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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 II.

RELATION OF LAW TO HAPPINESS—OF PROCEDURE TO THE MAIN BODY OF THE LAW—OF EVIDENCE TO PROCEDURE.

§ 1.

Relation of Law to Happiness—of Judicature, i. e. Judicial Procedure, to Law.

Theadjective branch of law, or law of procedure, and therein the law of evidence, has everywhere for its object, at least ought to have, the giving effect throughout to the several regulations and arrangements of which the substantive branch or main body of the law is composed.

As to the main or substantive branch, it has for its ultimate fruits happiness and unhappiness, in infinitely diversified and ever-changing proportions; but, in the meantime, for its immediate fruits, it has those fictitious indeed, but indispensably employed, creatures of imagination and language, viz. rights and obligations: rights its sweet fruits, pregnant with whatever is good, whether in the shape of security or pleasure: obligations its bitter fruits, evil in themselves, good in so far as they are the indispensable instruments of all created good, being necessary as well to the creation, as to the preservation, of all law-created rights.

Vain would be the attempt to impose obligations—legal obligations:—vain, therefore, the attempt to give effect to rights—to legal rights—unless, in a state of constant preparation to give execution to the will of the sovereign in this behalf, there existed a mass of physical force, superior to all resistance, which in the ordinary state of political society could be likely in any case to be opposed by private hands; and to which, accordingly, whether by reflection, or by habit and imitation, the members of the community at large were in a state of constant disposition to pay, if not an active, at least a passive and unresisting obedience.

This disposable force—the sort of person or character to whose disposition it stands committed—is that which stands expressed by one common abstract denomination, as employed in the singular number, viz. the judge: the judge, including in that one word all persons—all the individuals—to whom, on any given occasion, for the purpose in question, any portion of that force happens to be intrusted.

It is therefore by means, and in respect of the efficient service of this exalted functionary rendered immediately to the sovereign in his quality of legislator, but through him and in ultimate result to the community at large, that execution and effect—occasionally execution, and thus constantly effect—are given to those expressions—those evidences—those repositories—those vehicles—of the sovereign’s will, which are spoken of under the name of laws.

§ 2.

Relation of Evidence to Judicature.

Be the law or portion of law what it may, antecedently to execution—if not in form, at any rate in effect—if not expressed in words, declared at any rate by actions—comes decision: judicial decision,—in official language called sometimes judgment, sometimes decree, sometimes—itself or its difficultly distinguishable consequences—by various other names, such as rule, order, writ, precept, mandate, and the like.

In every instance in which, expressly or virtually, judgment is thus pronounced, two propositions are expressly or virtually delivered; viz. a proposition concerning the state of the law, and a proposition concerning the state of certain matters of fact—of matters of fact which belong to the case, and to which the law that belongs to the case is considered as applying itself. On the subject of the state of the law, the proposition has for its ground, in the case of written, i. e. statute law, the very words of the law; of that portion of the law, which on the occasion in question is in question:—in the case of unwritten law, a sort of law, of the essence of which it is, not to have any determinate set of words really belonging to it, the supposed purport of some portion of written law, which on the occasion in question is feigned or imagined for the purpose.

Thus much as to law:—in relation to matter of fact, the decision has for its ground the evidence* by which term is on every occasion understood some other matter of fact, which on that same occasion is presented to the mind or sense of the judge, for the purpose of producing in his mind a persuasion assertive of the existence or non-existence of a matter of fact first mentioned, which is always some individual matter of fact supposed to be of that sort, which on the occasion in question the legislator is supposed to have had in view.

Matters of fact being in such or such a state,—such and such (says the legislator) shall be the state of right and thence of obligation:—he who is in such or such a situation comprehended in that state, shall have a right to receive upon demand, such or such a service at the hands of the judge. Placing himself in the plaintiff’s side, “I am in such a situation,” says a man, addressing himself to the judge—“I am in such a situation—it is therefore now your duty to render me that service.”

Thus, on each occasion on which a suit is instituted—a judicial demand preferred,—a service of a nature adapted to the nature of the demand—a service always of the positive cast—is by the plaintiff called for at the hands of the judge. At the same time, if the demand be contested—the suit defended,—a service of an opposite nature—a service of the negative cast—is called for on the part of the defendant,—a service which consists in the non-imposition of those obligations—those burthensome obligations—obligations to act, to forbear, to suffer,—the imposition of which would be necessary to the rendering to the plaintiff the service, be it what it may, which is prayed for on his side.

Meantime, to constitute a foundation for this right, so far as depends upon the matter of fact, there can be nothing but the evidence:—for the reception of which, to the purpose of rendering, in conformity to the will declared as above by the legislator, either the positive service prayed on the plaintiff’s side, or the opposite and negative service prayed on the defendant’s side, according as the plaintiff is or is not in the situation in which he says he is, the judicatory cannot but lie equally open on both sides.

In this state of things, if on the ground of matter of fact it happen to the plaintiff to fail—to fail of making out his right to the service prayed for—he at the same time having that right,—it may be in one or other of three ways, and it cannot be in any ulterior way:—1. Evidence necessary and sufficient to the formation of the ground in question is not forthcoming; 2. Forthcoming and standing alone, i. e. without counter-evidence on the defendant’s side, it fails of obtaining the necessary credence; 3. On defendant’s side, counter-evidence—evidence, the belief of which is incompatible with the belief of that which is adduced on the plaintiff’s side, obtains stronger credence. But by the supposition, the plaintiff has really a right to the service which he demands:—this being the case, what follows by the same supposition is—that in the evidence adduced on the part of the defendant, there is something of incorrectness, or partially-operating incompleteness—something, at any rate, which thereby has produced a deceptious effect on the judgment of the judge.

[* ]Judgment, 1. Ex visu judicis, or from view; 2. From the supposed notoriety of the fact; 3. From the judge’s private knowledge; 4. From the supposed improbability of the alleged fact; 5. Judgment by default, or from non-observance of formalities. In all these several cases the ground of the judgment will be seen to be reducible to the notion of evidence.