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Rationale of Judicial Evidence - John Stuart Mill, The Collected Works of John Stuart Mill, Volume XXXI - Miscellaneous Writings 
The Collected Works of John Stuart Mill, Volume XXXI - Miscellaneous Writings, ed. John M. Robson (Toronto: University of Toronto Press, London: Routledge and Kegan Paul, 1989).
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Rationale of Judicial Evidence
mill’s first major work was as an editor, and it is a credit to his capacity and temper that he was able to describe it in his Autobiography with such equanimity:
About the end of 1824, or beginning of 1825, Mr. Bentham, having lately got back his papers on Evidence from M. Dumont (whose Traité des Preuves Judiciaires, grounded on them, was then first completed and published), resolved to have them printed in the original, and bethought himself of me as capable of preparing them for the press; in the same manner as his Book of Fallacies had been recently edited by Bingham I gladly1 undertook this task, and it occupied nearly all my leisure for about a year, exclusive of the time afterwards spent in seeing the five large volumes through the press. Mr. Bentham had begun this treatise three times, at considerable intervals, each time in a different manner, and each time without reference to the preceding, two of the three times he had gone over nearly the whole subject.2
Bentham’s project in fact dated back to the early 1800s, as Mill indicates in his Preface of 1827: “The papers, from which the work now submitted to the public has been extracted, were written by Mr. Bentham at various times, from the year 1802 to 1812.”3 There had been several attempts to shape manuscript into book before Etienne Dumont, who had already laboured mightily in the vineyard to squeeze out the 1802 vintage Bentham (Traités de législation civile et pénale), succeeded in 1823 with his French redaction, Traité des preuves judiciaires. In 1809, when Dumont had just commenced the work that took some fifteen years to complete, Bentham described the early states of the manuscripts to him, partly explaining in the process why Dumont was to take so long:
In reading the old stuff of Years 1803 and 1804 (1804 was part of the way a 2d edition [i.e., version] of 1803) it would be an act of charity or of justice (place it to which account you please) if you would hold a pencil in your hand and mark by cancelling lines such passages as are clearly superseded by the edition of 1808, as on the opposite page.—[Bentham illustrated on a page of this letter.]
still more if with pencil or better still if with pen you would, in such parts as may appear not superseded, make a memorandum indicative of the places in which they may with most propriety be respectively inserted: for example in such a Chapter: or between such and such a Chapter. viz in the edition of 1808 which contains 14 or 15 Chapters.
If in this way you amend the French, it will be ingratitude in you to grudge doing the same service to the English.4
Not only Dumont was acting as a legal aide to Bentham. In the same letter Bentham says that “the whole of Book Circumstantial” in the version of 1808 had been “marginal-contented” by Herbert Koe, then his amanuensis.5 The pattern is similar to that he adopted in most of his publications, which appeared as edited by disciples, so that, in Sydney Smith’s words, Bentham was Bentham to the civilized world “after that eminent philosopher has been washed, trimmed, shaved and forced into clean linen.”6
Never one to underestimate, Bentham looked for someone to take on “the coal-heavers work of revising, expunging various Sections and polishing,” or, as he alternatively phrased it, “revision, with confrontation of the parts, that there may be no repetitions or inconsistencies, or gaps.”7 And even these editorial labours take one only up to the press, not through it, as Dumont had earlier pointed out to Bentham: “Yet what a life—what a galley-slave life is an editor’s Correct as he may, faults will remain to tear his soul in pieces—an & is wanting—a word is omitted—a letter misplaced—stops in confusion. Truly a corrector of the press is a galley-slave!”8
In addition to Koe, James Mill, newly acquainted with Bentham and dependent on free-lance writing and editing, was enlisted as coal-heaver and galley-slave on the masses of “evidence” manuscript. Ever hopeful, Bentham wrote to his brother on 29 September, 1809: “Evidence—the editing it forms [James] Mill’s sole business, and the business of striking out various sections so to fit it for the press goes on prosperously. I hope to see it ready for the press before Christmas—yes considerably before.”9 Mill exerted himself in his usual thorough fashion, giving “a lesson in reading Benthamic copy” to the printer, who became “far less frightened than he formerly was, or pretended to be”; Mill also was putting in hard days at sections such as “Circumstantial,” which left him “not a little non plused, on more occasions than one, whether to take or reject—unwilling to lose, and yet unwilling to overload,” and “Pre-appointed, . . . a remarkably interesting part, [which] is not for that reason a part the sooner to be got through.”10 Letters between Dumont and Bentham are full of badinage as well as hints about how the revisions were made,11 but one letter from James Mill to Bentham best summarizes the labour:
I have this day got to the end of Exclusion. Impossibility then is all that remains: and I am at the end of the principal stage of my labours, viz. my operations upon your text,—i.e. among your various lections, the making choice of one—the completing of an expression, when, in the hurry of penmanship, it had been left incomplete, etc. Editorial notes, of which we have so often talked, are only thus far advanced, that a variety of rudiments are set down, with references to the places of the work where they should be introduced. But it has often happened to me to find, what I had thought might be added as a note in one place, was given admirably by yourself in another place, and a better place. And in truth, having surveyed the whole, the ground appears to me so completely trod, that I can hardly conceive anything wanting. It is not easy, coming after you, to find anything to pick up behind you. My memory, too, is so overmatched by the vast multiplicity of objects which the work involves, that I am afraid to trust myself in any kind of notes, save suggestions of cases, illustration by instances,—lest what I say should be an idea brought forward in some other part of the work. All this, however, is not intended to operate as an apology or pretext for indolence. Notes there shall be written, and very full ones,—whether these notes shall be printed, is another question.12
In October 1811, writing to James Madison, President of the United States, to demonstrate his competence to supply a comprehensive code, Bentham says:
The subject of evidence has been examined in its whole extent and sifted to the bottom. A work of mine on this subject under the title of The Rationale of Evidence enough to occupy two moderate sized quarto volumes, has been for some time in the hands of another friend of mine [i.e., James Mill], and will be in the Printers’ hands in the course of about two months.13
But such was not to be, and James Mill’s mighty efforts appear to have been wasted. In late November Bentham’s attention turned to what became An Introductory View of the Rationale of Evidence for the Use of Non-Lawyers as well as Lawyers, of which 148 pages (about one-third of the whole) were printed by 1812, and the rest was written at that time, but the work was not published until Bowring’s edition in 1843.14
And only in 1823 did a much abbreviated version of the Rationale itself appear in Dumont’s redaction, Traité des preuves judiciaires, which was followed by an anonymous English translation of it. A Treatise on Judicial Evidence, in 1825. The younger Mill, saying nothing of his father’s or anyone else’s shaping hand, indicates that all was still to do when his call came.
[The] three masses of manuscript it was my business to condense into a single treatise: adopting the one last written as the groundwork, and incorporating with it as much of the two others as it had not completely superseded I had also to unroll such of Bentham’s involved and parenthetical sentences, as seemed to overpass by their complexity the measure of15 what readers were likely to take the pains to understand It was further Mr. Bentham’s particular desire that I should, from myself, endeavour to supply any lacunae which he had left: and at his instance I read for this purpose, the most authoritative treatises on the English Law of Evidence, and commented on a few of the objectionable points of the English rules,16 which had escaped Bentham’s notice. I also replied to the objections which had been made to some of his doctrines, by reviewers of Dumont’s book, and added a few supplementary remarks on some of the more abstract parts of the subject, such as the theory of improbability and impossibility. The controversial part of these editorial additions was written in a more assuming tone, than became17 one so young and inexperienced as I was but indeed I had never contemplated coming forward in my own person, and, as an anonymous editor of Bentham. I fell into the tone of my author, not thinking it unsuitable to him or to the subject, however it might be so to me. My name as editor was put to the book after it was printed, at Mr. Bentham’s positive desire, which I in vain attempted to persuade him to forego.18
The concluding sentences are borne out by correspondence both at the time of publication and when the work was reprinted for the Bowring edition of Bentham’s Works. While the work was in press (it was published in mid-May 1827),19 Bentham wrote on 18 April:
It is matter of no small surprise to me to see the title page without your name to it Nothing could be more clearly understood between us than that it should be there I do not say that the word title page was used on that occasion—but such was the meaning. If what you have done has been written under a different impression, so much the worse for me—and if the book be good for any thing, for the [world?] at large.
To this Mill replied:
I certainly did not understand you to have expressed any desire that my name should be in the title page. Nevertheless, if you positively require it, I am willing that it should be so, rather than that you should imagine I had taken less pains with the work under the idea of its being (so far as I am concerned) anonymous. But I confess I should greatly prefer that my name should be omitted. That the work should be benefited by it is out of the question. I myself might be benefited inasmuch as it would prove that you thought me worthy to be the editor of a work of yours. But on the other hand very little of the labour which I have bestowed upon the book appears on the face of it, or can be known to any one who was not acquainted with the MS. If my name were annexed to it people would think that I wished to make a parade either of your good opinion [of] me, or of the few notes which I have added.20 The notes are not of sufficient value to make it of any consequence to the public to know who wrote them—I should be very sorry to be suspected of wishing to obtain a reputation at a cheap rate by appearing before the public under the shelter of your name.
Bentham’s brief response on 24 April was decisive: “My dear John / Your name is of far too great importance to the work to be omitted in the title page to it.” Mill’s immediate acceptance is lost, but Bentham’s confirmation (still on the 24th) is again typical: “Dear John / Amen. If you know not what that word means send to the Booksellers for a Hebrew Dictionary.” “P.S. Name at the end of the Preface.”21
So much for modesty and deference. After the Rationale was published, the editor’s close friend, John Arthur Roebuck, reviewing the work in the house journal, the Westminster Review, gave little away:
On the labour of the editor we are hardly entitled to give an opinion; not knowing the state of the papers from which he has compiled the work, we are unable to judge in how much we are indebted to him for the order and regularity which the work at present evinces. The notes and additions he has supplied are few, but those few are judicious they are short and to the purpose.22
And the Law Magazine, which says Mill edited the work “with great ability,” and in a later article judges that he “contributed by far the most valuable part of the chapter on conclusive evidence,”23 can have given only pleasure. But through William Empson’s pen, the old enemy, the Edinburgh Review, gave the reviewer’s sting that brought on Mill’s allergic regret about his tone. In the course of a thorough thrashing of the author, Empson takes but a little breath before turning on the editor.
Mr Mill, junior, is not likely to have underrated the importance of the trust confided to him by Mr Bentham . . .; yet, unless they were persuaded, upon Hindoo principles, that he was born of a legal caste, and that therefore talents of this description must be hereditary; or unless they took the fiction, by which every Englishman is supposed to be acquainted with the law, for a reality, we think that both parties would have exercised a sounder discretion—the one in not reposing, the other in not accepting, such a charge. Considering that Mr Bentham’s own experience of the law of England must have been long suspended, and can have been at best only an acquaintance with principles rather than details, an accurate knowledge of this despised part of jurisprudence became an indispensable qualification on the part of his assistant—the groom, to whom a colt, so naturally wild, and so peculiarly circumstanced, was made over to be physicked, broken in, and got ready for the fair. If it were likely that a pamphlet might be compiled of the minor inaccuracies of the original, there could be no object in leaving more than a given portion of them uncorrected, and it was surely quite unnecessary to add supplemental errors in the notes.
And perhaps equally unnecessary for the reviewer to add:
The cannon’s roar in the text is, throughout, ludicrously accompanied by a discharge of the editor’s pocket-pistol in the note. The deep growl that mutters from above, is followed by a snap and a snarl from below; so that, in the place of any instructive commentary, or even reproof, there is a long reproachful howl, which reminds one of nothing philosophical and scholastic—except possibly it may be the accompaniment with which a litter of young Cynics used to attend the lectures at Diogenes’s Tub.24
The riposte in the Westminster to the Edinburgh’s attack on the Rationale included only a brief allusion to the youthful editor, in which the usual irony against the Edinburgh is blunt. Offering the reviewer’s constant plea of limited space, the anonymous friend says:
We must leave Mr Mill, junior, under rebuke for having found fault with the English law, lacking the knowledge of a craftsman; while it is confessed that the law should be level and accessible to all understandings—when the very accusation of ignorance becomes a condemnation of the thing indicated. . . .25
There can be no doubt that Mr. Mill, junior, agreed that he had taken the prudence out of jurisprudence, and when in 1837, a decade older and proportionately wiser, he was approached by John Hill Burton about the reprinting of the Rationale in the collected edition, his response indicates a lingering smart: “If it is proposed to reprint, along with the Rationale of Evidence, my preface & notes, I should like much to see the proofs, as there are various things in the notes which I regret having published. Otherwise I have nothing to suggest.”26 On Burton’s urging, he took second thought, and suggested the suppression of the note at I, 126 (15-16 below), then adding:
But I should wish my signature, at the end of the preface, & all mention of my name, to be omitted. I never intended to put my name to the book in any shape, & only did so because Mr Bentham insisted on it, & I feared that if I persisted in my refusal he would think I had done my work so ill as to be ashamed to avow it.
I should also wish a paragraph to the effect of that on the opposite page, to be added in brackets, at the end of the preface.27
That paragraph was the basis of the addition to the preface in the Bowring edition, in which Mill anonymously apologizes for “the air of confident dogmatism perceptible in some of [the] notes and additions,” excused partly by “their having been written in very early youth,” and partly by his belief that they would be anonymous, and so should be “accordant with the spirit of the work itself, and in Mr. Bentham admissible. . . . ” “His name,” he concludes truthfully if in the exculpatory third person, “was subsequently affixed, contrary to his own strongly expressed wish, at the positive desire of the venerable author, who certainly had a right to require it.”28 After sending the paragraph to Burton, Mill wrote again to suggest further adding the words (quoted above from the final version) “and in Mr. Bentham admissible”:
Otherwise I shall have the appearance of censuring the tone of the work, which I am very far indeed from intending. I still wish to suppress any direct mention of my name, not to prevent it from being known to the reader if he chuses to enquire about it which I know cannot be done, but because its suppression is as it were, an act of disavowal as to any appropriateness in the notes and additions to my present frame of mind, and because I do not like to perk in the face of the world in general that the person known by my name has written things which he is ashamed of, when my name has never in any instance been put to writings I am not [sic] ashamed of.29
One must not assume, however, that the experience was a disaster for Mill. His account, written, it should be recalled, some thirty years after the editing, concludes with a passage that emphasizes individual without entirely forgetting general utility:
The time occupied in this editorial work was extremely well employed in respect to my own improvement. The Rationale of Judicial Evidence is one of the richest in matter of all Bentham’s productions. The theory of evidence being in itself one of the most important of his subjects, and ramifying into most of the others, the book contains, very fully developed, a great proportion of all his best thoughts, while, among more special things; it comprises the most elaborate exposure of the vices and defects of English law, as it then was, which is to be found in his works; not confined to the law of evidence, but including, by way of illustrative episode, the entire procedure or practice of Westminster Hall. The direct knowledge, therefore, which I obtained from the book, and which was imprinted upon me much more thoroughly than it could have been by mere reading, was itself no small acquisition. But this occupation30 did for me what might seem less to be expected, it gave a great start to my powers of composition. Everything which I wrote subsequently to this editorial employment, was markedly superior to anything that I had written before it.31 Bentham’s later style, as the world knows, was heavy and cumbersome, from the excess of a good quality, the love of precision . . . But his earlier style . . . is a model of liveliness and ease combined with fulness of matter, scarcely ever surpassed: and of this earlier style there were many striking specimens in the manuscripts on Evidence, all of which I endeavoured to preserve. So long a course of this admirable writing had a considerable effect upon my own. . . .32
Given the striking stylistic differences between Mill’s journalism and speeches in his apprentice years and in the early 1830s, there is no reason to question this assessment. Nor can one doubt that his practised diligence and beaverish industry were helped into habit by the work. Also, the sheer bulk of the Rationale calls for the kind of commendation too often denied to editors.33 In this respect, the skill of the youngster would command the highest of meagre wages paid such diligent servants (present coal-heavers and galley-slaves excepted). The heaviest demands were made by Bentham’s manuscripts themselves—the hand-writing execrable, the fragmentary state of the references and the allusiveness exhausting, the repetitions with variation mind-destroying.
As to the benefit to Mill of the content, some debate is possible, but the coincidence of Bentham’s major themes34 with Mill’s own cast of thought is hardly accidental or trivial. In general, one can point to the epistemological, psychological, and logical speculations in the Rationale as reflected throughout Mill’s writings. The last is most obvious, though no pushing of slender inference would justify asserting that Mill’s System of Logic grew directly and solely out of his editing of Bentham’s Rationale, for he had begun the study of logic in early youth, had written his “Traité de Logique” (derivative as it was) in 1820-21, and had worked hard on the subject with his fellow “Students of Mental Philosophy” during the mid-1820s.35 But he began seriously considering writing on “the science of science itself, the science of investigation—of method,”36 not long after the appearance of the Rationale. And the interconnections are significant. In the first place, the examination of evidence is at the centre of induction.37 Furthermore, Bentham’s discussion of probability and improbability prompted some of Mill’s more interesting notes (e.g., 17-18, 28-32) that adumbrate his speculations in the Logic.38 Bentham’s attention to psychological factors is less obviously manifest in Mill’s work, but is consonant with his discussions not only in the Logic but in his social thought.
More pervasive, especially in Mill’s newspaper writings at the time, and his strenuous propagandism for the Philosophic Radical programme, is what L.J. Hume identifies as Bentham’s “single intellectual enterprise” between 1802 and 1822, “the development of a campaign against misrule in all its forms.”39 The centrality of the Rationale in this enterprise is obvious in such statements as “Evidence is the basis of Justice,”40 and the young Mill, though not subtle about the meaning of “justice,” certainly worked for his mentors’ version of it. Probably the most telling example, linking cause with effect, is the note attacking the dicta of the moral-sense schools, beginning “An appropriate name for this class of phrases would be covers for dogmatism; an appellation indicating the property common to them all, of serving as cloaks for ipse-dixitism . . . ” (15). This passage echoes tone for tone the chapter in Bentham’s Introduction to the Principles of Morals and Legislation that Mill repeatedly cited in his own polemical essays on ethics41 —his reason for suppressing it in Bowring’s edition is not at all obvious, as repetition is the norm rather than the exception in that edition, and Mill used the same material in his well-known essay on Bentham in the London and Westminster in 1838, and developed part of the argument further in his essay on Nature, written in the 1850s. Furthermore, the argument appears in other guise at 90, where the statement that the “love of justice” is not innate interestingly anticipates the final chapter of Utilitarianism.
Apart from absorbing general tenets, Mill must also have stocked his capacious mind with considerable information, for Bentham’s quirky text is as full of matter as of mannerism, and abounds in suggestive and telling opinion. However, much of this matter (as well as the general tenets) was also found elsewhere in Bentham’s and James Mill’s writings (including the latter’s Commonplace Books), as well as in the intense Radical discussions and ephemeral journalism, and tracing any specific notion in the younger Mill’s work to the editing of the Rationale is uncertain. In his many general allusions to Bentham’s thought he of course touches on ideas found in the Rationale as well as in other writings of a genius not liable to single utterance of insights, and, curiously enough, the central issue of the Rationale stayed with Mill, though it occupies almost no place in his own concerns. In a letter to Cliffe Leslie, the comment, late and solicited, is definite:
I agree with you in going the complete length with Bentham as to the admissibility of evidence. There are I believe frequent cases like that you mention, of practical mischief both to the accused & to others from his not being examined as a witness. The one point on which alone B seems to me to be wrong is in allowing the judge to interrogate.42
Apart from the fundamental issues raised in the Rationale, specific points and applications can be seen in Mill’s writings, especially those of the 1820s, many of which, as he said, dwelt on “some defect of the law, or misdoings of the magistracy or the courts of justice,”43 and, as he might have added, the inutility of oaths, the culpability of “Judge and Co.,” and the absurdities of technical obstructions. However, on the whole Mill took comparatively little interest in most legal questions, the early decision not to enter the Inns of Court being as decisive as that not to go to Cambridge. His mind did not take a legal bent, and so, even allowing for his youth and inexperience, it is not surprising to find little obvious originality in his notes and additions, which had not even the energy derived from self-prompting. Still, Roebuck’s remark quoted above hardly seems adequate (though it would be welcomed by the present editor): “The notes and additions [the editor] has supplied are few, but those few are judicious: they are short and to the purpose.” First, Mill’s contributions are not really few or short: they number about seventy, plus forty-two referential footnotes, and while some are perfunctory and several, appropriately brief, concern the text (e.g., 13, 24, 24-5), bring information up to date (e.g., 38, 45), or give internal references (e.g., 33), the majority are substantive, including definitions (e.g., 11, 12, 18), illustrations (e.g., 18-19), and corrections (e.g., 22-3, 28-30, 30-2, 49, 50—this last is specially interesting, as it uses information from James Mill’s History of India).44
Were Mill’s contributions “to the purpose”? To judge that they are seems apposite. In substance Mill did not overreach himself or his brief, although it must be admitted that Bentham’s extravagant play of mind makes pontification about proper exclusion or inclusion difficult. The critic who has looked most closely at Bentham’s writings on adjective law, William Twining, is enthusiastic about Mill’s general contribution, saying that it
must rank as one of the most remarkable editorial feats in history. Anyone who has had occasion to work with Bentham manuscripts will recognise the magnitude of the task, the crabbed script, the convoluted prose, the tendency to repetition and, above all, the sheer volume of the material, are enough to daunt committed and experienced editors.
But, he adds,
The quality of the achievement is less easy to assess. Mill succeeded in organising the material into a reasonably coherent structure; he judiciously preserved many eloquent passages in Bentham’s early, more direct, style; no doubt he made it more readable than the original manuscripts, although much of it falls far short of the clarity and simplicity of Dumont. Mill competently filled in a number of gaps; he was generally scrupulous in identifying passages of which he was the author and in indicating points where he disagreed with Bentham. His youth and his lack of training may have been an advantage in allowing him to approach the task boldly with few inhibitions, yet there is little to suggest that he misrepresented, distorted or suppressed any of Bentham’s views.45
The longest of Mill’s substantive additions, especially 70-83 and 84-90, quite justify Twining’s judgment about the extraordinary nature of the editing.46 In them particularly he seems to be saying what would be “in Mr. Bentham admissible,” though he is less spectacular than his mentor; the imitation is so close, indeed, that at times two readings are needed to get at the syntax, though in Mill’s passages no more are generally required to get at the sense.
Were Mill’s contributions, in spite of his own later doubts, “judicious”? In rebuking the Edinburgh for its earlier sins (see esp. 57-64, 64-6), Mill did not go near the limits of the journal warfare of the time,47 but should have expected the spirited rebuff he received after making such comments on the Edinburgh’s reviewer as: “But I waste time, and fill up valuable space, in arguing seriously against such solemn trifling” (66). The “pocket-pistol” comment presumably was prompted by the heavy irony against lawyers found throughout (see, e.g., 46, 46-8), as well as the attacks on religion (e.g., 54-5). And Mill’s adoption of an ethical stance learned from his father is not endearing: “After an attentive consideration . . ., the reader will probably join with me . . .” (30). Apart from these local and political short-term reverberations, the evidence suggests, as he might have said, that a less bellicose and dismissive tone would have been appropriate, even though it would have left Bentham alone on the provocative salient he himself typically advanced.
[1 ]In the Early Draft of the Autobiography, “gladly” does not appear.
[2 ]Autobiography, Collected Works [CW] (Toronto: University of Toronto Press, 1981), I, 117.
[3 ]Below, p. 5. Subsequent references are given in parentheses in the text.
[4 ]Correspondence, VIII, ed. Stephen Conway (Oxford: Clarendon Press, 1988), 36 (11 July, 1809).
[5 ]Ibid. Mill himself learned from Bentham to “marginal-content” his essays; see, e.g., his early “Traité de Logique,” in Journals and Debating Speeches, CW, XXVI-XXVII (Toronto: University of Toronto Press, 1988), 145-90.
[6 ]“Bentham’s Book of Fallacies,” Edinburgh Review, XLII (Aug. 1825), 367. Smith is actually referring to a second valetting by a reviewer, and indeed the Rationale after Mill’s ministrations still is not fully groomed.
[7 ]In a letter to his brother Samuel on 20 August, 1806, Bentham says he is within a few days of completion, and goes on to the first comment quoted above; in another of 18-20 September, he says, “Evidence—viz: the large volume that I mean to publish in the first instance, is finished: arrears of marginal-contenting of d° finished within the value of 3 or 4 days work,” and then makes the second remark quoted in the text. (Correspondence, VII, ed. John Dinwiddy [Oxford: Clarendon Press, 1988], 365, 381.)
[8 ]Ibid., 12 (7 Mar., 1802).
[9 ]Ibid., VIII, 46.
[10 ]James Mill to Bentham (25 July, 26 and 31 Oct., and 6 Nov., 1809), ibid., 37, 47-8, 49, and 50.
[11 ]For example, Bentham to Dumont: “For Your [sic] miserable predilection in favour of Evidence I know of no other cause than the non-existence of it. Had it existence, it would contain, of course, like everything else from the same hand, ‘formes trop abregées’ or trop etendues, or both together: besides containing words,—the Lord above knows how many,—any one of which, like ‘forthcomingness’ would be sufficient to make the whole unreadable.” (Correspondence, VII, 518 [7 Aug., 1808].)
[12 ]Ibid., VIII, 57-8 (6 Dec., 1809).
[13 ]Ibid., 208.
[14 ]J.S. Mill took a rather dismissive attitude to this work: “My notions of Mr. Bentham’s intentions with respect to the ‘Introduction to the Rationale’ (though I confess it is but an indistinct notion) has always been that he intended to put it forth as a kind of feeler, at a time when he did not contemplate finishing the work itself for publication at an early period. My opinion is entirely adverse to publishing the Introduction at all; & if that is decided upon, the later in the collection it comes the better. I would much rather it followed, than preceded, the Rationale.” (To John Hill Burton, Earlier Letters, ed. Francis E. Mineka, Vols. XII and XIII of CW [Toronto: University of Toronto Press, 1963], XIII, 368; 23 Jan., 1837 [sic for 1838].) However, the Introductory View was published at the beginning of Vol. VI of the collected edition, before the Rationale; see note 26 below
[15 ]The Early Draft reads “to overpass in obscurity”.
[16 ]The Early Draft is more specific: “I read at his instance Phillipps on the Law of Evidence and part of Starkie and wrote comments [the cancelled version reads: “such comments as I could”] on those few among the defective points in the English rules of evidence.”
[17 ]Mill’s embarrassment over this tone, commented on below, is evident in his revision of the version in the Early Draft: “The tone of these additions, or at least of the controversial part of them, was more assuming than became” [an earlier version reads, “assuming, even to arrogance, and unbecoming”].
[18 ]Autobiography, CW, I, 117-19. Cf. the account in the Preface below, which contains the anodyne remark that the editor’s task “has chiefly consisted in collating the manuscripts” (6).
[19 ]The Examiner on 13 May, 1827, said that it would appear “in a few days, in five thick volumes” (304).
[20 ]The word “added” is crossed out but the word substituted for it (“appended[?]”) is mostly torn away.
[21 ]Mill’s letter is in EL, CW, XII, 18-19, where Bentham’s letters are given in notes.
[22 ]Westminster Review, IX (Jan. 1828), 216.
[23 ]Law Magazine, I (1828-29), 185-219, and VI (1831), 356.
[24 ]Edinburgh Review, XLVIII (Dec. 1828), 464n-5n.
[25 ]“Bentham—Edinburgh Review,” Westminster Review, X (Apr. 1829), 392. It may be that the defence was less sturdy because the Mills had by this time withdrawn from the Westminster stable.
[26 ]Without pausing, he in fact went on with a proposal: “I should rather have suggested putting the ‘Introduction’ after the Rationale itself—as being a sort of summary or résumé of it, a kind of Table Analytique, as I imagine it to be—& more dry & more abstruse than the work itself, consequently rather calculated to repel readers from it. But without having read the Introduction (except a small portion which was printed in Mr. B.’s lifetime) I cannot presume to judge,” (EL, CW, XII, 361-2 [29 Nov., 1837].) Apart from the general sloppiness of the Bowring edition, the lack of any manuscripts meant that Mill’s edition had to be used. Several notes were added, but except for the matters mentioned in letters to Burton on 15 December, 1837 (Later Letters [LL], ed. Francis E. Mineka and Dwight N. Lindley, Vols. XIV-XVII of CW [Toronto: University of Toronto Press, 1972], XVII, 1982) and 25 October, 1838 (see the next note), nothing of Mill’s was altered or removed. (Mill himself suggested in the first of these that the last paragraph of his note on the Belgic Code [92 below] be omitted, but it was not.) He had just a fortnight before his first letter to Burton indicated unambiguously to William Tait, the publisher of the Bowring edition, that he would not write a life, memoir, or critique of Bentham for the Works because he did not wish to be “in any way mixed up with their proceedings as [he liked] to avoid getting into a hornet’s nest,” and because he was planning “a very elaborate article, speaking [his] whole mind” about Bentham in “the proper place,” the Westminster, as a review of the edition (EL, CW, XII, 357-8 [18 and 20 Nov., 1837]). His “Bentham” appeared in December 1838 (in Essays on Ethics, Religion, and Society, CW, X [Toronto: University of Toronto Press, 1969], 75-115).
[27 ]LL, CW, XVII, 1981 (9 Dec., 1837). Nearly a year later, evidently on Richard Doane’s instigation, Burton suggested the omission of the note at II, 236 (22-3 below), and Mill agreed on the grounds that it was “of very trifling importance,” though he did not “feel the force of the objection to it” (LL, CW, XVII, 1988-9 [25 Oct., 1838]).
[28 ]The addition of 1837 is printed below (10) following the original Preface.
[29 ]EL, CW, XIII, 368.
[30 ]In the Early Draft Mill first wrote “day’s work” which he altered to “year’s work”.
[31 ]In the Early Draft he wrote and then cancelled: “This was the effect of the familiarity I gained wtih Bentham’s style as a writer.”
[32 ]Autobiography, CW, I, 119.
[33 ]It has been estimated that the still extant manuscripts by Bentham on evidence, procedure, and judicial organization exceed 13,000 folios (William Twining, “Bentham’s Writings on Evidence,” Bentham Newsletter, No. 10 [June 1986], 3). And the manuscripts that Dumont and Mill used are not among them, having presumably been discarded in the printing.
[34 ]The bulk of the Rationale being so daunting, William Twining’s amazingly clear and succinct summary should be recommended; indeed there is no substitute. He introduces his analysis by a one-paragraph “catechism” that indicates the central themes: the end being rectitude of decision; the system of procedure being the “Natural” rather than the prevailing “Technical” one; the greatest instrument the admission of all evidence unless irrelevant or superfluous, or leading to vexation, expense, or delay; and the means being legislative sanctions to make evidence “forthcoming” and non-mendacious, and to provide instructions to judges concerning the value and weight of various kinds of evidence. (William Twining, Theories of Evidence: Bentham and Wigmore [Stanford: Stanford University Press, 1985], 27-8.)
[35 ]For the background and composition of Mill’s Logic, see the Textual Introduction to System of Logic, Vols. VII-VIII of CW (Toronto: University of Toronto Press, 1973), VII.
[36 ]To John Sterling (20-22 Oct., 1831), EL, CW, XII, 79.
[37 ]John Henry Wigmore, the leading U.S. writer on evidence, used as an epigraph for his Principles of Judicial Proof a passage from Israel Zangwill’s The Big Bow Mystery, which includes the comment that evidence is “the science of the sciences. What is the whole of inductive logic, as laid down (say) by Bacon and Mill, but an attempt to apprise the value of evidence. . . . ” William Twining agrees so fully as to use the same passage as one of the epigraphs to his Theories of Evidence.
[38 ]See esp. Bk. III, Chap. xxv (CW, VII, 622-38), where the same passage in Hume’s “Of Miracles” is cited, and the anecdote about the King of Siam’s disbelief in ice is repeated.
[39 ]Bentham and Bureaucracy (Cambridge: Cambridge University Press, 1981), 166.
[40 ]Rationale, V, 1. Cf. “Evidence is the basis of justice: exclude evidence, you exclude justice” (ibid., Pt. III, Chap. i).
[41 ]See John M. Robson, “John Stuart Mill and Jeremy Bentham, with Some Observations on James Mill,” in Essays Presented to A.S.P. Woodhouse, ed. M. MacLure and F. W. Watt (Toronto: University of Toronto Press, 1964), 245-68.
[42 ]LL, CW, XVII, 1558 (8 Feb., 1869). In a letter of 22 Sept., 1865, to Arthur John Williams, a law student, Mill says: “I am very desirous of promoting the abolition of the remaining exclusions of evidence, and will certainly support in Parliament any movement for that purpose” (Ms, College of Law, Nihon University, Tokyo; to appear in Additional Letters, ed. Marion Filipiuk, Michael Laine, and John M. Robson, CW, XXXII).
[43 ]Autobiography, CW, I, 91. For a discussion of these debts, see Ann P. Robson’s introduction to the Newspaper Writings, Vols. XXII-XXV of CW (Toronto: University of Toronto Press, 1986), XXII, esp. xxxv-xxxviii.
[44 ]From the terms of Mill’s mandate, one would anticipate (and the Edinburgh’s reviewer would presumably have enjoyed) more quotation from authorities, as at 22 and 47.
[45 ]“Bentham’s Writings on Evidence,” 36, 37.
[46 ]Those who are in frequent contact with bright eighteen-year-olds might wish to consider the likely difficulties if one of them were asked to think carefully about the exclusion of various kinds of legal evidence, read the prevailing authorities, and then write a chapter like “Of the Rule, That Evidence Is to Be Confined to the Points in Issue” (84-90 below) that would not only deal with the questions, but do so in accordance with the conclusions of someone else’s argument and in that person’s manner and tone. In Mill’s case, a grade of A+ would seem insulting.
[47 ]Compare the relevant instances of James Mill’s and J.S. Mill’s lengthy attacks on the Edinburgh in the Westminster Review in 1824 (the latter, with references to the former, is in CW, I, 291-325), or Macaulay’s well-known vigorous demolitions of the Utilitarians in the Edinburgh (XLIX [Mar. 1829], 159-89; ibid. [June 1829], 273-99; and L [Oct. 1829], 99-125).