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Here, again, our author has confounded the German adverb nahe (nigh, near) with the preposition nach, (after) which meaning it has not only in composition, but as a preposition, in itself. The word nachbar, was, perhaps, originally spelled nahbar, and thence the literal English translation neighbour. The Russian na is a preposition, and signifies upon, above, but the preposition after, is expresssed in Russian by the prepositions poslee and za.
The n, in the Shemitic language, has no other signification when prefixed (as in the future tense) or suffixed (as in the præterite tense) to verbs, but we, and is nothing but an abbreviation of the pronoun anu, (we.)
Really, to review the whole Introduction of our author in detail, would take a great many more pages than could be appropriated to this article. We are, moreover, afraid of tiring the patience of our readers, especially as our own gave out some time since. We, therefore, think it time to pause, and we may enter more into detail at some future opportunity.
Art. V.-Rationale of Judicial Evidence specially applied to
English Practice. From the Manuscripts of JEREMY BEN-
This is an extension of the Traité des preuves judiciaires, compiled by M. Dumont in 1823, from the notes of Mr. Bentham. M. Dumont, with great propriety, left out of his book. all Mr. Bentham's applications to the English system of Law and of Practice. In the present edition, those applications and illustrations have been preserved and enlarged.
We could have wished the present editor had translated the work out of the obscure, involuted, Benthamee dialect in which it is written. A book, more disgustingly affected, and so nearly unintelligible, it is not possible to produce in the English language, with the exception of some of Mr. Bentham's former works, which equally exhibit specimens of what may, by the courtesy due to Mr. Bentham, be called English, but on no other score. Frequently, we have hunted with great care for some new and profound thought involved in a page of this mysterious dialect, and found only common-place notions arranged
with pompous, needless accuracy.* Frequently, we have laboured on with tedious expectation that has, at length, been well rewarded, by the truth, the novelty, and the importance of Mr.
* Take the following as a specimen of Mr. Bentham's language and mode of treating a subject :-"Facts at large, whether considered as principal or as eviden. tiary, may be divided into classes, according to several different modes of division.
"If, ou the occasion of judicial procedure in general, and the evidence elicited for the purpose of it, no practical benefit were derivable from the considering facts in this point of view, and under these distinctions, the mention of them would not have found its place in this work. But the conception entertained respecting the nature of the facts, in relation to which evidence will come to be elicited, and the nature of the evidence so applied, and the application made of it, would, without close attention to these distinctions, be inadequate, and, in practice, delusive.
“ Applying, as they will be seen to do, to every part of the field of thought and action, including that of art and science, the instruction, if any, which may be found derivable from them, will not be the less useful in practice.
“ Applying, as they will be seen to do, to judicial procedure, sometimes directly, sometimes through the medium of the correspondent substantive branch of law; the utility of the mention here made of them, will not be diminished by any appli. cation which may be capable ot being made of it to any other portion of the field of art and science.
“I. Distinction the first. --Facts physical, facts psychological.
“ The source of the division here is, the sort of beings in which the fact is considered as having its seat.
“A physical fact is a fact considered to have its seat in some inanimate being; or, if in an animate being, by virtue not of the qualities by which it is constituted animate, but of those which it has in common with the class of inanimate beings.
"A psychological fact is a fact considered to have its seat in some animate being; and that, by virtue of the qualities by which it is constituted animate.
“ Thus, motion, considered simply as such, when predicated of any being, is a physical fact; true, it is an attribute of animate beings, but not in virtue of those qualities which constitute them animate, since it is equally an attribute of inani.
“ But if, to the word motion, we add the word voluntary, we then introduce, over and above the physical fact of the motion, another fact, viz. an esertion of the will, considered as preceding and causing the motion. This last fact is a psychological fact; since it is not capable of having its seat in any other than animate beings; nor in them, by virtue of any other qualities, than those by which they are considered animate.
“Of these two simple facts-one a physical, the other a psychological fact-is composed the complex fact, voluntary motion ; a fact of a mixed character, partly physical, partly psychological.
- The classification and arrangement of physical facts must be left to natural philosopbers. The classification and arrangement of psychological facts must, in like manner, be left to metaphysicians. It may not be improper, however, to give in this place, a short indication of some of the principal classes of psychological facts.
"1. Sensations.-Feelings having their seat in some one or more of the five senses; sight, hearing, smell, taste and touch.
" Sensations again may be subdivided into those which are pleasurable, those which are painful, and those wbich, not being attended with any considerable de gree of pleasure or pain, may be called indifferent.
“2. Recollections: the recollections or remembrances of past sensations.
“3. Judgments: that sort of psychological fact which has place when we are said to assent to, or dissent from a proposition.
“4. Desires: which, when to a certain degree strong, are termed passions. “5. Volitions, or acts of the will, &c.
“ II Distinction the second.-Events and states of things. Source of the division in this case, the distinction between a state of motion and a state of rest.
“By a fact is meant the existence of a portion of matter inanimate or animate, either in a state of motion, or in a state of rest.
Bentham's positions. Indeed, we have toiled through the five volumes, with frequent lamentations at the labour they required; but having so done, we can safely aver, that no book has so
“Take any two objects whatever, consider them at any two successive points of time; they have, during these two portions of time, been either at rest with relation to each other, or one of them has, with relation to the other, been in motion; has, in the course of that length of time, changed its place.
“The truth is, that as far as we are able to judge, all portions of matter, great and small together, are at all times in motion : for in this case is the orb on which we exist, and as far as we can judge, all others which come under the cognizance of our
When, therefore, in speaking of any portion of matter, rest is attributed to it, the rest ascribed to it, cannot be understood in any other sense than a relative
“Whether they or one of them, be in motion, or whether both of them be at rest, any two portions of matter may be considered, and spoken of, in relation to one another; and in this case, the most obvious and simple relation, is the relation of distance.
“ Thus it is then, that considered in the most simple state in wbich it can be a subject or object of consideration, a fact may be either a state of things or a motion, and under one or other of these descriptions it cannot but come.
“ By an event is meant some motion, considered as having actually come about, in the course of nature. Thus, whatever be the occasion, the ordinary subjects of consideration and discourse come under the general denomination of states of things, or events, or both.
“ The fall of a tree is an event, the existence of the tree is a state of things; both are alike facts.
* An act or action is a name given to an event in so far as it comes to be consid. ered as having had the human will for the immediate cause of it.
“A fact then, or a matter of fact, is either the existence of two or more beings. considered in relation to one another, as being in a state of rest during successive portions of time, or an event; in the idea of which event is uniformly included that of motion on the part of some portion of matter, i. e. a change in its relative position to, and distance from, some other portion of matter.
“ An act or action, a human act, a human action, is either external or purely internal. In the instance of an external act, there must of necessity be something of complication; for to the external action of the body, or some part of it, must have been added an antecedent act of the will; an internal act, but for which it would have been on the footing of those motions which are exhibited by the unanimated, and even by the unorganized ingredients the composition of such parts of the world as are perceptible to us.
“ An internal act may, on the other hand, be of the simplest kind, unattended by any motion on the part of any portion of matter exterior to the individual whose act it is.
“It being understood that it is to the mind that it is ascribed and attributed, the term motion may still be employed in the designation of it, although in what happens in the mind upon the occasion in question. no change of place can be observed: for, in speaking of what passes in the mind, we must be content, for the most part, to employ the same language as that which we employ in speaking of what passes in and about the body, or we could not in any way make it the subject of discourse.
“ III. Distinction the third.-Facts positive and negative.
“ In this may be seen a distinction which belongs not, as in the former case, te the nature of the facts themselves, but to that of the discourse which we are under the necessity of employing in speaking of them.
“In the existence of this or that state of things, designated by a certain denomination, we have a positive, or say, an affirmative fact; in the non-existence of it, a negative fact.
But the non-existence of a negative fact is equivalent to the existence of the correspondent and opposite positive fact, and unless this sort of relation be well noted and remembered, great is the confusion that may be the consequence.
often unsettled our long-cherished opinions, or convinced us more thoroughly than this, that the author understood his subject much better than we did on our first sitting down to the perusal. To an Englishman, it is, indeed, a most important publication : exhibiting in strong light, the manifold abuses of the principles and practice of English jurisprudence, and the dreadful curse the whole system of English law really is, in a national point of view. It proves this position with the most unsparing vituperation—in language of abuse unmeasured indeed, but, in our opinion, too often deserved: it attacks, and with a harshness that we cannot approve, the motives of men whom we have been accustomed to think of with high respect; nor will it be easy to justify all the sweeping, indiscriminate accusation he has employed, notwithstanding his concession that the blame attaches to the system rather than to the persons : but we have risen from the perusal of the work, with a perfect conviction that the English system of Common Law and of Equity, is not the “perfection of reason,” but needs the most radical, thoroughgoing reform. That it is a system of fraud, falsehood, absurdity, pretension, and deception, impossible to be defended honestly ; and utterly undeserving the usual style of common-place panegyric applied to it by its ignorant or interested admirers. A thoroughbred common-law lawyer, whose maxim is, neminem oportet esse legibus sapientiorem, may abuse reform, may sneer at codification, may deny the possibility of converting judicial
“The only really existing facts are positive facts; a negative fact is the non-existence of a positive one, and nothing more ; though, in many instances, according to the mode of expression commonly employed in the speaking of it, the real nature of it is disguised. Thus, by health, is meant nothing inore than the absence, the non-existence of disease; by minurity, the individual's non-arrival at a certain age; by darkness, the absence of light; and so on.
" For satisfying himself whether in the case of a certain fact, it is the existence or the non-existence, the presence or the absence of it, the course a man may take, is to figure to himself the corresponding image; he will then perceive whether, by the expression in question it is the presence or the absence of that same image, that is indicated, and brought to view."
This is, indeed, following to a letter the advice of the Frenchman : Enfin mon ami, il faut tonjours commencer par le commencement.
One other passage of mystification and we have done.–V. 4. p. 256. “Idea of a system of pleading adapted to the ends of justice.”
" He who has a right to any subject of property-immoveable or moveable, sum of money to be paid him by some one else, service of any other sort to be render ed by a determinate individual—is he in whose favour some one in the list of events or states of things, having, with reference to that right, the effect of collatire (or say investitive) events or states of things, has taken place: ao article in the list of those to which with reference to the same right, the law has given the effect of ablative (or say divestitive) events or states of things, having subsequently takes place in his case.”
Mr. Bentham complains with equal justice and severity of the language of the English law, the system of jargonizing, as he calls it. If such specimens as we have presented, do not fall under the head of mystification or jargonizing, we are wonderfully mistaken.
into statutory law : we attempt no impossibilities; we deem it hopeless to make any attack on such impracticable understandings: we hold up Bentham's volumes in our hands, and we appeal to the PUBLIC, in full confidence of the result.
Much light has been thrown on the defects of this system, by Mr. Ensor, Sir S. Romilly, Mr. Brougham, Mr. Peele, by the Parliamentary commissioners, and, more than all, by Mr. Humphreys, and Mr. Parkes, the editor of the Jurist. But their
proposals, well-meant as they are, extend so partially-their reforms are so inadequate to the abuses of the system--their dread of the influence of the profession, of popular prejudice, of the imputation of rashness and radicalism—the cant terms of reproach applied to all proposals of effectualamendment—the fashionable demand for gradual reformation and moderation; all together, convert their expositions, however well-meant, into the blows of imbecility; tela imbella sine ictu : to be convinced how applicable to the system are the epithets we have applied to it, this work of Mr. Bentham's must be read, or rather studied; for without close attention, it will not be understood : and for this purpose, in particular, we recommend the fourth volume in toto. The design of the book is, to show much at length, and much in detail.
1. That in judiciary investigations, no kind of evidence whatever, capable of throwing light on the question agitated, ought to be rejected, unless its exclusion can be justified by avoiding vexation, expense or delay; amounting, if incurred, to a preponderant evil.
2. To point out the best means of securing the truth of evidence.
3. To point out the best means of judging of the value of evidence.
Hence it appears, that Mr. Bentham would annihilate at once, all objections to the competence or admissibility of a witness, and class them under objections to credibility: varying according to the circumstances under which the objectionable testimony is delivered.
As to the first point, he observes
1. That the rules of evidence, under the legal system of England, are repugnant to the ends of justice.
2. That they are inconsistent with themselves : not a rule but what is violated by a multitude of exceptions or counter rules; which are observed in cases in which the reason of the rule so violated, applies with as much force, as the cases where it is observed. VOL. V.--N0. 10.