profession, not the minimum, but the maximum, of delay, vexation, and expense, has been the object of endeavour,—he will find every object consistent with that assumption—every arrangement flowing naturally from that source.
An explanatory hint must in this place be given to the non-professional, and more particularly to the non-English, reader. Observing one copy of the same document rejected, at the same time that another copy of the same instrument is admitted,—if, for anything that appears, both are in existence and producible, it may naturally enough appear to him that the rejection of either, however ill-founded in principle, would be matter of indifference in practice. Reasonable as it is, the supposition would be erroneous and delusive. Under a different system of procedure—under the system drawn from Roman law, and generally prevalent on the continent of Europe,—it would either be agreeable to, or at least less widely distant from, the truth. But in English procedure, no option thus made, if it be exclusive, is ever a matter of indifference. The document thus excluded is always the document, whatever it be, that happens to have been tendered. The consequence of the exclusion is, not a simple reference to the approved document, without further delay, vexation, or expense, but an actual loss of the cause to the party whose document is thus rejected. The direct injustice thence resulting as to the main point in dispute, is not indeed, in this case, in every instance, irreparable; but in many and many an instance it is: either because, under the existing arrangements, the door is not left open to a fresh demand on the same ground; or because, in the interval, and before it can receive a decision, either some necessary evidence has perished, or the fund necessary for the alimentation of the suit has been exhausted. Be this as it may, and according to the least calamitous result, a fresh trial, hearing, or whatever be the name of it, is necessary—in a word, a fresh suit: in consequence of which, the delay, vexation, and expense, bestowed upon the preceding one, are in a great part (or, as the case may be, in the whole) wasted and thrown away.
Here then, once for all, let this deplorable and but too indisputable truth be borne in mind: that—howsoever it might be under a natural system, and even in the technical system of any other country—in the technical system of English jurisprudence there are no innoxious, no completely reparable, nor anything like completely reparable, mistakes; and that, whatsoever absurdity is discernible—fraud, and the spirit of extortion, may or may not have been the cause—plunder, oppression, and affliction, are infallibly the result.
On this ground, as on every other part of the vast demesne of jurisprudence, whatever is at variance with the ends of justice will be to be referred, in proportions not always to be distinguished, to the two grand sources of misdecision,—improbity and folly. The improbity, has for its cause the as yet unremedied but not irremediable, opposition of interests between this class of governors and the governed. The folly has for its cause, at least for a very principal one of its causes, one of the essential characters of jurisprudential law—the taking the conceptions and practice of a less experienced and less informed, as a standard for the notions and practice of a more experienced and better informed, age.
I proceed to bring to view the most important of the aberrations from the above rules, exemplified in English law; together with the inconveniences with which they respectively appear pregnant.
1. The first consists in admitting, at the instance of the plaintiff, to the prejudice of the defendant, in the lifetime of the defendant, a letter or memorandum in his hand: the defendant, though alive, being neither compelled nor permitted to stand forth himself in the character of a deposing witness, to be examined upon oath (as a non-litigant witness would be) touching the facts brought to view in such written discourse.* And so in the case of a written statement of the plaintiff’s, at the instance of the defendant.
By the influence of a superstition, which has been already touched upon, and which will be more thoroughly discussed in another place, the evidence of a defendant is not permitted to be extracted in the mode recognised to be the best. But the objection confines itself to the best mode: no sooner does a bad mode present itself, than the prohibition is taken off.
Refusing to hear the testimony of a defendant, extracted in the way of vivâ voce examination, the law refuses (as may well be imagined) to receive the testimony of the same person exhibited in the form of written non-judicial evidence—in the form of a letter or memorandum, not designed at the time of writing it (or at least not purporting to be designed) to be exhibited as evidence. So far, at any rate, it is consistent: and, admitting the propriety of not suffering the defendant to be examined in the character of a witness, unexceptionable.
But when the plaintiff, having by any accident possessed himself of a letter or memorandum in the handwriting of the defendant, thinks fit on his part to exhibit it as evidence; then the rule goes for nothing, and the evidence is admitted. In this admission, the law considers itself as safe against deceit: and so it undoubtedly is; viz. on one side, the side of the plaintiff,—the only side to which, on this occasion, its views appear to have extended. To the prejudice of the plaintiff, the admission of it will not be productive of injustice. Why? Because it is he who produces it. So far is right: the reason is a conclusive one. But the defendant? are his interests taken equal care of? The answer is, No: they are entirely neglected. In a multitude of cases—each of them capable of being realized, each of them, doubtless, every now and then realized,—conclusions as contrary to truth, as they are prejudicial to the defendant, will every now and then be drawn: necessarily drawn, when a deaf ear is turned to those vivâ voce explanations, by which the truth of the case might, in its whole extent, be brought to light.
2. The second aberration consists in the exclusion put upon the like written testimony of a witness, litigant or non-litigant, after his decease: a point of time, after which, on the one hand, the examination of such witness is become impossible; on the other hand, the capacity of profiting, in his own person at least, by such his testimony, supposing it false and fraudulent, is at an end.
Such (it will be seen) is the course taken in general by the English law: a course crossed indeed by a multitude of exceptions, the propriety of which can by no other arguments be maintained, than by such, the validity of which is the condemnation of the general rule.
In the whole field of evidence, which is as much as to say, in the whole field of justice, few points can be of greater importance. Under this head come the books of a shopkeeper, including the register kept by him of the monies due to him. That these books should not of themselves, and during the master’s lifetime, be conclusive evidence in his favour, the evidence unsanctioned, and the author uncross-examined, is a proposition too plain to stand in need of argument. Each shopkeeper might, at that rate, impose a tax to any amount, on any number of persons, at his choice. That the written evidence even of his servant in his behalf should not be received as conclusive—should not be received at all during the lifetime of such servant, such servant being capable of being examined in the regular mode, and yet not examined—is another proposition which I have endeavoured to establish. But if, after the death of such servant, the entries made by him were not permitted so much as to be received in the character of evidence, what would be the consequence?* That every tradesman’s title to the monies owing to him for his goods, would be dependent, completely dependent, on the life of the servant, the book-keeper, the journeyman, the porter, by whom they had been respectively delivered to his customers. The death of the servant, and the ruin of the master, would be the effect of the same inevitable cause.
A word, a phrase, a broken hint, an uncompleted and perhaps uncompleteable sentence,—such is the garb in which Reason clothes herself on those great and rare occasions, on which she vouchsafes to visit the shelves of English law. Sometimes the word “necessity,” sometimes the phrase “course of trade,” is the fragment of a reason, under favour of which a pretence is sought for the breach made, upon this ground, in the irrational and intolerable rule. But to what use introduce necessity?—what justification can necessity afford for the breach of any rule laid down by reason—of a rule prescribed by any comprehensive view of the dictates of utility? The species of evidence being admitted, one or other of two opposite results—deception, or non-deception, is the most probable. If admitted, would it be oftener productive of deception, and thence of erroneous decision, than of a just persuasion, and thence of a decision according to truth and justice? In this case, where is the necessity (let what will be understood as signified by that vague appellation)—where or what is the necessity that can warrant the admission of the fallacious light?
Apply the same observation to the compound term, the course of trade. Trade is a good thing; it is universally agreed to be so: great sacrifices, though not always very advantageous ones, are made continually in its service. But is it in the nature of trade, any more than of any other desirable object, to be benefited or promoted by the letting in a species of light, of which injustice oftener than justice will by the supposition be the consequence? Is it in the nature of trade, any more than of justice, to receive advancement by a system of decision, of which the effect will be, to put the fruits and profits of trade more frequently into the pocket of a cheat than of the lawful owner?
Of two things, one. The evidence admitted either promises to be most frequently productive of justice, or of injustice. If of justice, no such word as necessity or trade can be necessary—if of injustice, no such word can be sufficient, to warrant the admission of it.†
It has been observed already, that there is a whole class of facts, for the proof of which, in spite of all excluding rules, a door is thrown wide open to all sorts of evidence without scruple: not only to this but too suspicious evidence, but to the much more suspicious and fallacious evidence, which, by English lawyers, has so often been confounded with it: I mean hearsay evidence. And what are these facts? I can think of but one attribute by which, indeterminate as it is, they can be designated; and that is, ancient: ancient facts—facts tending to the establishment of family relation, locally obligatory custom, ancient possession of rights of partial ownership, and the like. If, on one part of the ground more than another, the argument from necessity can be said to apply with peculiar force, it will be on this. On this sort of ground, exclude this sort of evidence, you exclude all evidence. The witch of Endor, the sibyl once so complaisant to the curiosity of Ulysses, are not now in office. Ghosts cannot now be brought into court, obtorto collo, to be sworn and cross-examined. An interval of a certain length, has it elapsed between the present time and the time of the fact or supposed fact?—such evidence as the nature of things furnishes, you must admit, or none. Written extrajudicial evidence, if it be to be had, howsoever it happens to present itself, it is your best chance: failing this, even hearsay evidence—hearsay evidence, remote from the fountain head by any number of degrees, and with or without being able to trace it to the fountain head, or so much as to number the degrees. Such is the choice, in respect of sorts of evidence: one of these two, or none. But, even in this case, of what avail, or even import, is the plea of necessity, any more than in any other? As to the import, here indeed it is plain enough that such is the case—this evidence or none. But, in this case, as in every other, is not the absence of all evidence a preferable result to the presence of a species of evidence, which, be the case what it will, is more likely to give birth to a wrong judgment than to a right one?
In vain would it be to say, that in this case the danger of deception is in any respect less than in any other: on the contrary, it is even greater. Recent testimony—testimony concerning recent facts, if mendacious or otherwise incorrect, possesses its chance of receiving confutation or correction in the regular and most satisfactory mode, from the sanctioned and scrutinized testimony of persons still alive: circumstantial evidence will, in the character of indicative evidence, afford a clue to this or that lot of vivâ voce evidence—a clue which fraud, with all its cunning, may not have suspected. But, in the case of ancient facts, who shall follow out the clue that has been broken by the same hand that cut the thread of life?
It may be thought superfluous, after this, to add any such reflections as the following:—1. That, in point of distance of time, no determinate line has been so much as attempted to be drawn, nor could easily be drawn, between these ancient facts and facts of more ordinary occurrence; 2. That, among the facts thus treated as ancient facts, are facts that may have been but as of yesterday; 3. That in particular, in a case that has given birth to a decision pronouncing the admission of even hearsay evidence, the length of interval extended not beyond twenty years; 4. That the length by which, in the proposed rule, the place of the line which separates admission from exclusion is proposed to be determined, is the length of human life—a length which, though in one case it may be but that of an atom, may in another case be some number of times the above recorded and admitted length of twenty years; and 5. That the true criterion between cases for admission and cases for rejection, is constituted, not by the length of time, considered in itself, but by the existence or non-existence of the faculty of submitting the testimony to the action of the scrutinizing and purifying tests. The witness, in mind as well as body, is he still ready at the call of justice? Admit not his written statement, though it have an antiquity of sixty, of eighty years, to plead for it. Has he taken his departure from the world we live in? Admit the paper, though the ink have scarce yet ceased to wet it. But may it not then be false? false, and fabricated for the purpose? Indubitably it may: though, in our own times at least, such fraud, or any mark of such fraud, committed by a hand so circumstanced, is neither natural nor common. But is the presence of such fraud, in each case, more probable than the absence? And, where present, is the success of it more probable than the failure, after all the warning recommended to be given of it, and which so naturally will be given of it? And are these the only times in which the propensity to fraud has been to be found in the nature of man? Forged deeds, and other fruits of lettered fraud, are they in greater proportion to true and authentic writings in these our times, such as they are, than in the times of monkery and monkish charters?
Such are the questions of minor account, that present themselves as applicable to this particular case. But have they not been already superseded and rendered superfluous by that broadest and all-comprehensive line of argument, which covers the whole of the ground to which the species of evidence now before us is applicable?
3. A third aberration consists in receiving the testimony of a witness in the unsatisfactory form of casually written evidence, upon the ground of a mere unforthcomingness on his part at the time; without any inquiry into the cause, whether temporary or perpetual;* and without provision for reparation of the wrong, in the event of its being proved false by subsequent vivâ voce examination in the regular and proper mode. The admissibility of this evidence, under these circumstances, being established, what would be the consequence? That, where the value at stake was sufficient to pay the expense of the fraud, a man would procure his witness, in the first place, to fabricate a piece of written evidence adapted to the circumstances of the case; in the next place, to keep out of the way till after it had been put to its judicial use, and a decision had been grounded upon it. Or, by procuring the like testimony from a man, whose known intention it was never to revisit the country in which it was to be fabricated, the expense of purchasing absence might thus be saved.
Not that it follows, by any means, that if, under favour of the rule protested against, the characteristic fraud were even to be frequently attempted, the attempt would be as frequently, or anything like as frequently, successful. With the warning which it is here proposed should be given of it, and which, without any such proposal, would naturally be given of it, to the judge of fact by the judge of law, I should not expect to see such evidence frequently productive of a decision on that side, even where the truth of the case was on that same side; much less to see any frequent reason for suspecting that fraud had by this means been rendered triumphant. But where, without incurring any such risk, the purposes of substantial justice might in an equal degree be accomplished, the danger, whatever it may amount to, seems to have nothing to compensate it.
Symptoms of a tendency at least to admit in this unguarded way evidence in its own nature so suspicious—so apt to be fallacious, has been here and there betrayed by English law.
4. In regard to the admission of transcripts, the aberrations of English law are still more remarkable.
In the case where the original is not absolutely unproducible, the question respecting the admission of transcripts will be apt at first to present itself as of little or no practical importance: if the transcript will serve, let it be admitted—if not, let the original be produced. Thus, in effect, the matter will stand, taking the world at large. But in English procedure, the spirit of chicane has, on this part of the ground, as on so many others, contrived to raise a cloud of frivolous distinctions, under the influence of which the interests of justice have in numerous instances gone to wreck. In that system of procedure, so far as the use of trial by jury extends, whatever evidence is capable of contributing to form the ground of decision, must be presented, every part of it, within the compass of a given part of a given day. At that period a transcriptural document being presented, if it be a case where a transcript is allowed to be received in place of the original, well and good; if not, and the document is a necessary one to the side of the party by whom it was produced, the cause is lost for that time at least, i. e. in respect of the action then depending: and whether the loss be reparable or no, depends upon a variety of circumstances. If the transcript be presented on the defendant’s side, and essential to it—and if the case be of the number of those in which a transcript, or that sort of transcript, happens to be found inadmissible,—woe to the man whose lot it happens to be to occupy the station of defendant! If it be the pleasure of the judge to grant him a new trial, on condition of taking his chance for that expensive remedy, the omission may be repaired—the original may be produced. But at the best, and even at that expense, the reparation of the omission—the saving his cause from perdition and injustice, and himself perhaps from ruin—depends not upon himself; whereas, were his station in the cause that of the plaintiff, it would depend upon himself to suffer what is called a nonsuit, and, at the price of a fresh action, to substitute the admissible document for the inadmissible one.
On the ground of transcriptural evidence, among the inconveniences by which suitors are apt to be tormented, those which consist in undue decision or failure of justice having the spuriousness or incorrectness of this species of evidence for their cause, constitute but a small proportion of the aggregate mass. It is in the triple shape of delay, vexation, and expense, that the principal part of the mischief displays itself.
Transcripts are made of a mass of writing to any extent, where a glance of the original would be sufficient:
Of a mass of writing, of which but a small part is relevant, or at least necessary to the purpose, the whole is transcribed without distinction:
Transcripts are made by an official hand, at an extra expense—an expense sometimes altogether arbitrary, and most commonly excessive, as being at a monopoly,—where transcripts made at an ordinary expense might afford a lot of evidence equally satisfactory to an impartial or candid mind:
Originals are fetched from unlimited distances, in official, or other appropriate, and consequently high-paid custody,—when transcripts in the way of extract, or even entire, might be obtained and sufficiently authenticated at an inferior price.
The mass of delay, vexation, and expense, which has for its cause any real bonâ fide disbelief or suspicion as to the genuineness or correctness of a lot of transcriptural evidence, is perhaps not a tenth, not a twentieth, not a hundredth part, of that which has mala fides, on the one part or the other, for its cause. In the view of guarding against spuriousness and incorrectness, certain regulations are established. If, in any the most minute particular, party A is found departing from these regulations, party B takes advantage of the flaw. Each party, sure of being opposed by morally unjust, though legally just, objections on the part of the other, heaps paper upon paper, expense upon expense. A party, though secure in his own mind against objection on the part of his adversary, will, for the sake of inflicting vexation on him, pretend to apprehend vexation from him; or rather, without so much as the necessity of any such pretence, act as if he apprehended it. Agents of the parties, on both sides, and of all descriptions, official scribes of all descriptions, all have an interest in increasing the load by additions in themselves unnecessary; all have pretences for giving birth to such increase; all have it more or less in their power to give birth to it. Judges, by whom such abuses should be watched with a sleepless eye and averted by an inexorable hand, contribute not so much to reduce the load as to increase it; by useless and groundless punctilios, the result of some caprice of the imagination—of partial views, in which the contemplation of some ill-chosen means has eclipsed the prospect of the ultimate and proper end, the prevention of the inconveniences so often mentioned.
Parties, their agents, and the subaltern officers of justice, each on his own part aims at profitable injustice: judges second the endeavours of all.*
5. Few questions have been more agitated in English law than those which relate to the admissibility of, and the effect to be given to, different articles of adscititious evidence.† The subject occupies sixty closely printed nominal octavo, real quarto pages, in Phillipps’s exposition of the law of evidence. Of a subject thus extensive, more than a very general view cannot be expected to be given in the present work: nor is it necessary for our purpose to go beyond the more prominent features.
One remarkable circumstance is, that the whole body of the rules of law relating to this subject are, with a very small number of exceptions, exclusionary. Either the decision given in a former cause is said not to be evidence; and then it is that decision which is excluded: or it is said to be conclusive evidence; and then an exclusion is put upon the whole mass of evidence, howsoever constituted, which might have been capable of being presented on the other side.
In saying this, enough has already been said to satisfy any one, who has assented to what was said in a former chapter concerning adscititious evidence, that nearly the whole of the established rules on this subject, except to the extent of the single and very limited case in which it was there seen that exclusion is proper, are bad. Accordingly, the rule that a judgment directly upon the point is conclusive in any future cause between the same parties, is a good rule—it is almost the only one that is.
Even this rule is cut into by one exception: that verdicts in criminal procedings are not only not conclusive, but are not even admissible evidence, in civil cases.‡ For this exception, two reasons are given: the one founded on a mere technicality—the other on a view, though a narrow and partial one, of the justice of the case. The first is, that it is res inter alios acta: the parties in the civil cause cannot, it is said, have been also the parties in the previous criminal one, the plaintiff in a criminal proceeding being the king. It is obvious, however, that the king’s being plaintiff is in this case a mere fiction. Although the party in whose favour the previous verdict is offered in evidence, was not called the plaintiff in the former proceeding, there is nothing whatever to hinder him from having been the prosecutor, who is substantially the plaintiff. Now if he was the prosecutor, and his adversary the defendant, it is evident that the cause is between the same parties; that it is not, in reality, res inter alios acta; and that if it be treated as such, justice is sacrificed, as it so often is, to a fiction of law.
The other reason is, “that the party in the civil suit, in whose behalf the evidence is supposed to be offered, might have been a witness on the prosecution.”∥ This is true. He might have been a witness; and the previous verdict might have been obtained by his evidence. But it might be, that the contrary was the case. Whether he was a witness, or not, is capable of being ascertained. If he was not a witness, why adhere to a rule which cannot have the shadow of a ground but upon the supposition that he was? But suppose even that he was a witness, and that the verdict which he now seeks to make use of, was obtained from the jury by means of his own testimony. This will often be a very good reason for distrust; but it never can be a sufficient reason for exclusion. Under a system of law, indeed, which does not suffer a party to give evidence directly in his own behalf, it is consistent enough to prevent him from doing the same thing in a roundabout way. A proposition, however, which will be maintained in the sequel of this work, is, that in no case ought the plaintiff to be excluded from testifying in what lawyers indeed would call his own behalf, but which, by the aid of counter-interrogation, is really, if his cause is bad, much more his adversary’s behalf than his own. Should this opinion be found to rest on sufficient grounds, the reason just referred to for not admitting the former verdict as evidence, will appear to be, on the contrary, a strong reason for admitting it.
Thus much may suffice, as to the first rule relating to this subject in English law—a rule which has been seen to be as reasonable, as the above-mentioned exception to it is unreasonable. We shall find few instances, in the succeeding rules, of an approach even thus near to the confines of common sense.
For, first, a judgment is not evidence, even between the same parties, “of any matter which came collaterally in question, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.”* By the words not evidence, lawyers sometimes mean one thing, sometimes another: here, however, not admissible in evidence, is what is meant. That it ought not to be conclusive as to any fact but such as the judgment, if conformable to law, necessarily supposes to have been proved, is no more than we have seen in a former chapter: that, however, because it ought not to be made conclusive, it ought not to be admissible, is an inference which none but a lawyer would ever think of drawing. A common man’s actions are received every day as circumstantial evidence of the motive by which he was actuated: why not those of a judge?
The next rule is, that a verdict or judgment on a former occasion, is not evidence against any one who was a stranger to the former proceeding: that is, who was not a party, nor stood in any such relation to a party, as will induce lawyers to say that he was privy to the verdict. The reason why a judgment under these circumstances is not evidence, is, that it is res inter alios acta. But we have seen already† that its being res inter alios acta, though a sufficient reason for receiving it with suspicion, is no reason for excluding it.
The more special reason, by which, in the case now under consideration, this general one is corroborated, is, that the party “had no opportunity to examine witnesses, or to defend himself, or to appeal against the judgment.”‡ This being undeniable, it would be very improper, no doubt, to take the judgment for conclusive. On this ground, what is the dictate of unsophisticated common sense? A very obvious one. As the party has not had an opportunity to examine witnesses, to defend himself, or to appeal against the judgment, at a former period, let him have an opportunity of doing all these things now: let him have leave to impeach the validity of the grounds on which the former judgment was given, and to show, by comments on the evidence, or by adducing fresh evidence, that it was an improper one: but do not shut out perhaps the only evidence which is now to be had against him, merely because it would be unjust, on the ground of that evidence, to condemn him without a hearing. In the nature of a judgment is there anything which renders a jury less capable of appreciating that kind of evidence, than any other kind, at its just value? But it is useless to argue against one particular case of the barbarous policy which excludes all evidence that seems in any degree exposed to be untrustworthy. The proofs which will be hereafter∥ adduced of the absurdity of the principle, are proofs of its absurdity in this case, as in every other.
Another curious rule is, that, as a judgment is not evidence against a stranger, the contrary judgment shall not be evidence for him. If the rule itself is a curious one, the reason given for it is still more so:—“Nobody can take benefit by a verdict, who had not been prejudiced by it, had it gone contrary:” a maxim which one would suppose to have found its way from the gaming-table to the bench. If a party be benefited by one throw of the dice, he will, if the rules of fair play are observed, be prejudiced by another: but that the consequence should hold when applied to justice, is not equally clear. This rule of mutuality is destitute of even that semblance of reason, which there is for the rule concerning res inter alios acta. There is reason for saying that a man shall not lose his cause in consequence of the verdict given in a former proceeding to which he was not a party; but there is no reason whatever for saying that he shall not lose his cause in consequence of the verdict in a proceeding to which he was a party, merely because his adversary was not. It is right enough that a verdict obtained by A against B should not bar the claim of a third party C; but that it should not be evidence in favour of C against B, seems the very height of absurdity. The only fragment of a reason which we can find in the books, having the least pretension to rationality, is this,—that C, the party who gives the verdict in evidence, may have been one of the witnesses by means of whose testimony it was obtained. The inconclusiveness of this reason we have already seen.
The rule, that a judgment inter alios is not evidence, which, like all other rules of law, is the perfection of reason, is in a variety of instances set aside by as many nominal exceptions, but real violations, all of which are also the perfection of reason. To the praise of common sense, at least, they might justly lay claim, if they did no more, in each instance, than abrogate the exclusionary rule. But if the rule be bad in one way, the exceptions, as usual, are bad in the contrary way.
One of the exceptions relates to an order of removal, executed, and either not appealed against, or, if appealed against, confirmed by the quarter-sessions. This, as between third parishes, who were not parties to the order, is admissible evidence, and therefore (such is jurisprudential logic) conclusive: the officers, therefore, of a third parish, in which the pauper may have obtained a settlement, have it in their power, by merely keeping the only witnesses who could prove the settlement out of the way till after the next quarter-sessions, or at farthest for three months, to rid their parish for ever of the incumbrance. The reason of this is, “that there may be some end to litigation,”* —a reason which is a great favourite with lawyers, and very justly. Litigation—understand, in those who cannot pay for it—is a bad thing: let no such person presume to apply for justice. One is tempted, however, to ask, whether justice be a thing worth having, or no? and if it be, at what time it is desirable that litigation should be at an end? after justice is done, or before? It would be ridiculous to ask for what reason it is of so much greater importance that litigation between parishes should have an end, than litigation between individuals; since a question of this sort would imply (what can by no means be assumed) that reason had something to do with the matter.
What is called a judgment in rem in the exchequer, is, as to all the world, admissible, and conclusive. The sentence of a court of admiralty, is, in like manner, as against all persons, admissible, and conclusive. So is even that of a foreign court of admiralty. The sentence of ecclesiastical courts, in some particular instances,—this, like the others, is admissible, and, like the others, conclusive. It is useless to swell the list. Equally useless would it be to enter into a detailed exposition of the badness of these several rules. The reader by whom the spirit of the foregoing remarks has been imbibed, will make the application to all these cases for himself.
The law recognises no difference in effect, between the decision of a court abroad, and that of a court at home. The sentence of any foreign court, of competent jurisdiction, directly deciding a question, is conclusive, if the same question arise incidentally between the same parties in this country: in all other cases it is inadmissible. The case of debt, in which it is admissible, but not conclusive, is partially, and but partially, an exception; for even in this case the foreign judgment is, as to some points, conclusive.†
To make no allowance for the different chance which different courts afford for rectitude of decision, would be consistent enough as between one court and another in the same country: in England, at least, the rules of the several courts, howsoever different among themselves, being each of them within its own sphere the perfection of reason, any such allowance as is here spoken of would be obviously absurd: that must be equally good everywhere, which is everywhere the best possible. Of foreign judicatories, however, taken in the lump, similar excellence has not, we may venture to affirm, been ever predicated by any English lawyer, nor is likely to be by any Englishman; for Englishmen, how blind soever to the defects of their own institutions, have usually a keen enough perception of the demerits, whether of institutions or of anything else, if presented to them without the bounds of their own country. Were a consistent regard paid to the dictates of justice, what could appear more absurd than to give the effect of conclusive evidence to the decisions of courts in which nearly all the vices of English procedure prevail, unaccompanied by those cardinal securities—publicity and cross-examination—which go so far to make amends for all those vices, and which alone render English judicature endurable? Yet the rule which, in so many cases, excludes those decisions altogether, errs nearly as much on the contrary side; for, the difficulty of bringing witnesses and other evidence from another country being generally greater than that of bringing them from another and perhaps not a distant part of the same country, there is the greater probability that the decision in question may be the only evidence obtainable.
After what has been observed concerning the admissibility of prior decisions in English law, little need be said on that of prior depositions. Wherever the decision itself is said to be res inter alios acta, the depositions on which it was grounded are so too; and are consequently excluded. In other cases they are generally admissible: though to this there are some exceptions. Happily nobody ever thought of making them conclusive.
[‡ Among the causes which have contributed to heap vexation upon suitors on the ground of evidence, one has been the scramble for jurisdiction (i. e. for fees) between the common-law courts, and the courts called courts of equity. Such was the hostility, the common-law courts refused to give credit to whatever was done under authority of their rivals. Depositions in equity were not admissible evidence at common law. When the work of iniquity is wrought by judicial hands, there must always be a pretence; but no pretence has been too thin to serve the purpose. It consists always in some word or phrase: and any one word that comes uppermost is sufficient.
The pretence on this occasion was,—a court of equity is not a court of record. A better one would have been, to have said, it is not a tennis court. The consequence would have been equally legitimate; and the defects of the common-law courts, and the effrontery of the conductors of the business, would not have been placed in so striking a point of view.
With much better reason (if reason had anything to do in the business) might the equity courts have refused the application of courts of record to the common-law courts. In every cause, the evidence, and that alone, is the essence of the cause; in it is contained whatever constitutes the individual character of the cause, and distinguishes it from all other causes of the same species: to a cause, the evidence is what the kernel is to the nut. In a court of equity, this principal part of the cause, though not made up in the best manner, is at any rate put upon record, or, in plain English, committed to writing, and preserved. In a court of law this is never done. The evidence, like the leaves of the Sibyl, is committed to the winds. What goes by the name of the record is a compound of sense and nonsense, with excess of nonsense: the sense composed of a minute quantity of useful truth, drowned and rendered scarce distinguishable by a flood of lies, which would be more mischievous if they were less notorious.
In the court of Exchequer, the same judges constitute one day a court of equity, another day a court of law. What if the occasion for the rejection of the evidence had presented itself in this court? In the hands of an English judge, the jus mentiendi is the sword of Alexander. On the declared ground of iniquity, stopping every day their own proceedings, why scruple to refuse credit to their own acts?]
It is now, however, fully settled, that the answer of the defendant, as well as the depositions of witnesses, in Chancery, are evidence in a court of law; and that “a decree of the court of Chancery may be given in evidence, on the same footing, and under the same limitations, as the verdict of judgment of a court of common law.”*
The exemplifications which we undertook to give of the defects of English law in relation to makeshift evidence, may here end. To what purpose weary the reader with the dull detail of the cases in which casually-written or ex parte preappointed evidence are excluded, with the equally long, and equally dull, list of the cases in which, though exclusion would be just as reasonable (if it were reasonable at all,) admission, and not exclusion, is the rule? To know that the established systems are everywhere radically wrong—wrong in the fundamental principles upon which they rest, and wrong just so far as those principles are consistently applied,—this, to the person who regards the happiness of mankind as worth pursuing, and good laws as essential to happiness, is in a pre-eminent degree important and interesting. But, for one who, by a comprehensive survey of the grand features, has satisfied himself that the system is rotten to the core; for such a person to know that it is somewhat more tolerable in one part than in another part—that principles which are mischievous in all their applications, are a little more or a little less mischievous in one application than in another—that, in this or that portion of the field of law, vicious theories are consistently carried out, and yield their appropriate fruit in equally vicious practice, while in this or that odd corner they are departed from,—would in general be a sort of knowledge as destitute of instruction, as it always is and necessarily must be of amusement.
OF THE AUTHENTICATION OF EVIDENCE.
[* ]Vide supra, p. 124, Note *.—Ed.
[* ]Vide supra, p. 123, Note †.—Ed.
[† ]For a fuller exposure of the arguments founded upon the words necessity and trade, see Book IX. Exclusion; Part III. Deception; Chap. III. sect. 3.
[* ]This is scarcely consistent with practice. It has been held, that proof of the hand-writing of a clerk, and that he has gone abroad, and is not likely to return, is not sufficient to make a memorandum by him admissible in evidence. 1 Esp. N. P. C. 2.—Ed.
[* ]The papers from which the above remarks on the aberrations of English law have been compiled, were written by Mr. Bentham at different times, and left by him in a very incomplete and fragmentitious state. It appears that he had intended to give some account of what is done by English law in regard to all the different kinds of makeshift evidence, but never completed his design. The remainder of this chapter (with the exception of a fragment, which for distinction’s sake has been printed within brackets,) is the result of a partial attempt to fill up the void which had thus been left in the body of the work.—Editor.
[† ]See Chapter II. of this Book, § 3, supra, p. 127.
[‡ ]Phillipps (edit. 1824,) i. 317, et seq.
[∥ ]Ibid. i. 319.
[* ]C. J. De Grey, in the Duchess of Kingston’s case, apud Phillipps, i. 304.
[† ]Vide Chap. II.
[‡ ]Phillipps, i. 309.
[∥ ]See Book IX. Exclusion; Part III. Deception.
[* ]Phillips, i. 312.
[† ]Ibid. i. 330-334.
[‡ ]Here commences the fragment alluded to in p. 170.
[* ]Phillipps, i. 340.