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CHAPTER IV.: EXCLUSION BY RENDERING A PARTICULAR SPECIES OF EVIDENCE CONCLUSIVE. - 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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EXCLUSION BY RENDERING A PARTICULAR SPECIES OF EVIDENCE CONCLUSIVE.
Impropriety of the exclusion.
Admission of counter-evidence is one of those securities, of the necessity of which, much (it may be thought) would not require to be said.
Exclude out of the budget any article of evidence, whether on one side or another: in proportion to the probative force with which such excluded lot would, had it been admitted, have acted upon the mind of the judge, in that same proportion is the aggregate mass of evidence incomplete.
Exclude, on either side, the whole of the mass of evidence that would or might have been delivered on that side, leaving the door open to whatever evidence is ready to be delivered on the other: misdecision in disfavour of the side on which the evidence is excluded, is not, indeed, by so doing, rendered the certain result (since there remains the possibility that the unexcluded evidence may not gain credit;) but, at any rate, the tendency of such arrangement to give birth to misdecision, seems too palpable to be matter of doubt to any one: so palpable, as to produce, as it were, a mechanical and instinctive idea of one of the most revolting modifications of injustice.
Audi alteram partem, says the common adage: before you give judgment, hear whatever there may be to be said on the other side. As a memento, good: for information, for guidance, not sufficient. To be said?—In what way? In the way of evidence? in the way of observation upon evidence? There are few cases in which observation on evidence may not be of some use; there are none at all in which evidence itself is not absolutely necessary.
To exclude evidence indiscriminately on both sides, is turning fortune loose to do the work of justice: to exclude evidence from one side only, leaving the door open to it on the other side, is a sort of arrangement which, to judge of it in the abstract, could have been dictated, one should have thought, by no other principle than that of determination to do injustice.
Under the technical system, however, not only has evidence been excluded in detail—evidence of such and such a particular nature, in consideration of its nature; but evidence has even been excluded in the lump, without any consideration of its nature: the whole mass of evidence: whatever evidence might, had it not been for the exclusion, have been delivered on this or on that side.
If it really be not conducive to the ends of justice to shut the door on either side against evidence—against all evidence in the lump, without knowing what it is—to show, in any instance, that by this or that arrangement in any established system, a door has thus been shut in this way against evidence, is to show that the arrangement in question is repugnant to the ends of justice. Thus to class it, is to condemn it: to condemn it, and on the surest grounds.
In one of two senses given to it, the word conclusive, as applied to evidence, seems in a manner peculiar to English law: the reason will appear presently.
In one sense, it puts no exclusion upon evidence of any sort. Evidence thus spoken of as conclusive, may be said to be spoken of as conditionally conclusive: conclusive primâ facie—conclusive nisi.
In another sense, it puts an exclusion upon evidence—upon all evidence on the other side. Not to speak of real evidence—not to speak of other circumstantial evidence,—it pronounces all witnesses on the other side liars: all witnesses, be they who they may, and in whatsoever number. In this sense, the absurdity of the propositions of which it makes the leading term, the rashness, the inutility, the mischievousness, of all decisions grounded on them, is, when once stated, too evident to be proved. It pronounces some fact or other impossible. Is it then really impossible? What probability, then, is there, that it will be not only asserted by a witness, but also credited by the judge? Is it not impossible? Then why will you pronounce it so?
Evidence spoken of as conclusive in this sense, may be said to be spoken of as absolutely conclusive. Evidence absolutely conclusive is that to which the effect is given of putting an exclusion upon all counter-evidence.
The question concerning conclusive evidence—whether this or that lot of evidence shall be treated as conclusive, regards species of evidence: it regards the propriety of laying down a generic, or (as on this occasion we may term it) a specific rule, pronouncing that the truth of the sort of fact shall be inferred by the judge, as often as any evidence of the sort in question is produced. It regards, I say, the genus of the lot of evidence: for as to the individual lots, no decision is, or ever can be, grounded on any lot or body of evidence, but that lot or body of evidence is treated as conclusive with relation to the individual suit in hand.
But in so far as the lot under consideration is no more than the individual lot, the question whether it shall be conclusive or no, has no place in any book of jurisprudence—in any book in which, from the decisions pronounced in individual cases, the author takes upon himself, in the way of abstraction, to deduce general rules.
1. If the mass of evidence be made conclusive absolutely, observe the consequence. The nature of this will vary, according as the suit is of a penal nature or of a non-penal nature; and in each case, according as the side, in favour of which the evidence is thus made conclusive, is that of the plaintiff, or that of the defendant.
Let the mass of evidence thus rendered conclusive, be composed (suppose) of the concordant testimony of two persons—two witnesses exhibited on the same side.
In the penal branch,—to render the testimony of any two witnesses in this way conclusive absolutely against the defendant—to force the judge to convict a defendant upon the testimony of two witnesses, whether it does or does not produce in his mind a persuasion of the fact of their delinquency—whether the testimony thus exhibited appears to him correct or not, veracious or not,—is as much as to give to any two ruffians a power to ruin any individual whatever, or any number of individuals, at their choice, in point of property, person, reputation, or life, as the case may be.
In the penal branch, again,—to render the testimony of any two witnesses conclusive in this same way in favour of the defendant—to force the judge to acquit him, in consequence of the want of such evidence to convict him (believing him at the same time, as above, to be guilty,)—is as much as to confer on any two hireling perjurers a power to give a virtual pardon—to give, even beforehand, a certainty of impunity to any malefactor at their choice—to any number of malefactors at their choice, whatever be their crimes.
In the non-penal branch,—to render the testimony of any two witnesses conclusive in this same way in favour of the plaintiff—to force the judge, on the ground of such testimony, to confer on him the right he sues for (the judge at the same time not believing him possessed of any good title to such right,)—is as much as to confer on any two, and every two, hireling perjurers, a power of conferring a proprietary right of any kind upon any individual at their choice, or any number of proprietary rights of all kinds, and with reference to all subject-matters, upon any number of individuals at their choice: and thereby to impose upon any individual the obligation correspondent to such right: to impose, therefore, upon any number of individuals, the obligations respectively correspondent to all manner of proprietary rights with reference to all manner of subject-matters.
In the non-penal branch, again,—to render the testimony of any two witnesses conclusive in this way in favour of the defendant—to force the judge, on the ground of such testimony, to refuse to the plaintiff the right he sues for (the judge at the same time believing him possessed of a good title to such right,)—is as much as to give to any and every two hireling perjurers, a power of debarring any individual, or any number of individuals, at their choice, from the acquisition of all such rights, however necessary to their existence, for the acquisition of which the law has made it necessary for them to obtain the decision of a judge: to exempt, accordingly, any individual, any number of individuals, at their choice, from the obligations respectively correspondent to those rights; i. e. by the imposition of which, and not otherwise, those rights would be conferred.
Away with all exaggeration!—begone all false conceptions, on a ground on which so much depends on truth and accuracy! A power is one thing—a licence is another. Of a power, the virtue is, to enable a man to produce the effect in respect of which he is empowered: of a licence, the virtue is, to exempt him from punishment, in the event of his producing such effect. To give to the two confederates in question the power of producing all these pernicious effects, would be the result of any such rules as these respectively contended against: to enable them to produce those same effects with certainty of impunity to themselves, is not among the results of any of those respective rules. For, by the supposition, perjury is necessary, in each case, to the production of the corresponding mischievous effect: and from the punishment (whatever it be) that happens to be attached to perjury, no exemption is given by any of these rules.
Of the sort of licence in question, in addition to the power, what would be the consequence? The utter destruction and subversion of political society in any community in which it should be established: the ruin of all innocent persons; the impunity and triumph of all malefactors: the ruin of all persons having a title, in each case, to the rights sued for; the exaltation of persons having no such title.
2. Where the effect of the rule is not to render the mass of evidence in question conclusive absolutely, but only conclusive nisi, the mischief is not so great; yet still the effect, if any, is mischievous, and it has no sort of advantage, in any shape, to help to balance it. It is only in default of evidence on the other side, that the certainty of prevailing is bestowed upon it. But in the case where this certainty takes place, what is it that truth and justice get by it? Here are two pieces of evidence, each of them susceptible of an infinity of degrees of persuasive force—each of them susceptible of the lowest degree. Both together, the degree of persuasion they would be productive of, in the conception of the judge, is not beyond the second degree in the scale of probative force:* —comes the rule, and forces him to act as if the degree of his persuasion were at least somewhere above the middle of the scale. The evidence appears false to him: and he is obliged to act as if it appeared to him to be true.
One class of cases there is, and that a most extensive and important one, in which it may appear that evidence, circumstantial evidence, of this or that description, is built upon as conclusive, and even absolutely conclusive: and that with perfect propriety and good effect. This is the case of those acts which, in consideration of their connexion with some principal act, obnoxious on its own account, and on that account put upon the list of crimes, are, therefore (though in themselves, and were it not for that connexion, not obnoxious,) also put upon that list: as in the case of those clusters of offences (each composed of a principal offence and an accompaniment of accessory offences) which come respectively under the titles of forgery, coming, smuggling, and the like.
But, in these cases, the truth (as upon a closer inspection will appear) is, that no such conclusion is really formed: or at any rate, that, to warrant the course taken by the legislator, it is not necessary that any such conclusion should have been formed. Of him, by whom an act of the description of the accessory act in question is performed, it has been deemed probable by the legislator, that an act of the nature of the principal act has been, or was to have been, performed, or that he has been, or was to have been, in some way or other, assistant to the enterprise of him by whom such principal act has been committed. But the propriety of the treatment, in the extent thus given to it—in the extent by which it embraces the cluster of accessory acts in question—depends not altogether upon the rectitude of the inference. Whatever be men’s views, in the performance of the accessory acts thus converted into offences, the legislator is warranted in converting each of the acts in question into offences, if so it be, that the prejudice (if any) that results to the agents in question, and others, from their non-performance, is not equal to the advantage gained by the check thus applied to the principal offence.
Hence it is, that, in point of propriety, any conclusion thus formed rests on very different grounds, according as it is formed in the station of the legislator, or in that of the judge. Formed by the legislator, it is not necessary that it should be true in every individual instance: it may not be necessary that it should be true in so much as a majority of individual instances. Formed by the judge,—formed, that is to say, with such effect as to have served for the foundation of a general rule of jurisprudential law,—it is productive of mischief, if there be but a single instance in which it is not true: it is productive of mischief, at any rate, in that one instance. Why? Because the individual in question had no warning to abstain from the act:—like most other rules of jurisprudential law, it falls upon the victim with the weight, and is attended with the barbarity and iniquity, of an ex post facto law.
If the evidence, which, in the cause in hand, it is proposed to consider as conclusive, is evidence that has been exhibited, not in that same cause, but in another cause that has no relation to it,—the impropriety of the regulation is still more enorinous. Of the inference drawn from a lot or mass of evidence in any preceding cause, no use, no mention ought to be made in any succeeding cause. Here, not only is mention made of it, but the judgment then passed upon it is made to command the decision, in such manner as to prevent the subject from being so much as viewed at all in its own proper lights. In the one case, extrancous matter is mixed with the proper matter, the proper matter not being excluded: in the other case, not only is the extraneous matter admitted, but, in consequence of that improper admission, the proper matter is excluded.
The case of conclusive cridence must be distinguished from the case of conclusive decision. The case in which the decision in question is considered as being commanded by the evidence already adduced, must be distinguished from the case where the decision is considered as being commanded, not immediately by any document of the nature of evidence, but by a document of the nature of a decision—a decision already pronounced: pronounced, whether in the same court or in any other court: if in any other court, whether in a court acting under the dominion of the same sovereign, or in a court acting under the dominion of a foreign sovereign.
Such is the distinction which has been rendered requisite by the inaccurate genius of technical nomenclature. For the purpose here in question, decisions, decisions of other courts, are spoken of under the name of evidence.
Supposing the decision of the other court in question to have been grounded on evidence received on both sides; it follows, that, from the admission of such decision as conclusive, in regard to the facts on which it was grounded, no such absurdity, no such mischief, follows, as from the giving to evidence itself, on one side, a conclusive, and thence an exclusive, effect.
On what occasions, and on what grounds, may it be proper for one court to allow (viz. with regard to the question of fact) this authority to the decision of another? A question alike curious and important; which belongs not, however, to the present head, but to that of makeshift evidence.*
There is one case in which, in the absolute sense, the term conclusive may be employed with propriety, and yet the evidence upon which the exclusion is put by such conclusive evidence, cannot with propriety be ranked under the denomination of counter-evidence. This is, where, on the ground of evidence in its own nature insufficient and inconclusive, appearing on one side, a sort of practical conclusion is built in favour of that same side, to the exclusion of all such evidence as might have been adduced on that same side. In the sort of case here in view, no exclusion is put upon any evidence on the other side: no exclusion is put on any evidence characterizable by the appellation of counter-evidence. Why? Because the circumstances in which the practical conclusion in question is drawn are such, that a conclusion of that sort must be made at a time when it is impossible as yet to know whether that side of the cause does or does not afford any counter-evidence.
The case in question is this: for the sake of simplification, take (as being the more common case) the case where it is on the plaintiff’s side that the insufficient evidence is thus conclusive. The plaintiff, using the forms prescribed by the technical system, gives commencement to a cause—say a criminal one. On the defendant’s side, the time being come in which, in the track marked out for defence, something should have been done by him, nothing in fact is done. In the state of things thus described, judgment of conviction is pronounced, or some grievous load of vexation imposed, on the defendant; the plaintiff, although able, neither being required nor admitted to establish the fact of delinquency by any better evidence.
In this case, the evidence (such as it is,) on the ground of which the burthen in question is imposed upon the defendant, belongs to the head of circumstantial evidence. It consists of two distinguishable lots, or evidentiary facts:—first evidentiary fact, the step taken, or progress made, by the plaintiff in his suit: second evidentiary fact, the negation of the step in question (the step made necessary to defence) on the part of the defendant. To these two evidentiary facts, corresponds, in the character of the fact evidenced, the delinquency of the defendant in respect of the offence charged.
This kind of circumstantial evidence never is—in point of reason never can be, of itself sufficient to support any such practical inference. Why? Because, if the defendant be really guilty, it is impossible but that some better, some more apposite and direct evidence, at any rate some ulterior evidence, must be to be had.
But the authors of the technical system have found their convenience in putting it into the power of any man in the character of a plaintiff, to put any other into a state of conviction, or into a state tantamount to conviction, on the ground of this flagrantly insufficient evidence: having their reasons for not requiring, nor so much as admitting, better or ulterior evidence, even when direct evidence of the most completely satisfactory description is to be had.
This abomination, the result of the most barbarous iniquity, or the grossest stupidity, has been adopted by every existing modification of the technical system: and, in every country, it covers a prodigious (though everywhere a variable) extent in the field of judicature.
But, in the exclusion thus put upon evidence, nothing, we see, that can with propriety be spoken of under the appellation of counter-evidence, is comprised. Suppose all that evidence, that direct and satisfactory evidence, which is thus excluded—suppose it all delivered; there could not perhaps (or at least would not,) in that stage of the cause, be delivered any counter-evidence, any evidence on the defendant’s side: on the part of the plaintiff, whether the defendant knows as yet what has been done against him,—what he knows, where he is, or whether he even exists, is not as yet known.
The fact inferred in these cases is, non-existence of evidence on the defendant’s side, and thence non-existence of right.
The inference, considered as being (what it is) a sweeping and all-comprehensive one, is big with injustice.
Everywhere there are two states of things, the existence of which, in the character of the efficient causes of the failure, is at least not less probable than the non-existence of evidence: indigence, want of the means of self-defence in the judicial field; want of notice, viz. want of knowledge of the obligation by which the party is urged to bring those means into action.
Want of notice is the but too natural and looked-for result of the contrivance employed by the genius of chicane, for preventing the means employed, under the notion of conveying notice, from being productive of that effect.*
In regard to indigence,—to estimate the comparative probability, as between this state of things, and the consciousness of the non-existence of evidence, and thence of title,—in the character of causes of failure in respect of the taking on the defendant’s side the steps requisite for the continuance of the cause, say thus:—Of the whole number of inhabitants in the country in question (England,)—as the number of those who are not able respectively to command, in addition to the sum requisite for their subsistence for and during the continuance of the cause (say a twelvemonth,) the least sum sufficient for the carrying it on on that one side (say £30,) is to the remaining number,—so is the probability that the failure is the effect of indigence, to the probability of its being the effect of the non-existence of evidence, and consequently of right, on that same side.†
The mischief being thus brought to view—the nakedness of iniquity, official and professional, being uncovered,—the remedy is almost too obvious to admit mentioning. Render not to the plaintiff in any case the demanded service, till after he has, on his part, produced appropriate evidence, of some sort or other, in support of it. Is it out of the mouth of his antagonist, the defendant, that the evidence, or an essential part of it, must come? Though in this case it is out of his power to produce that evidence, at the worst he may produce (though it he out of his own lips alone) evidence that shall be sufficient to satisfy the conscience of the judge, in such manner as to warrant him in subjecting the defendant to whatever vexation may be necessary for extracting from his lips (or, in case of necessity, from his pen) the evidence alleged to be necessary for the final substantiation of the demand.
Obvious and effectual as is the remedy, the bar opposed to it is no less so. It supposes one party at least to be heard, and heard at the outset of the cause. But that neither party shall be heard (especially at that stage,) is of all established principles the most inviolable: a principle, the violation of which would reduce Westminster Hall to a heap of ruins. It would leave prisons empty: it would lead captivity captive: it would render offices neither worth selling nor worth giving: it would bring the greater number of suits to an untimely end, and leave the remainder not worth the continuance.
Confined to the viles animæ—to the souls too wretched to yield fees—the creatures to whom it would be beneath the dignity of law or equity to do justice,—the experiment was endured, the father as it could not be prevented. Extended to those for whom alone that justice was made that is worth rendering, it would be subversive of the very ends of judicature.
It was observed above, that, in one sense, no exclusion could be said to be put by this arrangement: no exclusion put upon evidence on one side, as where an article of evidence produced on the other is made conclusive.
On one side alone, true it is that by this arrangement no exclusion is put upon evidence. Why? Because the exclusion that is put involves the evidence on both sides; in a word, all evidence. On the defendant’s, because either he has had no notice, or it is out of his power to profit by it: on the plaintiff’s, because, having done the needful, having run the gantelope through the offices, he is excused from giving evidence, lest he should have none to give.
Why should evidence be received? What is there to be got by receiving evidence? If anything, what is scarce worth stooping for. What is there to be got by receiving that which is not evidence? Look to those arcana imperit that have been divulged by the treachery of false brethren: look to the lists of fees.
An article of evidence may with propriety be made conclusive for the purpose of an incidental decision.
A distinction requires to be made in regard to the stage of the cause, the stage to which the evidence in question applies.
The case in which this disguised exclusion is absurd and mischievous, is the case where,—the fact to which the evidence is applied is the principal fact (or among the principal facts) on which the demand or the defence is grounded,—the matter of fact upon which the ultimate decision has to be pronounced,—and the decision to be grounded on that fact is also an ultimate decision, as above.
Very different may be the case, where the decision to be pronounced is no more than an incidental decision; and the conclusion to be drawn, a conclusion by which such incidental decision shall be warranted. In this case, and for the purpose of grounding such incidental decision, frequently indeed does it happen, that this or that article of evidence may be treated as conclusive; this or that fact may, in the quality of an evidentary fact, with relation to this or that other in the character of a principal fact, be treated as conclusive.
Such is the case, wherever, upon the application of one party, a decision is pronounced, a judicial act done as of course, upon an ex parte representation, no opportunity of contesting the truth of it having been given to the other: as where, upon a representation made by a person saying that goods of his have been stolen, and (as, from such and such circumstances, he suspects) by Titius, a warrant is issued for the arrestation and provisional confinement of the supposed thief.
For the purpose of an ultimate decision, pronouncing Titius guilty of the theft, this evidence is not deemed conclusive: for the purpose of the incidental decision, pronouncing the guilt of Titius to a certain degree probable (to such a degree as to warrant his arrestation and confinement, for the purpose of judicial inquiry,) this same evidence is deemed conclusive: and it is even made absolutely conclusive; for, by the nature of the measure taken, all faculty of combating the proposed decision by counter-evidence exhibited antecedently to the delivery of it, is taken away.
To the purpose of an incidental decision of any sort, evidence of any description may be treated on the footing of conclusive, absolutely conclusive, evidence exclusive of all counter-evidence,—where the utmost mischief producible by the exclusion is outweighed by the advantage produced by the decision in relation to the several ends of justice.
Thus, in the case just mentioned, the price paid for the advantage consists in the vexation (and that commonly attended with expense) produced by the restraint thus put upon locomotive liberty: the advantage itself consists in the security afforded for the forthcomingness, and thence for the justiciability, of the supposed thief. Give him the opportunity of contesting the necessity, and thence the propriety, of his confinement (the provisional and temporary confinement,)—if he is innocent, he will come in and contest it; but if, being guilty, he apprehends the proof will be strong enough for his conviction, he will make use of the summons as a warning not to comply with the requisitions of justice, but to elude them, and make his escape.
To a certain degree, every step on one side, which, on pain of greater inconvenience, calls for any step to be taken on the other side, is productive of vexation: for in judicial procedure every step that is taken is attended with vexation. In every instance, therefore, the evidence to which this effect is given, is, to a certain degree, productive of that sort of ill consequence which is attached to the giving it the effect of conclusive, and thereby of exclusive, evidence. If, instead of a warrant for arrestation directed to a minister of justice, a simple summons addressed to the suspected thief, and requiring his attendance, had been employed, the vexation would have been lessened indeed, but it would not have been done away: and, so far as this minor vexation is concerned, the giving this effect to the evidence would have been productive of that sort of ill effect which is produced by the employing any lot of evidence in the character of conclusive, and thence of exclusive, evidence. But be the vexation what it may,—if it be productive of preponderant benefit, and if, at the same time, the quantity of it be the least that it can be made, consistently with the production of that benefit,—it will always be warrantable.
By this observation we are led to the practical caution, never to give to any lot of evidence the quality and effect of conclusive evidence, till, in respect of persuasive force, it has been rendered as strong as it can be rendered without the production of preponderant vexation, or other inconvenience, viz. to the person from whom the evidence is required: which is as much as to say, not to impose upon either party (in particular upon the defendant) the necessity of taking any step, or ulterior step, in the cause, without the other party’s (the plaintiff’s) having antecedently been made to produce whatever evidence he is able to afford without preponderant inconvenience.
For the purpose of commanding an interlocutory decision, in what cases shall any (and what) lot of evidence be regarded as conclusive? Answer: In such cases in which the certain mischief,—in the shape of collateral inconvenience by vexation, expense, and delay, attached to the receipt of counter-evidence with the consequent discussions,—would be greater than the contingent mischief, in the chance of direct injustice, incurred by the chance of untrustworthiness (understand proveable untrustworthiness) produced by the absence of the light that might have been thrown upon the subject by the excluded counter-evidence.
Such is the general description of the cases in which the exclusion of counter-evidence, in opposition to evidence for grounding an interlocutory decision, may be proper. To the propriety of the principle, no objection seems likely to be made. How, in each instance, to determine whether this or that particular case comes within this general description, is a problem, the solution of which threatens to be attended with considerable difficulties.
But though it is not possible to lay down any general rule, indicative of the cases in which a certain portion of evidence may, for the purpose of an interlocutory decision, be treated as conclusive, and counter-evidence excluded,—it is not difficult to point out two cases at least, in which it cannot, without impropriety, be so treated: viz. 1. If the interlocutory decision is liable to be productive of irreparable damage; 2. If the decision, apparently on an interlocutory point, have the effect of a decision on the main point.
Aberrations of Roman and English law in this respect.
In the Roman law I do not observe any traces of evidence regarded as conclusive in the improper sense.
To a hasty glance, the suppletory oath and the expurgatory oath wear somewhat of the appearance of it. Examined more closely, they seem not, either of them, to be productive of any such effect. The suppletory oath is admitted in default of other sufficient evidence on that side: and does not command the decision—does not put an exclusion upon any evidence on the opposite side. The expurgatory oath (on the defendant’s side) is not called for or admitted, till after the plaintiff has had full liberty to adduce whatever admissible evidence he can obtain on his side.
In all these cases, the testimony in question is admitted in default of more satisfactory evidence, and is not understood to put an exclusion upon any other evidence.
In all these cases the arrangement is abundantly improper. But the cause of the impropriety has already been indicated in another place: it consists in the want of scrutiny: it belongs not to the present head.
In English jurisprudence there is one remarkable case, in which the effect of conclusiveness has been given to a mass of evidence: this is the case of wager of law.* The conclusive operation is confined to the non-penal branch of the law: it operates on the side of the defendant, and of the defendant only. On the other hand, the conclusiveness of it is absolute: and after all these reductions, the effect of it in practice is as pernicious, as it is absurd in principle: and from the degree of mischief of which it has been productive on this narrow ground, a sort of anticipation may be formed (how inadequate soever) of the mischief of which it would be productive, were the ground it covered more extensive.
In former days, when the practice called wager of law, that of a man’s waging his law, was in use, the manner of it was this:† —The demand on the part of the plaintiff having been exhibited in the accustomed form, the defendant, if he thought proper, was at liberty to exhibit himself in open court, to go through the ceremony of an oath, and, under favour of that sanction, to deny the justice of the claim, in terms altogether general, prescribed by a formulary of the same tenor in all cases. No details called for or permitted; no other witnesses called for or permitted on that side; no faculty of cross-examination allowed to the adverse party, the plaintiff. A certain number of fellow-swearers were, indeed, not only admitted, but called for on his part. Swearers, but to what point? Not to any particular fact belonging to the case, but merely to the general and irrelevant fact, the opinion (a favourable opinion) respectively entertained by them in regard to the veracity of the party by whom they were thus produced. To whatsoever evidence of the direct kind the cause might happen to afford,—circumstantial evidence, and that of the most vague and inconclusive kind, evidence of character, was substituted.
So much for the absurdity: now comes the mischief.
Two sorts of claims were originally infected by this debilitating plague: 1. The sort of claim made by what is called an action of debt, a demand of a sum of money, a demand of the non-penal kind, by which the plaintiff, in making his application to the judge, called upon him to impose upon the defendant the obligation of conferring on the plaintiff the property of a sum of money liquidated in amount, payable of course in coin, of which the individual pieces were determinable by the defendant’s, the intended collector’s, choice; 2. The sort of claim called an action of detinue. In debt, the thing claimed was a mass of money: liquidated in value,—not liquidated—but (as in such case is necessary) left to the option of the debtor—in respect of the individual pieces of which the sum of money was to be composed. In detinue, the thing claimed was an individual article, of the moveable class: a horse, a piece of furniture, a picture, a trinket, and so forth.
By a conceit, of the number of those which, in the manufactory of legal decisions, occupy the place of reason, the effect of the wager of law on actions of debt, has, in one way or other, been got rid of. In some cases it was put aside; and in other cases, to which the pretence for putting it aside did not apply, another sort of action, an action with another name, was fabricated—an action to which, at the same time, and in this view, the wager of law was pronounced inapplicable. I mean the action of indebitatus assumpsit; which is the same thing as the action of debt, in other words. A promise, indeed, to comply with the obligation, is alleged: but the promise is presumed; that is, where there is none, feigned: averred by an assertion wilfully false.
The consequence is, that the demand of a sum of money is tolerably well cleared of this ground of defence by perjury and injustice. Relief is given, justice is administered, in a manner little, if at all, different from that in which it would be administered if the conclusive species of evidence in question, the waging of a man’s law, were not applied to this case. The action, called an action of debt, is thus far spoilt; but in so far as it is spoilt, another action is given which answers the same purpose.
Far from being alike innocent is this remnant of ancient barbarism, in the case where the subject of the demand is a specific material object. In this case, the remedy originally provided is the species of action called the action of detinue. By the same baleful influence by which the action of debt is spoilt, as above, this action is spoilt also. In the case of the action of debt, for the part thus spoilt, a succedaneum (as we see) has been provided: in the case of the action of detinue, no such succedaneum has been provided; and the damage has continued for so many centuries unrepaired. Upon the principle of analogy, nothing was more obvious, nothing would have been more easy, than the repair. For the purpose of compelling the delivery of money where due,—to the fact of the obligation, you added, in the way of fiction, another fact, a promise to fulfil it: why not for the purpose of compelling the delivery or re-delivery of a specific article? Yes: analogy is the grand source and instrument of invention, in this as well as every other line: but to apply it usefully,—to apply it steadily, comprehensively, and consistently, belongs to none but an inventive mind.
The action of detinue is spoilt: another action, called an action of trover, is given in the room. But by this new device, unfortunately, the purpose is not answered: a blunder is made, and, instead of the specific thing which is a man’s due, damages are given: that is, a sum of money, according to the value, which, on the ground of the imperfect data that are commonly exhibited to them, the judges of fact think fit to put upon it: the remedy, instead of that which belongs to the action of detinue, is the remedy that belongs to the action of debt.
Whence came the blunder? Not from a regard—a more scrupulous than consistent regard, to truth. A falsehood is called in—a proposition is assumed, and a proposition more uniformly false in this case, than in the case of the indebitatus assumpsit. The story is, that the article claimed by the plaintiff has been found by the defendant: found by him, and by him converted to his own use. Thereupon comes the action, calling upon the judge to cause to be delivered to the plaintiff not the thing that belongs to him, but a sum of money in lieu of it. The defendant takes note of the price thus put upon it: if it is more than he chooses to give for it, he restores it: if less (that is, if it be any advantage to him to keep it,) he keeps it. The plaintiff pockets the money and the injury: the defendant triumphs in improbity, under the protection of the law. There are things, the value of which to a feeling heart is beyond all price: these are precisely the things which the law abandons to the wrong-doer, and to all wrong-doers.
There is a remedy in kind, indeed, to be had in some cases, in that sort of a court which is called a court of equity. But the optics of a court of equity are too high-seated to spy little things: and a mass of value equal to the expense of more than a year’s subsistence to an individual of the most numerous class, is set down by every court of equity to the account of little things.* So much for the remedy itself, and the cases in which it is to be had at any price: and as to the price that is to be paid for it (that is, for the chance of it) in time and money,—where law reckons by months, equity reckons by years: where law reckons by crowns, equity reckons by pounds.
So delectable is this institution (the wager of law) in the eyes of Lord Coke, that he seems to pride himself in his country’s exclusive possession of it.† Its merit consists in what? In this, that it does (he says) no harm. Why? Because, for the same demand, though there be one sort of action (an action of debt) which is clogged with this appendage, there is another (an action on the case) which stands clear of it. Wherever it has no effect at all, there, and there only, it has no bad effect. Unhappily, the reason given for the supposed harmlessness of an institution confessedly useless, is not true in fact. For, notwithstanding the silence of this arch-lawyer on the subject, another sort of demand there is, as we have seen, to which that clog does apply; and which being spoilt by it, and having no succedaneum, leaves the subject without a remedy.
In regard to this institution, of which the highest supposed merit is that of doing no harm, while its real character is that of operating as a denial of justice,—the matter of triumph to Lord Coke, that no other country has the like, Blackstone‡ shows to be very far from well grounded.
An institution that is peculiar to England, or nearly so, is cross-examination in non-penal causes. By neither of these professed panegyrists has this truly honourable peculiarity been noticed: by neither of them has it been observed, that it is by the exclusion this unnatural institution puts upon cross-examination, that the poisonous quality of it operates.
To have been consistent (if consistency had been a quality capable of adhering to English law, especially at the rude period here in question,) the privilege should have been extended, not to the defendant only, but to the plaintiff; and then the effects of the institution, as applied to the two sides of the cause, being equal and contrary, would have destroyed one another. To the plaintiff (I say) as well as to the defendant: or, if to one alone, rather to the former than to the latter. Why? Because, if for a man to swear falsely to save himself from a loss, is wicked, and in proportion to its wickedness improbable:—to swear falsely, for no more excusable purpose than the obtaining an undue profit for himself, at the expense of subjecting another man to an undue loss, is still more wicked, and in that respect still more improbable.
This chapter having been left unfinished by the Author, what follows has been added to it by the Editor. A few paragraphs, which for distinction have been put in inverted commas, consist of fragments, written at different times by Mr. Bentham: for the remainder the Editor is alone responsible.
[This is not the only sort of case in which the sworn, but uncross-examined and self-serving testimony of a party to the suit, is received as conclusive, that is, to the exclusion of counter-evidence. “The practice in chancery,” we are informed by Phillipps,* “invariably is, that a party is entitled only to extracts of letters, if the other party will swear that the passages extracted are the only parts relating to the subject-matter.”
There is another rule, by which a man’s own testimony is rendered conclusive evidence in his favour, and that too on such a subject as that of his own character. The witness indeed in this case is not a party in the suit; but for anything that appears, he may be the vilest of malefactors; and he is, at any rate, under the influence of an interest, which is one of the strongest of all interests in the bulk of mankind, while even in the vilest it cannot be a weak one. A witness, as we have seen,† is not compellable to answer any question, the answer to which, it true, might tend to degrade his character: if, however, he chooses to answer, the party who asks the question is bound by his answer, and is not allowed to falsify it by counter-evidence.‡
The above seem to be the only instances worth mentioning, in which an article of orally delivered testimonial evidence has in English law been made conclusive. The instances in which similar effect has been given to an article of circumstantial evidence are innumerable; and many of them have been already brought to view.
1. As often as a decision has been given against either of the parties in a suit, on no other ground than that of his having failed, at a particular stage of the suit, to perform any operation which has been rendered necessary at that stage by technical rules, to the obtainment of justice; so often has the non-performance of that operation been taken as evidence, and conclusive evidence, of what is called in the language of lawyers, want of merits, that is, of the badness of his cause.
“Of the justice of the demand, whatsoever it be that happens to be made upon the defendant, provided the suit does not happen to be called a criminal one, non-resistance on his part is regarded and acted upon as sufficient evidence; and to the plaintiff possession is given of the object of his demand, just as if the justness of it had been proved. Even a lawyer will not pretend that on any ground of reason the inference is a conclusive one. Pecuniary inability, especially under the load of factitious expense imposed everywhere by the technical system, is another cause equally adequate to the production of the effect. In every part of the empire of the technical system, and more particularly in England, this inability will have place in the case of a vast majority of the body of the people.
“If a presumption thus slight were not received in proof of the justice of the plaintiff’s claim, and in the character of conclusive evidence—if such direct proof of it as were to be had, were in every instance to be required,—a number of malâ fide suits, with the produce of which the coffers of the man of law are at present swelled, would have no existence.
“Thus it is, that under the technical system, every court calling itself a court of justice is in effect an open shop, in which, for the benefit of the shopkeeper and his associates, licences are sold at a fixed, or at least at a limited, price,—empowering the purchaser to oppress and ruin at his choice any and every individual, obnoxious to him or not, on whom indigence or terror impose the inability of opposing effectual resistance.
“The real condition in which the great majority of the people, in the capacity of suitors, have been placed by the factitious expenses manufactured by the man of law, is an object too reproachful to him to be suffered to remain undisguised. In this, as in every other part of the system, extortion and oppression find in mendacity an ever-ready instrument. The real condition in which the suitor has been involved, the misfortune of defencelessness through indigence, is put out of sight: a crime is imputed to him in its stead: and for that crime, not only without proof, but under the universally notorious consciousness of his innocence, he is punished. Contempt is the word constantly employed to designate this imaginary crime. The real, the universally notorious, causes of his inaction, are fear and impotence. But a man cannot be punished avowedly for fear: he cannot be punished for impotence: mankind would not submit themselves to tyranny so completely without a mask. Adding calumny to mendacity, they pretend to regard his inaction as originating in contempt; and it is on this mendacious accusation of their own forging, that they ground the ruin they inflict on him under the name of punishment.”
In equity, the defendant, who, from his own poverty or ignorance, or the carelessness of his lawyer, is so unfortunate as not to put in an answer to the plaintiff’s bill, stands a great chance (if a poor man) of being a prisoner for life. He is committed to gaol for the contempt: and as he is not released without payment of fees,—unless he has money to pay these fees, or can find some one else who will pay them for him, he must remain there all his life. Instances of this sort have not unfrequently, through the medium of the newspapers, been presented to the public eye.
2. As often as a contract, or any other legally operative instrument, is pronounced null and void, on account of the non-observance of any formality,—so often, the sort of exclusion of which we are here treating, has place. A man claims a landed estate, under the will of the last proprietor. The will is produced in court: it is found to have the signatures of two witnesses only, instead of three;* or one of the three is proved to have put his name to the will in the absence of the testator: the will is rejected, and the party loses his estate. The rejection of the will may, perhaps, be considered as a penalty, for non-compliance with that injunction of the law which requires that certain formalities should be observed. Considered in this point of view, it has been shown in a previous Book† to be unnecessary and objectionable. But it may also be regarded as grounded on the presumption that the will was spurious, or unfairly obtained. Here, then, is this one circumstance, viz. non-observance of legally prescribed formalities, received as conclusive evidence of spuriousness or unfairness. The fallacy of this supposition has also been made sufficiently manifest in the Book already referred to. This article of circumstantial evidence, which is conclusive in law, is so far from being conclusive in reason, that it scarcely amounts even to the slightest presumption, until two things be ascertained: first, that the party knew that these formalities were prescribed; and secondly, that compliance with them was in his power. That spurious or unfair instruments have not frequently been prevented by the peremptory requisition of these formalities, is more than I would undertake to say: but an assertion which one may venture upon without much danger of mistake, is, that there is scarcely an instance of any instrument’s having been actually set aside for the want of them, in which there was not a considerable, if not a preponderant probability of its being genuine.
3. Almost all estoppels are exclusions of the sort now under consideration. You are estopped, say the lawyers, from proving so and so: the meaning of which is, that they will not permit you to prove it. For this they have sometimes one pretext, sometimes another: something which you yourself have said or done; or something which has been said or done by somebody else.
There is a great variety of instances in which they tell you that you are estopped by a previous decision, either of the same court, or of some other court of justice: these have been already noticed under the head of adscititious evidence.‡ At other times you are estopped by what they term an admission. You are said to make an admission, if you say or do anything, or if any other person says or does anything for you, which a judge construes as an acknowledgment on your part, that a certain event has happened; that is, anything from which he chooses to infer its happening: after which, though everybody perhaps who knows anything about the matter, knows that it has not happened, and would say so if asked, the judge, to save the trouble of asking, chooses to act exactly as if it had.
Admissions are of two kinds—express or presumed; and the former are either admissions upon record, or admissions not upon record. It is a rule with lawyers, that no evidence can be received to dispute admissions upon record,* that is, admissions in the pleadings. If this rule went no farther than to confine the evidence to such points as are actually in dispute between the parties, it would be a good rule. In a law-book, a man may reckon himself fortunate if he hits upon a rule which has a reason: if he expect, that where the reason stops, the rule will stop too, it is very rarely that he will not be disappointed. One example will serve as well as a thousand. When a man, against whom an action is brought for a sum of money, denies that the plaintiff is entitled to the whole sum which he claims, but admits that he has a just claim upon him for a smaller sum,—the practice is, for the defendant to pay into court the amount of the sum which he acknowledges to be due, that it may remain in deposit until the cause is decided. This payment, lawyers choose to call an “acknowledgment upon record;” and now mark the consequence: “the party cannot recover it back, although he has paid it wrongfully, or by mistake.”†
As for extrajudicial admissions, it is not always that they are even receivable: when they are, they are generally taken for conclusive: for it may be observed, in regard to this part of the law of evidence, as in regard to so many other parts of it, that neither the lawyers by whom it was made, nor the lawyers by whom it has been expounded, ever seem to know that there is any middle course between taking an article of evidence for conclusive, and rejecting it altogether. Accordingly, in reading the dicta of judges, or the compilations of institutional writers from those dicta, one is continually at a loss to know what they mean. In speaking of this or that evidentiary circumstance, what they tell you concerning it is, that it is evidence: now and then superadding, as it were for the sake of variety, the epithet good to the general appellative evidence. Would you know whether they mean that it is conclusive, or only that it is admissible? Observe their actions; see whether they send it to a jury: for anything that you can collect from their words, they are as likely to mean the one as the other.
The following will serve as an example, as well of the ambiguity of which I have been speaking, as of the sort of logic which passes for irrefragable, under the dominion of technical rules. When a party interested in the cause, makes an admission against his interest,—if he has not made it by mistake, it is nearly the best evidence against him that you can have: ergo, it ought to be taken for conclusive against him, when he has made it by mistake; ergo, the admission of a person who is merely a nominal plaintiff, and who is not interested in the cause, ought to be conclusive against the person who is. So, at least, it was decided in the case of Bauerman v. Radenius,* in which the admission of the plaintiffs on the record, though not the parties really interested, was received as conclusive, and the plaintiffs were nonsuited. I say, received as conclusive; because, when a plaintiff is nonsuited,—that is to say, when his claim is dismissed by the judge without going to a jury,—it is because, if he had gone to a jury, the jury must have found a verdict against him; which would have been a bar to any future prosecution of the same claim: whereas a nonsuit leaves it still in his power to bring a fresh action, after remedying the defect which would have compelled the jury to find against him. The Court of King’s Bench afterwards affirmed, that is, confirmed, the nonsuit: on which occasion Mr. Justice Lawrence said, “The present plaintiffs either have or have not an interest: but it must be considered that they have an interest, in order to support the action; and if they have, an admission made by them that they have no cause of action, is admissible evidence.” This judge here, with much naïveté, displays the manner in which, under the influence of technical rules, what is known to be false is taken for true, in order that what is evidently unjust may be done. He knew as well as the nominal plaintiffs knew, that they had not an interest in the cause: but what of that? The law knew that they had.
There is an overflow of legal learning, on the question, what effect to your prejudice shall be given to the admission of your agent: and here again recurs the usual alternative: it is either not received, or it is received as conclusive: it either excludes all other evidence, or it is itself excluded. Thus, in one case,† “a letter from the defendant’s clerk, informing the plaintiff that a policy had been effected, was held to be good evidence [meaning here conclusive evidence] of the existence of the policy; and the defendant was not allowed to prove that the letter had been written by mistake, and that the policy had not been made:” while in another case,‡ “where the fact sought to be established, was, that a bond had been executed by the defendant to the plaintiff, which the defendant had got possession of, the Master of the Rolls refused to admit, as evidence of this fact, the declaration of the defendant’s agent, who had been employed to keep the bond for the plaintiff’s benefit, and who, on its being demanded by the plaintiff, informed him that it had been delivered to the defendant.” It might seem to a cursory reader, on comparing these two decisions, either that the predilection of judges for bad evidence was such, that, rejecting an admission in other cases, they were willing to receive it upon the single condition of its being made by mistake; or that, in laying down rules of evidence, blind caprice was the only guide. In this apparent inconsistency, however, there is a principle, though no one would have thought it; it is this: that the admissions of an agent are not to be received, unless “made by him, either at the time of his making an agreement about which he is employed, or in acting within the scope of his authority.” It is not, that what he says on these occasions is more likely to be true than what he says on other occasions: it is, that “it is impossible to say a man is precluded from questioning or contradicting anything that any person may have asserted, as to his conduct or agreement, merely because that person has been an agent:” and as it would be unjust to preclude him from contradicting it, it is not permitted so much as to be heard.
Besides these express admissions, there is an extensive assortment of presumed ones; when a man “precludes himself from disputing a fact, by the tenor of his conduct and demeanour:”* the meaning of which is, that the court will presume an admission from anything that a man does, which they think he would not have done if the fact had not been true. This is the principle: but as to the extent of its application, there is no criterion of it except the Index to the Reports. It has usually been applied only to cases in which the presumption afforded by the act is really strong, and might reasonably be held conclusive in the absence of counter-evidence, though certainly not to the exclusion of counter-evidence, since there is not so much as one of the cases in which the presumption is not liable to fail. Without touching upon the grounds of failure which are peculiar to this or that case, there is one obvious ground which is common to them all. A man’s actions can never prove the truth of a fact, except in so far as his belief of it is evidence of its truth: and to hinder a man from proving that a thing did not happen, because at some former period he believed that it did, even if you were sure that he believed it (which in general you are not, it being only inferred from his actions,) would be unjust in any case, but is more especially absurd, when the fact in question is one of those complicated, and frequently recondite, facts, which are constitutive of title.
Take a few instances.
“By accounting with a person as farmer of the tolls of a turnpike, a party is estopped from disputing the validity of his title, when sued by account stated for those tolls.
“By paying tithes to the plaintiff on former occasions, a defendant admits the right of the plaintiff to an action for not setting out tithes.
“Where a party rented glebe lands of a rector, and had paid him rent, he was not permitted, in an action for use and occupation, to dispute his lessor’s title, by proving that his presentation was simoniacal.
“In actions of use and occupation, when the tenant has occupied by the permission of the plaintiff, he cannot dispute the plaintiff’s title, although he may show that it is at an end.
“In an action of ejectment, by a landlord against his tenant, the tenant cannot question the title of his landlord, although he is at liberty to show that it has expired.”†
In all these instances, the presumption upon which, if upon anything, the decision must have been grounded, is, that if the plaintiff had not really had a good title, the defendant would not have paid rent, tithe, &c. to him, as the case may be. To justify the rendering this presumption conclusive, it would be necessary, among a crowd of other suppositions, to suppose that a tenant never paid rent to the de facto landlord, without first demanding his title-deeds, and going over them with a lawyer, for the purpose of assuring himself that they did not contain any flaw.
4. A whole host of exclusions lurk in the admired rule, that the best evidence which the nature of the case admits of, is to be required: a rule which seems to please everybody, and with the more reason, as, having no distinct meaning of its own, it is capable of receiving any which any one thinks proper to attach to it. There is a charm, too, in the sound of the words best evidence, which no lawyer, and scarcely any non-lawyer, is able to resist. The following seems to be nearly the train of thought (in so far as anything like thought can be said to have place) which passes through the mind of the submissive and admiring student, when he hears this maxim delivered ex cathedrâ, as something which, like Holy Writ, is to be believed and adored. Good evidence, it naturally occurs to him, is a good thing: à fortiori, therefore (it is unnecessary to say,) the best evidence cannot but be a good thing what, however, can be more proper, than always to require, and insist upon having, the best of everything? How admirable, therefore, the rule which requires the best evidence (whether it is to be had or no,) and how admirable the system of law, which is in a great measure made up of such rules!
As a preliminary to praising this rule, a desirable thing would be, to understand it: for this, however, you have no chance but by looking at the practice: the attempt to find a meaning for the words would be lost labour. The meaning attached to it by lawyers has been different, according to the different purposes which they have had to serve by it. One use which they have made of it, is, to serve as a reason for excluding an inferior and less trustworthy sort of evidence, when a more trustworthy sort, from the same source, is to be had: as, for example, a transcript, when the original is in existence and forthcoming. Applied to this purpose, the rule, if it were not so vague, would be justly entitled to the appellation of a good rule: the purpose, at any rare (with the limitations which have been seen in the Book on Makeshift Evidence,) must be allowed to be a good purpose. Another use which has been made by lawyers, at times, of this rule, is, to enable a judge, at no greater expense than that of calling a particular sort of evidence the best evidence, to treat it as conclusive in favour of the party who produces it; or the non-production of it as conclusive against the party who, it is supposed, ought to have produced it; in both cases putting an exclusion upon all other evidence: and it is in this application of the rule, that it presents a demand for consideration in this place.
“Take a sample of their best evidence,—of that best evidence which, by such its bestness, puts an exclusion upon all other evidence.
“Speculative Position or Antecedent;—Written evidence is better than parol evidence. Practical Inference or Conclusion;—Therefore, in case of a contract, when there exists written evidence of it, with certain formalities for its accompaniments, oral evidence is, or is not, to be admitted, in relation to the purport of such contract. Is, or is not; whichever is most agreeable and convement to the judge. Such is the plain and true account of the matter: for distinctions are spun out of distinctions; and, the light of reason, by which they would be all consumed, being effectually shut out, on and on the thread might continue to be spun without end.
“Observe the inconsistency.
“In English law, circumstantial evidence of the weakest kind, comparison of hands, by persons acquainted, or not acquainted, with the hand of the person in question,—or even the bare tenor of the instrument, i. e. the circumstance of its purporting upon the face of it to have been executed (i. e. recognised) by the person or persons therein mentioned,—this circumstance, if coupled with the evidentiary circumstance ex custodiâ, is (if the assumed date of the instrument be as much as thirty years anterior to the day of production) held sufficient, and, in default of counter-evidence, conclusive.
“A dozen or a score of alleged percipient witnesses, all ready to concur in deposing that, to the provisions in the instrument mentioned, this or that other had been agreed to be added or substituted,—shall they be received, and heard to say as much? Oh no; that must not be; it is against our rule about best evidence.”
The general rule on this subject is, that oral evidence is not admissible “to contradict, or vary, or add to, the terms of a written agreement.”* Cut down as this rule is, by almost innumerable exceptions, there is still enough of it left to do much mischief. The exceptions, if their practical effect be looked to, are reasonable, as narrowing pro tanto the extent of a bad rule: in principle, however, there is scarce one of them which is tenable, unless it be first granted that the rule is absurd. It would be difficult, for example, to discover how, in respect of the propriety of admitting oral evidence to show the abandonment of a written agreement, it should make any difference whether the agreement was or was not under seal; or why, in equity, on a bill for the specific performance of a written agreement, evidence to prove that, by reason of accident or mistake, the written instrument does not correctly express the agreement, should, if tendered by the defendant, be in certain cases admitted; if tendered by the plaintiff, refused. The origin of the exceptions to this rule, as well as to so many other technical rules, is visible enough. They were established by the same sort of authority which established the rules, viz. that of judges deciding pro hâc vice, under the guidance of no principle, but in accordance with the interest or whim of the moment, or frequently with the laudable view of doing justice, not withstanding technical rules. A judge sees plainly, that, in this or that particular case, if he adhere to the rule, he will do injustice: and without daring to set it aside, or even allowing himself to suppose that a rule which had descended from wise ancestors could be other than a good one, he has honesty enough to wish to do justice to the cause in hand, and accordingly cuts into the rule with a new exception for every new instance which presents itself to him of its mischievous operation, taking care never to carry the exception one jot farther than is strictly necessary for his immediate purpose: another judge follows, and takes another nibble at the rule, always upon the same diminutive scale; and so on. Hence it comes, that, at length, after the lapse of a few centuries, the body of the law, considered as a whole, has become a little more just, and a great deal more unintelligible: while the law books have degenerated from the primitive simplicity of the old text-books, where everything was comprehended under a few simple principles (in which, whatever trespasses you might find against justice or common sense, you will find none against consistency,—and which would be perfect, if conduciveness to human happiness were a quality that could without inconvenience be dispensed with in law;) and have swelled into an incoherent mass of mutually conflicting decisions, none of them covering more than a minute spot in the field of law, and which the most practised memory would vainly strive to retain, or the most consummate logic to reduce to a common principle.
Oral evidence, it seems, is receivable to explain, in many cases in which it would not be receivable to vary, the terms of an agreement. The general rule is, that, in case of a latent ambiguity,—that is to say, an ambiguity which does not appear on the face of the instrument, but is raised by extrinsic evidence,—extrinsic evidence will be received to explain it: thus, if a testator bequeaths to John Stiles his estate of Blackacre, and it appears that he has two estates known by that name, oral evidence will be received to show which of the two he meant. Provided always, that there be no possibility of giving effect to the instrument in terminis, without the aid of other evidence,* for if it have a definite meaning, though a different one from that of the testator, it does not signify. When they cannot by any means contrive to give execution to the ipsissima verba of the will, then, it seems, they will condescend to inquire what the testator intended.
Not so when the ambiguity is patent, that is, apparent on the face of the instrument. In this case, the door is inexorably shut upon all extrinsic evidence; and if the intention of the party cannot be inferred from the context, “the clause will be void, on account of its uncertainty.” You are unskilled in composition: after making mention in your will of two persons, your brother and your younger son, you bequeath to him an estate: in this case it may possibly admit of dispute, to which of the two you meant to bequeath it; what, however, can admit of no dispute, is, that you meant to bequeath it to one or other of them: as, therefore, it is doubtful whether you intended that A should have it, or B, the judge will not give it to either of them, but gives it to C, the heir-at-law, whom it is certain you intended not to have it. Or, if he gives it to either of the two persons who, and who alone, can possibly have been meant, he gives it upon the slightest imaginable presumption from the context. There were twenty persons standing by when you executed the will, all of whom knew perfectly well, from your declarations at the time, which of the two parties in question you meant, but none of whom he will suffer to be heard. And this is what lawyers call requiring the best evidence.
For this rule two reasons have been given: one a technical, that is, avowedly an irrational one; the other, one which pretends to be rational. The technical reason is the production of Lord Bacon: it is this: “the law will not couple and mingle matter of specialty, which is of the higher account, with matter of averment, which is of inferior account in law.” For those to whose conceptions the incongruity of so irregular a mixture might fail to present itself in colours sufficiently glaring, a subsequent lord chancellor brought forth the following less recondite reason: that the admission of oral evidence in explanation of patent ambiguities, “would tend to put it in the power of witnesses to make wills for testators:” an objection which would be very strong against any one mode of proof, if it did not unhappily apply to every other.
All hearing of evidence lets in some danger of falsehood. What, however, was probably meant, is, that the admissibility of oral evidence to explain a will, would frustrate the intention of the law in requiring preappointed evidence, a better sort of evidence than oral, and less likely to be false. If this be the meaning, it is enunciated far too generally. It is true that preappointed evidence, consisidered as a genus, is better than oral. But it is not true that every particular article of the former is better than the best conceivable article of the latter. It is not true that the signature of three witnesses is better, cæteris paribus, than the oral depositions of twenty. Yet this rule excludes the latter evidence, on the plea of its inferiority to the former.†
Another consequence of the technical maxim, that written evidence is better than parol (a maxim which, like almost all other general maxims of technical law, is not true in more than half the cases which it extends to,) is the exclusion, in a great number of cases, of oral evidence to prove that there exists a written document evidentiary of a particular fact. The judges, on the occasion of a reference made to them in the course of the late Queen’s trial, declared that “the contents of every written paper are, according to the ordinary and well-established rules of evidence, to be proved by the paper itself, and by that alone, if the paper be in existence.”* Good: provided always it be a necessary consequence, that a paper is forthcoming, because it is in existence. Upon the strength of this rule, the judges decided, that the supposed writer of a letter could not be questioned concerning the contents of the letter, unless the letter itself were first produced, and the witness asked whether he wrote it. Thus, the only evidence, perhaps, which you have got, and that too of so good a kind as the testimony of a writer concerning what he himself has written, is excluded, because another sort of evidence is not produced, which would be better if you could get it, but which, in all probability, you cannot get. The superior evidence, though not forthcoming to any practical purpose, cannot be shown not to exist; and it is therefore said to be forthcoming, to the purpose of excluding all inferior evidence.
A volume might be filled with specimens of the injustice and absurdity which are the fruit of the rule requiring the best evidence. Take this example among others:—A written instrument, with certain formalities, being the best evidence; if, in the written instrument, any one of these formalities be omitted, neither the agreement, nor any other evidence of the transaction, will be received. Thus, “a written instrument which requires a stamp, cannot be admitted in evidence, unless it be duly stamped; and no parole evidence will be received of its contents. If, therefore, the instrument produced is the only legal proof of the transaction, and that cannot be admitted for want of a proper stamp, the transaction cannot be proved at all; as, in an action for use and occupation, if it appear that the defendant held under a written agreement, which for want of a stamp cannot be received, the plaintiff will not be allowed to go into general evidence; for the agreement is the best evidence of the nature of the occupation.”†
An agreement on unstamped paper not being itself receivable, it follows naturally enough, that if it be lost, parol evidence will not be received of its contents; nor even if it be wrongfully destroyed by the other party: notwithstanding another technical rule, that no one is allowed to take advantage of his own wrong. But you can never guess, from the terms of a rule, to what cases it will be applied.
Take the following still more barefaced piece of absurdity, as a final specimen of the operation of this vaunted rule:—
“The acts of state of a foreign government can only be proved by copies of such acts, properly authenticated. Thus, in the case of Richardson v. Anderson, where the counsel on the part of the defendant proposed to give in evidence a book purporting to be a collection of treaties concluded by America, and to be published by the authority of the American government, and it was proposed, further, to prove, by the American minister resident at this court, that the book produced was the rule of his conduct; this evidence was offered as equivalent to a regular copy of the archives in Washington: but Lord Ellenborough rejected the evidence, and held, that it was necessary to have a copy examined with the archives.”‡
We may expect in time to see a judge arise, who, more tenacious of consistency than his predecessors, will refuse to take notice of the existence of the city of London, unless an examined copy of the charter of the corporation be given in evidence to prove it.
Can any exposure make this piece of technicality more ridiculous than it is made by merely stating it?
5. I shall notice only one more instance of the species of disguised exclusion which forms the subject of the present chapter. The sort of evidence which, in this instance, is taken for conclusive, is the species of official document called a record. “Records,” says Phillipps,* “are the memorials of the proceedings of the legislature, and of the king’s courts of justice, preserved in rolls of parchment; and they are considered of such authority, that no evidence is allowed to contradict them. Thus, if a verdict, finding several issues, were to be produced in evidence, the opposite party would not be allowed to show, that no evidence was offered on one of the issues, and that the finding of the jury was indorsed on the postea by mistake.” On this piece of absurdity, after what has already been said, it can scarcely be necessary to enlarge. Somehow or other, however, lawyers seem to have found out, that, like everything else which is human, so even a record,—however high its “authority,” and however indisputable its title to the appellation bestowed upon it by Lord Chief-Baron Gilbert, “a diagram” (whatever be meant by a diagram) “for the demonstration of right” (whatever be meant by the demonstration of right,)—is still, notwithstanding it be written upon parchment, liable to error: for they have found it necessary to determine that a record shall be conclusive proof only “that the decision or judgment of the court was as is there stated,” and not “as to the truth of allegations which were not material nor traversable.” This is fortunate: the fact of the judgment being one of the very few matters, contained in what is called a record, which, unless by mistake, are generally true. But, however fallible in respect of other facts, in respect of this one fact they hold it to be infallible; and its infallibility, itself needing no proof, supersedes all proof of the contrary; which, therefore, as it cannot prove anything, it would be loss of time to hear: accordingly it is not heard, but inexorably excluded.†
[* ]See Book I. Theoretic Grounds; Chap. VI Degrees of Probative Force.
[* ]Vide Book VI. Makeshift, Chap. II. § 3.
[* ]See Book VIII. Technical System: Chap. XIII. Chicaneries about Notice.
[† ]A judge by whom a cause is decided without his knowing anything about the matter,—what need, it may well be asked, has such a judge to hear evidence? But that is the very way in which causes in general, causes between man and man, are, the greater number of them, decided by learned judges. A piece of paper or parchment is provided; the hand of the judge is applied to it; the mind of the judge is not applied to it. So strictly true is this, that by an intoxicated judge, if he had but sense enough left to write his name, the business might be done exactly as well as by a sober one: by an automaton judge, a judge made of brass and iron, as well as by either. Exaggeration? Not it, indeed: nothing but the very simple truth. Stript of the tinsel with which it has been bedizened all around by interested idolatry, by unblushing hypocrisy, and prostrate admiration, the technical system presents in all its parts enough to stagger belief, and make a man doubt the reality of the objects spread out before his eyes.
[* ]Abolished by 3 & 4 Will. IV. c. 42.—Ed.
[† ]Blackst. Com. B. III. Ch. xxii. pp. 341-348.
[* ]£10. Call the yearly expense of a family £50, and give five to a family; this gives, for the expenditure of an individual, £10.
[† ]“This, for aught I could ever read, is peculiar to the law of England, and no mischief ensueth hereupon.”—2 Inst. 45.
[‡ ]Com. III. 341.
[* ]Vol. I. (6th edit.) p. 421.
[† ]Book III. Extraction; Chap. IV. Discreditive Interrogation.
[‡ ]In the disapprobation bestowed upon this rule, it is of course implied, that the case is one of those in which the production of evidence to discredit the character of the witness, is in itself proper; for which cases, see Book V. Circumstantial; Chap. XIII. Of Motives, Means, &c.; §§ 3 & 4. Character Evidence. If not, it is proper to exclude any such evidence, after he has answered, only because it is proper to exclude it, whether be answers or no. But if the case be one in which it would have been proper to adduce evidence against his character without putting any questions to himself, it is difficult to see what impropriety there can be in doing exactly the same thing after you have interrogated him and got his answer, if you do not believe his answer to be true.
[* ]Two attesting witnesses now suffice in all cases, under 7 Will. IV. and 1 Vict. c. 26. See Vol. VI. p. 533.—Ed.
[† ]See Book IV. Preappointed.
[‡ ]See Book VI. Makeshift.
[* ]Phillipps, i. 159.
[† ]Ibid. 175.
[* ]Phillips, i. 84.
[† ]Harding v. Carter, apud Phillipps, i. 97.
[‡ ]Fairlie v. Hastings, ibid. 95.
[* ]See an abstract or disgest of the Law of Evidence, recently published by Mr. Harrison, on the plan of Crofton Uniacke, Esq. (p. 8.)
[† ]Harrison, ut suprâ, pp. 9, 10.
[* ]Phillipps, i. 530.
[* ]“The question on the admissibility of parol evidence, in such cases, will depend principally upon this,—namely, whether the evidence is necessary to give an effective operation to the devise, or whether, without that evidence, there appears to be sufficient to satisfy the terms of the devise and the intention of the testator, as expressed on the face of the will.”—Phillipps, i. 515.
[† ]“The refusal to put upon the words used by a man in penning a deed or a will, the meaning which it is all the while acknowledged he put upon them himself, is an enormity, an act of barefaced injustice, unknown everywhere but in English jurisprudence. It is, in fact, making for a man a will that he never made; a practice exactly upon a par (impunity excepted) with forgery.
[* ]Phillipps, i. 281.
[† ]Phillipps, i. 486.
[‡ ]Ibid. 382, 383.
[* ]Vol. I. p. 299.
[† ]“We have seen in how many cases the words conclusive evidence cover a real exclusion: it remains to bring to notice one case in which they do not. This is when an act, designated by a distinct expression, is termed evidence of the same act designated by an indistinct one.
[† ]“The refusal to put upon the words used by a man in penning a deed or a will, the meaning which it is all the while acknowledged he put upon them himself, is an enormity, an act of barefaced injustice, unknown everywhere but in English jurisprudence. It is, in fact, making for a man a will that he never made; a practice exactly upon a par (impunity excepted) with forgery.
[a ]See the Chapter so intitled, suprà, p. 308.