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• Errata—vol. VI. *
• An Introductory View of the Rationale of Evidence; For the Use of Non-lawyers As Well As Lawyers.
• Chapter I.: Title-page Justified.
• Chapter II.: Relation of Law to Happiness—of Procedure to the Main Body of the Law—of Evidence to Procedure.
• Chapter III.: Ends of Justice On the Occasion of Judicature. *
• Chapter IV.: Duties of the Legislator In Relation to Evidence.
• Chapter V.: Probative Force—whence Measured—how Increased—how Diminished.
• Chapter VI.: Degrees of Persuasion—thence of Probative Force—how Expressible.
• Chapter VII.: Causes of Trustworthiness and Untrustworthiness In Testimony—thence of Belief and Unbelief.
• Chapter VIII.: Of the Securities For Trustworthiness In Evidence.
• Chapter IX: False Securities For Trustworthiness In Evidence—oaths and Exclusions.
• Chapter X.: Of the Reception and Extraction of Evidence, Viz. With the Help of the Above Securities.
• Chapter XI.: Collection of Evidence—english Practice.
• Chapter XII.: Of Circumstantial Evidence.
• Chapter XIII.: Of Make-shift Evidence.
• Chapter XIV.: Of Preappointed Evidence.
• Chapter XV.: Difference Between Preappointed and Unpreappointed Evidence.
• Chapter XVI.: Preappointed Official Evidence.
• Chapter XVII.: Extempore Recordation, How Applicable to Legally Operative Facts At Large.
• Chapter XVIII.: Of Derivative, Including Transcriptious, Recordation, Wherein of Registration.
• Chapter XIX.: Exclusion of Evidence.—general Considerations.
• Chapter XX.: Exclusion Continued—causes For Which It Is Proper Or Not, According to Circumstances.
• Chapter XXI.: Exclusion Continued—causes For Which It Cannot Be Proper.
• Chapter XXII.: Exclusions By English and Other Laws—analytic and Synoptic Sketches.
• Chapter XXIII.: Safeguards Against Suspicious Evidence: Including Instructions Concerning the Weighing of Evidence.
• Chapter XXIV.: Authentication and Deauthentication, As Applied to Preappointed and Other Written Evidence.
• Chapter XXV.: Exclusion and Nullification Applied to Contractual Matter, In So Far As Writing Has Been Omitted to Be Employed In Giving Expression to It.
• Chapter XXVI.: Of the Exclusion and Nullification of Contractual Matter, Informally Though Scriptitiously Expressed, In a Transaction Which Has Been the Subject of Matter Formally Expressed.
• Chapter XXVII.: Imprisonment For Debt:—disguised Exclusion of Evidence Involved In It.
• Chapter XXVIII.: Of the Burthen of Proof: On Whom Shall It Lie?— (a Question Produced By Undue Exclusion of Evidence.)
• Chapter XXIX.: Evidence Considered In Its Relation to This Or That Fact In Particular—why Discarded From This Work.
• Chapter XXX.: Evidence In Relation to Particular Facts and Pleadings Under Technical Procldure.
• Chapter XXXI.: False Theory of Evidence (gilbert’s * )—its Foundation:—precedence Given to Written Before Unwritten.
• Chapter XXXII.: Liberalists and Rigorists—parties Belligerent In the Field of Jurisprudence, and In Particular of Evidence.
• Chapter XXXIII.: Conclusion.
• Appendix A.: Cautionary Instructions Respecting Evidence, For the Use of Judges.
• Chapter I.: Propriety of Cautionary Instructions, In Preference to Unbending Rules.
• Chapter II.: Considerations Proper to Be Borne In Mind In Judging of the Weight of Evidence.
• Chapter III.: Considerations Respecting the Effects of Interest In General Upon Evidence.
• Chapter IV.: Considerations Respecting the Effect of Pecuniary Interest Upon Evidence.
• Chapter V.: Situations.
• Chapter VI.: Makeshift Evidence.
• Chapter VII.: Scale of Trustworthiness.
• Chapter VIII.: Best Evidence, What?
• Chapter IX.: English Law Scale of Trustworthiness.
• Appendix B.: of Imprisonment For Debt.
• Section I.: Its Inaptitude As an Instrument of Compulsion.
• Section II.: Its Inaptitude, Applied As It Is As an Instrument of Punishment.
• Section III.: Its Needlessness Demonstrated By Experience.
• Section IV.: End, Or Final Cause of the Institution—judge and Co.’s Sinister Interest.
• Section V.: Means Employed—mendacity and Usurpation.
• Section VI.: Affidavit Previous to Arrest, Its Unfitness.
• Section VII.: Consequence of the Exclusion Thus Put Upon Evidence.
• Section VIII.: Advocates For the Abolition of Imprisonment For Debt—their Errors.
• Section IX.: Scotch Law—cessio Bonorum, Its Inadequacy.
• Section X.: Agenda—course Proper to Be Taken On the Occasion of Insolvency.
• Appendix C.: False Theory of Evidence—(gilbert’s.)
• Rationale of Judicial Evidence, Specially Applied to English Practice. From the Manuscripts of Jeremy Bentham, Bencher of Lincoln’s Inn.
• Preface.
• Prospective View.
• Book I.: —theoretic Grounds.
• Chapter I.: On Evidence In General.
• Chapter II.: Of Evidence Considered With Reference to a Legal Purpose; and of the Duties of the Legislator In Relation to Evidence.
• Chapter III.: Of Facts—the Subject-matter of Evidence.
• Chapter IV.: Of the Several Species Or Modifications of Evidence.
• Chapter V.: Of the Probative Force of Evidence.
• Chapter VI.: Degrees of Persuasion and Probative Force, How Measured.
• Chapter VII.: Of the Foundation Or Cause of Belief In Testimony.
• Chapter VIII.: Modes of Incorrectness In Testimony.
• Chapter IX.: General View of the Psychological Causes of Correctness and Completeness, With Their Contraries, Incorrectness and Incompleteness, In Testimony.
• Chapter X.: Of the Intellectual Causes of Correctness and Completeness In Testimony, With Their Opposites.
• Chapter XI.: Of the Moral Causes of Correctness and Completeness In Testimony, With Their Opposites.
• Chapter XII.: Ground of Persuasion In the Case of the Judge—can Decision On His Own Knowledge, Without Evidence From External Sources, Be Well Grounded?
• Book II.: —on the Securities For the Trustworthiness of Testimony.
• Chapter I.: Object of the Present Book.
• Chapter II.: Dangers to Be Guarded Against, In Regard to Testimony, By the Arrangements Suggested In This Book.
• Chapter III.: Internal and External Securities For the Trustworthiness of Testimony Enumerated.
• Chapter IV.: On the Internal Securities For Trustworthiness In Testimony.
• Chapter V.: Of Punishment, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VI.: Of the Ceremony of an Oath, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VII.: Of Shame, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VIII.: Of Writing, Considered As a Security For the Trustworthiness of Testimony.
• Chapter IX.: Of Interrogation, Considered As a Security For the Trustworthiness of Testimony.
• Chapter X.: Of Publicity and Privacy, As Applied to Judicature In General, and to the Collection of the Evidence In Particular.
• Additional Notes to Books I. & II. Chiefly With Reference to Alterations Made In the Law Since the Date of the First Edition,— Viz. 1827.
• Book III.: Of the Extraction of Testimonial Evidence.
• Chapter I.: Of the Oral Mode of Interrogation.
• Chapter II.: Notes, Whether Consultable?
• Chapter III.: Of Suggestive Interrogation.
• Chapter IV.: Of Discreditive Interrogation.
• Chapter V.: Of the Demeanour of the Adverse Interrogator to the Witness, Considered In Respect of Vexation.
• Chapter VI.: Of the Notation and Recordation of Testimony.
• Chapter VII.: That the Evidence Should Be Collected By the Same Person By Whom the Decision Is to Be Pronounced.
• Chapter VIII.: Five Modes of Interrogation Compared.
• Chapter IX.: Epistolary Mode of Interrogation, In What Cases Applicable.
• Chapter X.: Epistolary Mode of Interrogation, How to Apply It to the Best Advantage.
• Chapter XI.: Helps to Recollection, How Far Compatible With Obstructions to Invention?
• Chapter XII.: Of Re-examination, Repetition, Or Recolement.
• Chapter XIII.: Of Spontaneous Or Uninterrogated Testimony.
• Chapter XIV.: General View of the Incongruities of English Law In Respect of the Extraction of Evidence.
• Chapter XV.: Mode of Extraction In English Common-law Procedure—its Incongruities.
• Chapter XVI.: Mode of Extraction In English Equity Procedure—its Incongruities.
• Chapter XVII.: Mode of Extraction In English Ecclesiastical and Admiralty Courts—its Incongruities.
• Chapter XVIII.: Incongruities of Roman Law In Respect of the Extraction of Evidence.
• Chapter XIX.: Of Confrontation Under the Roman Law.
• Chapter XX.: Recapitulation.
• Book IV.: Of Preappointed Evidence.
• Chapter I.: Of Preappointed Evidence In General.
• Chapter II.: Of Instruments of Contract In General.
• Chapter III.: Of the Enforcement of Formalities In the Case of Contracts.
• Chapter IV.: Formalities, What Proper, and In What Cases?
• Chapter V.: Of Wills, As Distinguished From Other Contracts.
• Chapter VI.: Of Preappointed Evidence, Considered As Applied to Laws.
• Chapter VII.: Of Public Offices At Large, Considered As Repositories and Sources of Preappointed Evidence. *
• Chapter VIII.: Of Official Evidence, As Furnished By Judicial Offices.
• Chapter IX.: Of Preappointed Evidence, Considered As Applied to Legally-operative Facts At Large.
• Chapter X.: Of the Registration of Genealogical Facts, Viz. Deaths, Births, and Marriages.
• Chapter XI.: Of Offices For Conservation of Transcripts of Contracts. *
• Chapter XII.: Of the Principle of Preappointed Evidence As Exemplified In the Case of Real Evidence (evidence From Things.)

CHAPTER I.

TITLE-PAGE JUSTIFIED.

§ 1.

Persons for whose use—Non-Lawyers as well as Lawyers.

The extent—the almost boundless expanse of the subject,—the variety of the matters touched upon,—the novelty of the points of view in which many—perhaps most of them—not to say all of them, will be found presented,—the unavoidably consequent novelty of not a few of the terms which it had been found necessary to employ,—all these things considered, it seemed to the author, that a general, and, how slightly soever, yet all-embracing outline, abstracted, and, like “a panorama explanation,” detached from the work at large, for the purpose of preparing the eye for the contents of the more fully-delineated scene, might not be without its use.

Should this be among the instances in which the Greek adage concerning books is destined to find its exemplification, the lighter burthen may at any rate do service, by saving the hand which takes it up, from the heavier load which is yet to come.

The field of evidence is no other than the field of knowledge. On that field, the researches, the result of which form the matter of the present work, extend not, it is true, beyond the case in which evidence is capable of being operative to a legal purpose. But forasmuch as on the whole field of human knowledge there is scarcely a conceivable spot from which evidence may not on one account or another be called for to a legal purpose* —hence it is, that, in effect, the portion cut off from the field of research by this limitation, will be found to be neither very considerable, nor altogether determinate.

Proportioned to the extent of that field will be the number of persons, to whom, in the character of readers, independently of any such misfortune as that of feeling themselves stretched on the rack in the character of litigants, it may happen to find in the work, matter on some account or other not altogether devoid of interest: and in proportion as this supposition comes to be realized, a justification will be afforded to the words, by which, in the title-page, non-lawyers are spoken of as persons to whose use, as well as that of lawyers, it may be found applicable.

§ 2.

Rationale—propriety of the appellative.

The justification of the clause, “for the use of non-lawyers,” having been thus attempted, the word rationale, in the clause “rationale of evidence,” remains to be justified.

To whomsoever, with other than a professional eye, it can have happened to take up a book on the subject of evidence, be the book what it may, it can scarcely have been long, before he saw more or less reason to suspect that in the formation of the mass of rules of which he found it composed, the share taken by that faculty, which, when applied to other subjects, goes by the name of reason, must have been small indeed. Towards any determinate end, good or bad, unless it were the increase of power and profit to the framers—scarcely any symptom of regard: arbitrary will—disguised, or not disguised, by this or that technical figure of speech, the sole, as well as the ever active efficient cause of everything that has been done:—such is the spectacle that will have presented itself to his view.

In matters of law—in matters of legislation at least—reason is an instrument by which means are employed and directed to the attainment of an end. Of legislation the proper end may, it is hoped, without much presumption, be stated as being,—not but there are those who will deny it,—in every community, the creation and preservation of the greatest happiness to the greatest number—or, in one word, happiness: a false end, the creation and preservation of the greatest quantity of happiness to a few, to the prejudice, and in diminution of the happiness of the greatest number:—to a few, and those few naturally and usually the possessors of the several powers of government, with their official subordinates, and their other associates and connexions:—and this, in proportion as the machinery of government is looked into, will almost everywhere be seen to be the end, principally at least, if not exclusively, aimed at and pursued.

As to the faculty called will, its act, volition, has on each occasion, for its causes, interests, acting in the character of motives. In what way these springs of action, with as little assistance as perhaps in any instance was ever received or looked for from the faculty of reason, give existence everywhere to the law of evidence, and more particularly to the law of English evidence, is among those questions, the answers to which will in some shape or other, it is supposed, be found as occasion serves, presenting themselves to the reader in his progress through the work.

Knowledge of the proper remedies is seldom to be obtained without knowledge of the mischief;—for the purpose of remedy, knowledge of the effect is seldom sufficient without knowledge of the cause.

To the non-lawyer, or as in lawyers’ language he is called, the unlearned reader, not only in respect of perspicuity, but in respect of that sort of satisfaction which is afforded by the observation of practical use, under each head, a delineation more or less particular, of the state of the law as it is, would naturally have been in no small degree acceptable;* but with the design of the present sketch, any such illustration would have been altogether incompatible. If the contents of two large quartos could have been compressed into three or four hundred octavo pages, doubtless so much the better; but if they could, the difference would have been so much surplusage. What has all along been within the bounds of possibility, at least whether within or not within the bounds of the author’s ability, has been to excite curiosity: what could only here and there be so much as attempted, has been in some degree to satisfy it.

Remedy supposes mischief. Rules are seldom laid down, but with a view more or less distinct to antecedent transgressions: and, not only upon the rules that will here be seen suggested, but upon the state of the law which during the framing of them was in view, the observation may, for the use of the unlearned reader, afford some light. Accordingly, as often as upon the view of this or that suggestion, the propriety of it may happen to present itself, as being so completely obvious and indisputable as to reflect upon it the imputation of nugatoriness and uselessness, the danger of error will not be great, if his conclusion be—that this dictate of the plainest common-sense stands, in a great part, if not in the whole of its extent, contravened by the practice of English judges.

Thus, if in what ought to be done, a man reads what has not been done, and in what ought not to be done, what has been done, the text itself, may, with the assistance of this short hint, perform the office of a comment.

Should any such question be asked, as how it can have happened that, in the sight of the legislator, in almost everything they did, men thus called, and thus chosen, kept doing that which was evil, the answer, true or not true, will at least be found simple and intelligible. What they did was evil, because to do otherwise than evil, both will and ability were always wanting: will was wanting, because interest was wanting: ability was wanting, because will was.

Of this opposition between what might seem duty on the one hand, and interest coupled with power on the other, the causes, as well as the existence, have been shown already in another work: and to everything that, in the course of the present pages, will be seen indicated in relation to established practice, these observations, short as they are, may afford a clue.

Thus, and thus alone, may be accounted for,—accounted for in crowds,—phenomena which otherwise would have been plainly unaccountable.

When thistles only are sown, grapes ought not to be expected.

As in every other part of the field, so in this:—of that rule of action, on the state of which, everything that is valuable to man is in so high a degree dependent, very different is the representation that would assuredly have been most agreeable to the feelings of the generality of those who live under it, and of none in a higher degree than of him, on whom the task of giving the picture, which is here given of it, has devolved. Unfortunately, by certificates of health, neither in the body natural, nor yet in the body politic, are disorders to be cured.

By means of the relation, the all-regulating relation, constantly and comprehensively kept in view; viz. the relation of means to end, the aim has all along been to give to the branch of legislation here in question the form of an art, and in respect of comprehensiveness as well as precision, the form (but if possible without the repulsiveness) of a science.

[* ]Examples of cases, in which facts, that to a first view might not seem of a nature to come under legal cognizance, have been taken, or may at any time be taken, for the subjects of legally delivered evidence: 1. On the occasion of a dispute concerning the value of things, or of the services of persons employed in the character of instruments, facts belonging to any branch of art, or even of science.

2. Facts relative to the authorship of inventions, the commercial benefit of which has for a time been legally secured to the inventor by a patent,

3. By means of a wager, the existence, actual or even probable, of any supposed matter of fact whatever, actual or conceivable, may, if desirable, be taken for the subject of legally delivered evidence.

[* ]For the instruction, of the non-lawyer, including the law-student, if any such there be, who being engaged in the study of law as it is, has nerves to endure a sight, or so much as a prospect, so unwelcome as that of law as it ought to be—in other words, who, his prosperity depending upon the depravity of the system, can endure the contemplation of anything tending to a cure, I would venture to recommend the perusal paripassu of Peake’s compendium of the law of evidence.