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CHAPTER V.: OF THE RULE, THAT EVIDENCE IS TO BE CONFINED TO THE POINTS IN ISSUE. ‡ - Jeremy Bentham, The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 7.
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OF THE RULE, THAT EVIDENCE IS TO BE CONFINED TO THE POINTS IN ISSUE.‡
This rule, though good in principle, is frequently, as it is administered, an instrument of mischief, partly from being combined with a bad system of pleading, partly from the perverse application which has been made of it to purposes for which it was never intended. Being an exclusionary rule, it demands consideration in this place: and the occasion seems a suitable one for taking notice, not of the bad effects in the way of exclusion only, but of the bad effects of other descriptions, which are the fruit of it.
Nothing can be more proper than to exclude all evidence irrelevant to the points in dispute: and if the points in issue on the pleadings were always the points, and all the points, in dispute, nothing could be more proper than to exclude all evidence irrelevant to the points in issue. Unhappily, however, to determine what are the points in dispute, though the professed object of all systems of pleading, is very imperfectly attained even under the best; and the points really at issue are often very different from the points in issue, as they appear on the pleadings.
In so far as the representation given in the pleadings of the state of the question between the parties, fails to accord with the real state,—in so far, at least, as any point (that is, of course, any material point) which is really in dispute, is omitted or misstated in the pleadings; in so far, the rule, which requires that the evidence be confined to the points in issue, those points not being the points in dispute, operates to the exclusion of all evidence which bears only upon the real points in dispute. This includes all cases of quashing, grounded on what is called a flaw in the pleadings: as, for instance, the case of a misnomer. If you indict a man under the name of John Josiah Smith, and it turns out that his real name is John Joseph Smith, though nobody has the least doubt of his being the person meant, and though he himself would not have the effrontery to declare upon oath a belief that he was not, it is no matter—the indictment is quashed,* because, the only question at issue, as indicated by the indictment, relating to the supposed guilt of Josiah, proof, however convincing, of the criminality of Joseph, is foreign to the issue. On the same ground, in an action for non-residence, the designation of the parish by the name of St. Ethelburgh, instead of Saint Ethelburgha, was held to be (as lawyers term it) a fatal variance. On another occasion, the ground of the quashing was, that a party to a bill of exchange had been called Couch, instead of Crouch: on another, that the prisoner was charged with having personated M‘Cann, while the evidence went to show, that the man whom he had personated was M‘Carn. It was not that, in any of these instances, any real doubt existed as to the purport of the charge; nor was it that, in the guilt of defrauding two persons with names so different as M‘Cann and M‘Carn are, there was deemed to be any such difference in point of enormity as could justify so great a diversity of treatment: it was, that the unbending spirit of technical rules requires that you should prove, verbatim et literatim, the very thing which you have asserted, and, whatever may be the real issue, ties you down to the nominal one. That the substitution of an r for an n could in any other way be effected than by dropping the proceeding and beginning de novo, is what you will never get any Common Lawyer to understand.
It is the same when any other circumstance, legally material, is misdescribed in the pleadings; as when the declaration stated an absolute promise, and a conditional one was proved; and when a declaration for assaulting a constable in the execution of his office, alleged that he was constable of a particular parish, and the proof was that he was sworn in for a liberty, of which the parish was part: a notable reason for depriving the plaintiff of justice, or putting him to the expense of another suit to obtain it!†
The root of the evil here lies in the system of pleading. To eradicate it entirely, that whole system must be abolished: the mode in which what is called pleading is now conducted, namely, by a sort of written correspondence between two attorneys, must give place to oral pleading, by the parties themselves, in the presence of the judge; when either no such mistakes as the above would be made, or, if made, they would be instantly rectified. Even under the present vicious system, however, the quashing of the suit might be avoided much oftener than it is. There are mistakes that are of consequence—there are others which are of none: there are mistakes by which the opposite party may have been misled—there are others by which he cannot. It is just, certainly, that after a party has intimated to his adversary his intention of proving a certain case, he should be allowed to prove that case, and no other; since, if there were no such rule, the other party might be taken by surprise: he might come prepared with evidence to rebut what be imagined was the claim against him, and might find, on going to trial, that the one really brought was quite different. This being the reason, what, then, is the practical rule? Let the remedy be confined to the single case, in which alone there is any evil to be remedied. It the opposite party has really been misled, or put to any inconvenience by the error, he cannot, one would think, have any reasonable objection to saying so: nor to delivering the assertion under all those securities which are taken for the truth of testimony in any other case. Unless, therefore, he is willing, under these securities, to declare that, in consequence of the error, he has been either prevented from bringing the necessary evidence, or induced to bring evidence which was not necessary, let the error he rectified, and the cause go on as it would have done if there had been no error. If he be willing to make such a declaration, and if his adversary admit, or fail to disprove its truth, let the necessary delay (when any delay is necessary) be granted: and let the party by whose fault the error was occasioned, be subjected to the obligation of indemnifying the other for all bonâ fide expenses which he can prove to have been occasioned him by it.
If the rule, in the cases above examined, is attended with bad effects, it is not that it is a bad rule, but (as has been already intimated) that it is accompanied by a bad system of pleading. There is, however, another set of cases, in which the rule is applied in a sense in which it is altogether absurd: facts being shut out, under pretence of their not being the facts at issue, which, though unquestionably not the facts at issue, are of the highest importance as evidentiary of those which are.
Thus, the custom of one manor is not to be given in evidence to explain the custom of another manor; unless it be first proved, that both manors were formerly one, or were held under one lord; or unless the custom is laid as a general custom of the country, or of that particular district. Why? Because customs are “different in different manors, and in their nature distinct.” But although the customs of different manors are different, they may nevertheless be analogous; and though the custom of one manor cannot of itself prove that of another, it may assist in clearing up apparent inconsistencies in it, or in obviating an argument grounded on its supposed improbability. There is also another reason, of still greater weight, which we owe to the ingenuity of Lord Chief Justice Raymond: “for,” says he, “if this kind of evidence were to be allowed, the consequence seems to be, that it would let in the custom of one manor into another, and in time bring the customs of all manors to be the same.”* In the contemplation of so overwhelming a calamity, it is no wonder that Lord Raymond should have lost sight of whatever inconvenience might happen to be sustained by the party in the right, from losing his cause for want of such explanations as a reference to the custom of a neighbouring manor might have afforded; especially if advertence be had to the appalling fact, that the customs of all manors would come to be the same, if suffered to be shown for what they are. The reader will not, of course, indulge in any such vain fancy, as that the custom which is good for one manor, can be good, or even endurable, for the manor adjoining; or that the inhabitants of one village could even exist, under rules and regulations which bind the inhabitants of another village as well as themselves.
Again: “in a question between landlord and tenant, whether rent was payable quarterly or half-yearly, evidence of the mode in which other tenants of the same landlord paid their rent is not admissible.”† Yet what can be more strictly relevant? the determining motive in such cases usually being the landlord’s convenience, which may reasonably be presumed to be the same in the case of one farmer as of another.
Mr. Harrison gives an abstract of eight cases decided under the rule that evidence is to be confined to the points in issue; seven of which include this same sort of absurdity.
It cannot be pretended, that the evidence thus shut out is irrelevant: and to maintain, as a general maxim, that evidence of relevant facts is to be excluded, because those facts are not expressly averred in the pleadings, would be too great a stretch of technicality, even for a lawyer. For the above decisions, however, no better reason can be given;—unless that of Lord Chief Justice Raymond, which Mr. Phillipps styles an “argument of inconvenience,” be so considered.
With as good reason might any other article of circumstantial evidence be excluded. A murder, suppose, has been committed: the prisoner was near the spot; he was known to be a personal enemy of the deceased, and at a former interview he had threatened to kill him: stains of blood were found upon his linen when he was apprehended, and he had a bloody knife in his pocket. What then? None of these facts are in issue: it is not said in the indictment, that he was an enemy of the deceased, nor yet that he had used threatening language towards him; he is not charged with soiling his linen; and though, indeed, it is alleged in the indictment, that he killed and slew the deceased with a knife, value sixpence, it is nowhere imputed to him that he stained the knife. At this rate, the plaintiff would need to include in the declaration every fact which, in the character of an evidentiary fact, he might have occasion to bring to the notice of the judge.
We have now considered the rule in both its applications: its abusive application, which can never be other than mischievous; and its legitimate application, which, to be purely beneficial, wants only to be combined with a rational mode of pleading. Suppose the system of pleading reformed; this rule, to be a good one, would only need to be always employed in its legitimate, and never in its abusive, sense. When thus restricted, however, what does it really mean? Only, that evidence is not to be admitted of any facts, except either those on which the decision immediately turns, or other facts which are evidentiary of them.
General as this rule is, greater particularity will not, in this instance, be found to be attainable; since the question, on what facts the decision turns, is a question, not of evidence, but of the substantive branch of the law: it respects the probandum, not the probans: it does not belong to the inquiry, by what sort of evidence the facts of the case may be proved; it belongs to the inquiry, what are the facts of which the law has determined that proof shall be required, in order to establish the plaintiff’s claim.
This circumstance, obvious as it is, might easily be overlooked by one who had studied the subject only in the compilations of the English institutional writers; who, not content with directing that the evidence be confined to the points in issue, have farther proceeded, under the guise of laying down rules of evidence, to declare, on each occacion, what the points in issue are.
One whole volume out of two which compose Mr. Phillipps’s treatise on the Law of Evidence,—with a corresponding portion of the other treatises extant concerning that branch of the law,—is occupied in laying down rules concerning the sort of evidence which should be required in different sorts of actions or suits at law. But why should different forms of action require different sorts of evidence? The securities by which the trustworthiness of evidence is provided for, and the rules by which its probative force is estimated, if for every sort of cause they are what they ought to be, must be the same for one sort of cause as for another. The difference is not in the nature of the proof; it is in the nature of the facts required to be proved. There is no difference as between different forms of action, in reason, or even in English law, in respect of the rules relating to the competency of witnesses; nor, in general, to the admissibility or the proof of written documents; nor in respect of any other of the general rules of evidence. What Mr. Phillipps (I mention him only as a representative of the rest) professes, under each of the different forms of action, to tell you, is, what facts, in order to support an action in that form, it is necessary that you should prove.
Now, what are these facts? In every cause, either some right is claimed, or redress demanded for some wrong. By a wrong, is of course meant a violation of a right. Some one or more of those facts, therefore, by which rights are conferred, or taken away, or violated, must at any rate be proved: and if proof of any other fact be necessary, it can only be as evidentiary of these. If, therefore, a man professes to tell you all the facts, some one or more or all of which you must prove, in order to get a decision in your favour,—he must furnish you, among other things, with a complete list of all the facts which confer or take away—and all the acts which violate, all the rights, which have been constituted and sanctioned by law. This, accordingly, is what Mr. Phillipps and others of his brethren attempt to do. But, to enumerate the facts which confer or take away rights, is the main business of what is called the civil branch of the law: to enumerate the acts by which rights are violated—in other words, to define offences—is the main business of the penal branch. What, therefore, the lawyers give us, under the appellation law of evidence, is really, in a great part of it, civil and penal law.
Another part of it consists of rules, which are called rules of evidence, but which are really rules of pleading. These are laid down under the guise of instructions for adapting the evidence to the pleadings. It is not often, however, that a man has it in his power to mould the evidence as he pleases: but he always has the power,—that is to say, his lawyers have it for him,—of moulding the pleadings (those on his own side at least) as he pleases. These rules, therefore, for adapting the evidence to the pleadings, are, in fact, rules for adapting the pleadings to the evidence.
Two examples will illustrate the intermixture of the substantive law with the law of evidence; and one of them will also afford a specimen of the intermixture of rules of evidence with rules of pleading.
Under the title Burglary, Mr. Starkie begins by saying, that on an indictment for burglary, it is essential to prove—1st, A felonious breaking and entering; 2dly, of the dwelling-house; 3dly, in the night time; 4thly, with intent to commit a felony. He then proceeds to inform us, that there must be evidence of an actual or constructive breaking: for if the entry was obtained through an open door or window, it is no burglary. That the lifting up a latch, taking out a pane of glass, lifting up folding-doors, breaking a wall or gates which protect the house, the descent down a chimney, the turning a key where the door is locked on the inside,—constitute a sufficient breaking. That where the glass of the window was broken, but the shutter within was not broken, it was doubted whether the breaking was sufficient, and no judgment was given; and so on in the same strain. Who does not see that all this is an attempt—a lame one, it must be confessed (which is not the fault of the compiler,) but still an attempt—to supply that definition of the offence of burglary, which the substantive law has failed to afford?
The title “burglary” consists of twelve octavo pages, not one line of which is law of evidence. It is all, like the part above extracted, penal law; except three pages, which are occupied in stating how the ownership of the dwelling-house, in which the offence was committed, must be laid in the indictment; and which therefore belong to pleading.
To take our next example from the non-penal branch of the law: when Mr. Phillipps, in treating of the sort of evidence required to support an action of trover, informs us, that the plaintiff in this action must prove that he had either the absolute property in the goods, or at least a special property, such as a carrier has, or a consignee or factor, who are responsible over to their principal; and further, that he must show either his actual possession of the goods, or his right to immediate possession; and that he must prove a wrongful conversion of the goods by the defendant, and that the denial of goods to him who has a right to demand them, is a wrongful conversion; and that the defendant may show that the property belonged to him, or to another person under whom he claims, or that the plaintiff had before recovered damages against a third person for a conversion of the same goods, or that he was joint tenant of the property with the plaintiff, or tenant in common, or parcener, or had a lien on the goods, or a hundred other things which it would be of no use to enumerate;—what can be more plain, than that he is here telling us, not by what evidence an action of trover is to be sustained, but in what cases such an action will lie: that he is telling us, in fact, what we are to prove, not by what evidence we are to prove it; that he is enumerating the investitive facts, which will give to the plaintiff a right to the service which he claims to be rendered to him at the charge of the defendant; and the divestitive facts, by which that right will be taken away from him.
Yet, of this sort of matter the whole of the chapter, a few sentences excepted, is composed; and this it is that composes the greatest part of almost all the other chapters in the volume; which yet does not include any sorts of causes except those which, in form at least, are non-penal.
I do not mention this as matter of blame to the institutional writers from whose compilations the above examples are drawn.—There are some things really belonging to the subject of evidence, which it is necessary to state in treating separately of each particular kind of action; viz. the nature of the corresponding preappointed evidence (if the law has rendered any such evidence necessary to support the claim that is the subject of the action;) and also the nature and amount of the evidence which the law renders sufficient to establish a primâ facie case, and throw the onus probandi upon the other side. With this matter really belonging to Evidence, it may be convenient to mix up such matters belonging to civil and penal law, as ought to be adverted to by the professional agent of the party who brings the action. The arrangement which is best for the practitioner, or the student of the law, differs as much from that which is best for the philosopher, as the alphabetical arrangement of words in a dictionary differs from the methodical classification of them in a philosophical grammar.
[‡ ]This Chapter has been added by the Editor.
[* ]The court may order the misnomer to be amended under the 7 Geo. IV. c. 64, § 19, without quashing the indictment.—Ed.
[† ]See the title Variance, in Starkie’s Law of Evidence.
[* ]Phillipps, i. 162.
[† ]Harrison, ut suprà, p. 132.