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The Background to Bentham on Evidence*

Published online by Cambridge University Press:  26 January 2009

A. D. E. Lewis
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Extract

The path of those who would approach the study of Bentham's writings on Evidence has been considerably smoothed by the recent publication of William Twining's work on the evidence theories of Bentham and Wigmore. The material on evidence is now being tackled by the Bentham Project. It presents no easy task. The central core, The Rationale of Judicial Evidence, edited and published by John Stuart Mill in 1827, exists only in the printed version, the MSS from which Mill worked having disappeared. But a substantial body of related material which survives has yet to be thoroughly investigated, though William Twining has made a gallant start. A new edition of the work hitherto known as ‘An Introductory View of the Rationale of Evidence’, first printed in full in the Bowring edition of the Works of Jeremy Bentham is in preparation. The first fruits of this endeavour is that the title of that work as it should appear in due course in the new Collected Works will be Introduction to the Rationale of Evidence: An Introductory View for the Use of Lawyers as well as Non-lawyers, the title in fact given to the work by Bentham. It is intended that what follows should similarly be of use to non-lawyers as well as lawyers.

Type
Research Article
Information
Utilitas , Volume 2 , Issue 2 , November 1990 , pp. 195 - 219
Copyright
Copyright © Cambridge University Press 1990

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Footnotes

*

The first section of this paper remains largely in the form in which it was delivered at the International Bentham Society Conference at University College London held in 1986. The second section was presented to a Bentham seminar at UCL under the auspices of the Bentham Project in 1989. My thanks go to the Director of the Project, Professor Fred Rosen, and the members of the Project for assistance, encouragement and the provision of a lively working environment. It will be obvious that much that is right about this paper owes its rectitude to the work of Professor William Twining, who first encouraged me to take up this study.

References

1 Twining, W. L., Theories of Evidence: Bentham and Wigmore, London, 1985.Google Scholar

2 Bentham, J., The Rationale of Judicial Evidence, ed. Mill, J. S., 5 vols., London, 1827Google Scholar; The Works of Jeremy Bentham, ed. Bowring, John, 11 vols., Edinburgh, 1843, vi. 189–585 and vii. 1–600.Google Scholar

3 See Twining, , p. 189.Google Scholar

4 Bowring, , vi. 1–187.Google Scholar

5 This neglect is carried into modern works also but see Manchester, A. H., Modern Legal History, London, 1980, p. 111Google Scholar. A contemporary account is the classic study of the civil jurisdiction in Birmingham by its judge Hutton, William, Courts of Requests, Birmingham, 1787Google Scholar, which was known to Bentham, who does take this level of judicature into account in his more political writings, for example, in Constitutional Code.

6 The most important modern study here is that by Milsom, S. F. C., Historical Foundations of the Common Law, 2nd edition, London, 1981.Google Scholar

7 Thayer, J. B., A Preliminary Treatise on Evidence at Common Law, Boston, 1898.Google Scholar

8 See, in addition to Thayer, most recently Bartlett, R., Trial by Fire and Water, Oxford, 1986.Google Scholar

9 A contemporary account is provided by the treatises known comprehensively as Placito Corone. A modern edition by Kaye, J. M. is published in the Selden Society Supplementary series, no. 4, London, 1966Google Scholar. The transition from presenting to trial jury is studied by Groot, R., ‘The Early Thirteenth Century Criminal Jury’, Twelve Men Good and True, ed. Cockburn, J. S. and Green, T. A., Princeton, 1988Google Scholar. Still useful is Maitland, F. W., ed., The Pleas of the Crown for the county of Gloucester, 1221, London, 1884, p. xxxviii.Google Scholar

10 25 Edw. III (session v), c. 3. For the various types of jury and assize see the brief survey in Baker, J. H., An Introduction to English Legal History, 2nd edition, London, 1979, p. 414f.Google Scholar

11 Bushell's Case (1670)Google Scholar, Vaughan 135 and see Green, T. A., Verdict according to Conscience, Chicago, 1985, p. 200.CrossRefGoogle Scholar

12 As a statute of 1360 put it, jurors should be selected from the neighbourhood and not from amongst those outside the county ‘which have no knowledge of the deed’: 34 Ed. III, c. 4.

13 The following analysis is heavily indebted to the account in Milsom, , p. 45f.Google Scholar

14 See further, Milsom, , p. 255.Google Scholar

15 This, the standard method of trial of civil cases outside London, was for long known as the Nisi Prius system from the statutory provision that juries were to present themselves with their verdicts at Westminster on a certain day unless before (nisi prius) they received a visit from a travelling judge: Statute of Westminster II, 13 Ed. I (1285), c. 30.

16 On the mechanisms developed for attacking and avoiding jury verdicts see Baker, , pp. 73 and 116fGoogle Scholar. and the same author's edition of Spelman's Reports, vol. ii (Selden Society vol. 94 for 1977), London, 1978. pp. 92f. and 116f.Google Scholar

17 Published in Bowring, , vi. 1Google Scholar in an edited form, incorporating the text of the first printing, as ‘An Introduction to the Rationale of Evidence’.

18 This preface is to be found in Bentham MSS UC xlv. 840–7Google Scholar, University College London. All unascribed quotations from Bentham in what follows are from this unpublished preface.

19 Bowring, , vi. 189–585 and vii. 1–600.Google Scholar

20 Both works, London, 1801.

21 Bentham, to Dumont, , 11 07 1809Google Scholar, The Correspondence of Jeremy Bentham, vol. viii, ed. Conway, Stephen, Oxford, 1988 (The Collected Works of Jeremy Bentham), p. 36.Google Scholar

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23 Bentham, to Dumont, , 11 07 1809Google Scholar, Correspondence (CW), viii. 36.Google Scholar

24 Paris, 1823.

25 Mill, James to Bentham, , 26 10 1809Google Scholar, Correspondence (CW), viii. 47–8Google Scholar; 31 October 1809, viii. 49; 6 December 1809, viii. 57–8.

26 Correspondence (CW), viii. 58.Google Scholar

27 Twining, , pp. 188, 245.Google Scholar

28 Elements of the Art of Packing, London, 1821Google Scholar; Bowring, , v. 61f.Google Scholar

29 Mill, to Bentham, , 25 07 1809Google Scholar, Correspondence (CW), viii. 37.Google Scholar

30 This appears from his letter to Bentham, , 6 12 1809Google Scholar, Correspondence (CW), viii. 57–8.Google Scholar

31 Bentham, to Place, , 6 12 1818Google Scholar, The Correspondence of Jeremy Bentham, vol ix, ed. Conway, Stephen, Oxford, 1989 (CW), pp. 293–4.Google Scholar

32 Romilly, to Bentham, , 31 01 1810Google Scholar, Correspondence (CW), viii. 60Google Scholar. Sir Vicary Gibbs was Attorney-General and as such responsible for prosecuting cases of seditious libel.

33 Cf. above nn. 24 and 40.

34 Dinwiddy, J. R., ‘Bentham's transition to political radicalism, 1809–10’, Journal of the History of Ideas, xxxvi (1975), 683.CrossRefGoogle Scholar

35 The manuscripts survive for all but a few sheets at the beginning of chapter 12, section 11 and are dated between November 1811 and September 1812: UC xlv. 8fGoogle Scholar. and xlvii. 411–13.

36 UC xlv. 1Google Scholar. This copy is of 144 pages only and carries a manuscript note by Bentham: ‘This copy wants 4 pages which others have: namely 145 to 148.’

37 Parr, to Bentham, , 20 02 1823Google Scholar, Bowring, , x. 536.Google Scholar

38 ‘I have the tract which Mr B gave me in 1813 “Introduction to the rationale of Evidence” which I presume is the foundation of the present work.’ Letter to Dumont, , 07 16 1824Google Scholar, printed in Haeusermann, H. W., The Genevese Background, London, 1952, p. 118.Google Scholar

39 A note to this effect on a letter to Burr of 27 August 1812 almost certainly antedates the printing: Correspondence (CW), viii. 260.Google Scholar

40 Bentham, to Plumer, W. Jnr., 12 1818Google Scholar: Correspondence (CW), ix. 308.Google Scholar

41 In the Bowring, edition, vi. 1–187Google Scholar, this break occurs towards the bottom of the second column on p. 51 with the words ‘rights of juriesy’.

42 UC xlvii. 413.Google Scholar

43 UC xlv. 2Google Scholar. The Table reads curiously at this point. After chapter 12, section 10 comes chapter 13 as in the 1812 printing. But chapter 13 is headed, as in the manuscript continuation and Bowring, , ‘Of Makeshift Evidence’Google Scholar and the first section is appropriately ‘Unoriginal Makeshift Evidence’. At the end of the list of sections in chapter 13 comes an appended addition to those in chapter 12 namely sections 11 and 12. The puzzle is to know exactly what Bentham intended the printer to do at this point, given that he seems to have intended him to use the apparently existing plates of the 1812 printing. At the beginning of the 1823 preface he gives expense as one reason for not completely rewriting the whole work: ‘The sacrifice of so much as is already printed and has been for these ten years would be attended with no inconsiderable expence.’

44 UC xlvii. 411–13 and xlv. 8f.Google Scholar

45 Twining, , p. 187.Google Scholar

46 Bentham, J., ‘Swear Not At All’, London, 1817Google Scholar; Bowring, , v. 187Google Scholar. The title page indicates that the pamphlet is ‘Pre-detached from an Introduction to the “Rationale of Evidence”’.

47 Statute 52 Geo. III, c. 44.

48 Correspondence (CW), viii. 263–82.Google Scholar

49 UC xlv. 29.Google Scholar

50 UC xlvii. 216–413 and xlv. 8f.Google Scholar

51 See above n. 42.

52 Dumont, to Bentham, , 13 04 1818Google Scholar, Correspondence (CW), ix. 191–2Google Scholar; and 19 May 1818, ix. 208.

53 Plumer, to Bentham, , 2 10 1818Google Scholar, Correspondence (CW), ix. 277–8.Google Scholar

54 Bentham, to Plumer, , 12 1818 (sent 19 October 1819)Google Scholar, Correspondence (CW), ix. 308.Google Scholar

55 Bentham, to Plumer, , 17 10 1819Google Scholar, Correspondence (CW), ix. 360.Google Scholar

56 See above nn. 43 and 51.

57 Bentham, to Parr, , 17 02 1823Google Scholar, Johnstone, J., The Works of Samuel Parr, 8 vols., London, 1828, viii. 6.Google Scholar

58 The Book of Fallacies from the unfinished papers of Jeremy Bentham edited by a friend, London, 1824.Google Scholar

59 On Austin's character, particularly his tendency to leave projects incomplete, see , J. & Hamburger, L., Troubled Lives, Toronto, 1985, pp. 142–5, 178Google Scholar, and Lewis, A. D. E., ‘John Austin, Pupil of Bentham’, Bentham Newsletter, 2 (1979), 19Google Scholar. Cf. Dumont, to Bentham, , received 3 02 1825Google Scholar, UC x. 143Google Scholar: ‘Il a quelque monstre de perfection dans l'esprit d'apres lequel il ne pourra rien faire,…’

60 Austin, to Bentham, , 20 07 1819Google Scholar, Correspondence (CW), ix. 336–7.Google Scholar

61 Lewis, , at p. 23Google Scholar, text to note 56, referring to anomalous entries for 18 July 1827 in the diary for 1822–4, UC clxxiii. 62Google Scholar. In the text as there printed the words in italics were omitted: ‘There follows a list of matters some marked with a cross, possibly to indicate their having been accomplished, The fifth entry is “Austin's appointment” and is marked with a cross.’

62 Bentham, to Dumont, , 14 12 1824Google Scholar, Dumont MSS 74/46–9, Bibliothèque Publique et Universitaire, Geneva.

63 Dumont, to Bentham, , received 3 02 1825Google Scholar, UC x. 143.Google Scholar

64 London, 1825.

65 e.g. ‘… the theftuous bird…’, p. 148; ‘… proving it carelessly and, as it were, in the by going’, note p. 186; ‘Aye, but how?’ p. 209Google Scholar; ‘9. Maintenance and Aliment’, p. 299.Google Scholar

66 See, in particular, the critical remarks attributed to Tr. [anslator] on p. 239 and the (unattributed) outburst in the note on p. 336.

67 Any doubts on this score may be removed by perusing the translator's Preface, pp. v–vii.

68 The copy in the UCL Bentham Collection, press mark 2. T23, bears Bentham's signature on the title page.

69 See n. 62.

70 Writing to Dumont in 1823 Bentham praises his particularisation of the subject-matter in this way: ‘To add judiciaires was judicious: item to throw the Preuves into the background.’ Bentham, to Dumont, , 26 or 27 09 1823Google Scholar, Dumont MSS 169–70, Bibliothèque Publique et Universitaire, Geneva.

71 Writing to Mill, J. S. on 24 04 1827Google Scholar he says: ‘Your name is of far too great importance to the work to be omitted in the titlepage to it.’ John Stuart Mill papers, Yale University Library.

72 Editorial note to the Prospective View prefaced to Bentham, 's ‘Rationale’Google Scholar; Bowring, , vi. 203.Google Scholar

73 Wood, T., An Institute of the Laws of England…, 2 vols., [London], 1720Google Scholar. Blackstone, W., Commentaries on the Laws of England, 4 vols., Oxford, 1765–1769.Google Scholar

74 See above n. 16.

75 Sedgwick, James, ed., The Law of Evidence by Lord Chief Baron Gilbert, 6th edition, London, 1801, preface, p.[iii].Google Scholar