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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 IV.

DUTIES OF THE LEGISLATOR IN RELATION TO EVIDENCE.

§ 1.

List of these Duties.

After what has been said of the relation of judicature to law, and of evidence to judicature, the duties of the legislator, in relation to evidence, will, it is supposed, be found comprisable under the six following heads—under each of which follow a few words of explanation, together with a brief intimation of the sort of regard paid to these duties in English practice. For giving expression to them, the imperative mood has been suggested by grammatical convenience:—

1. For the support of every right conferred, of every obligation imposed by you, do whatsoever is in your power towards the securing existence, and thereafter forthcomingness* to whatsoever evidence may be necessary:—saving on each individual occasion all due regard to the collateral ends of judicature,† as above indicated.

2. Avoid putting an exclusion upon evidence on every occasion on which exclusion of evidence is improper;—as it will be shown to be in every case, except those in which it is called for by a due regard‡ to the collateral ends of judicature.

3. Put an exclusion* upon evidence on every occasion on which exclusion is proper;—as it will be shown to be, on every occasion on which it is called for by a due regard to the collateral ends of judicature.

4. So order matters, as far as may be, that on each individual occasion, whatsoever evidence comes to have been received, shall not, in respect of the degree of persuasion produced by it in the mind of the judge, operate with an effect greater† than its due effect.

5. Nor less† than its due effect.

6. So order matters, that saving always the regard due to the collateral ends of justice, each article of evidence shall, to the mind of the judge, present itself in its best shape:‡ — meaning, by its best shape, that in which it is least likely to be productive of deception—to operate with an effect greater, or with an effect less than what is due.

7. By arrangements of a general complexion, taken beforehand, do what the nature of the case admits of, not only towards securing in each instance, as above, the forthcomingness of such necessary evidence as may happen to have been brought by other causes into existence, but also towards securing existence to such necessary lots of evidence.

N. B. Evidence brought into existence by the operation of the sort of providence thus indicated, will herein be designated by the appellation of pre-appointed evidence.

§ 2.

Regard paid to these Duties in English Practice.

Such, in as far as the view here taken of the subject may be found correct, being the list of the duties or tasks proper to be performed by the legislator—understand always, by the sovereign in his character of legislator—in the field of evidence, a brief intimation of the sort and degree of regard, which, it is supposed, will be found to have been paid in English practice to these duties, may even, in this early stage of the inquiry, be not altogether without its use.

As to the sovereign, considered in his character of legislator, on English ground in particular, in relation to the whole extent of this part of the field of action, the most supine neglect will, on his part, be everywhere but too discernible: arrangements, on which justice is so completely dependent, left, almost without exception, to be made by sinister interest, and interest-begotten prejudice, in the person of the judge:—of the judge who, in this as in all other parts of the field of law, pretending to find already made whatsoever he makes, makes and mars exactly what he pleases. If here and there, to this or that arrangement the touch of the legislative sceptre may be seen applied, it is, in every instance, by the hand of the judge that the instrument has been guided, no symptoms of thinking being anywhere perceptible, on the part of that which should have been, and is spoken of as if it were, the all-directing mind.

1. Under the head of forthcomingness, as above explained, the system of arrangements provided have, in proportion as they have been looked into, been found in a deplorable degree scanty, inapposite, inconsistent, and inadequate. But the system of procedure—judicial procedure at large—being the system to which arrangements of this description properly belong, it can only be in an incidental way that any such deficiencies can meet the eye, in the course of the present work.

2. In regard to the system of exclusion, pursued to so prodigious an extent, and with not less prodigious inconsistency, if the observations that will be brought to view are found just, it will be seen to be groundless and pernicious, to an extent little short of that to which it has been applied.

3. In regard to the applying the exclusion, on any such ground as that of preponderant inconvenience, in the shape of delay, vexation, and expense—thereby embracing the lesser evil in preference to the greater—of any such application of human prudence, scarcely an idea will be to be found:—cases of vexation to a small extent only excepted—cases in which, to the greater part of that small extent, the supposed vexation will be found to be purely imaginary, not having any existence independent of that which is inseparably attached to such infliction, as in the name of punishment or satisfaction (obligation of rendering satisfaction,) cannot but be assumed to be due.

4 & 5. In regard to the affording assistance and guidance to the judge, in forming his estimate of the probative force of evidence, so that in each instance the effect produced by it in the way of persuasion on the mind, may be neither greater nor less than what is its due, this whole quarter of the field will be found a complete blank. Nothing was done, or so much as thought of being done, but by the operation of will:—nothing by assistance afforded to intelligence. Instead of instruction, exclusion employed as above.

6. In regard to shape, putting aside the best, which, as having been originally the only shape, is the most obvious* as well as the simplest shape,—by an abuse of the art of writing, it has been the art and care of the English judge to give (as will be seen) to evidence, in so far as hath lain in his power, the two most deceptious, and in every respect the worst shapes† that could be given to it: in doing which, his own sinister interest has (it will be seen) in various shapes been promoted, while the interests of the public, in respect of truth, morality, and justice, have thereby been sacrificed: nor in this case, on the part of the legislator, have the transgressions of the judge been merely the result of blind confidence reposed in that subordinate;—the sinister interests of the leaders in legislation having on this ground interwoven themselves with, and given effect to, the sinister interests of the judge.

7. Under the head of pre-appointed evidence, it will be seen how badly individual prudence has, on this part of the field, been seconded and supported by legislative providence.

By general rules, which he has seen and suffered to be deduced from practice—from judicial practice—the legislator breeding and nourishing in every bosom the expectation of seeing his enforcing sanction applied to contracts of all sorts—to agreements and conveyances,—while the judge, by unpre-announced and unforseeable exceptions, without reason, and without end, has been violating the engagements taken by these same rules; the legislator looking on, and, by his perpetual connivance, making himself a perpetual accomplice in this perpetual breach of faith.*

[* ]The securing forthcomingness.] Physical compulsion—application of the matter of punishment—application of the matter of reward—such are the means by which, whether it be for the purpose of evidence, or for the purpose of justiciability (including what in technical language is called execution)—whether it be on the part of things or persons—forthcomingness is effected. But to the subject of procedure—not to the subject of evidence, belong the operations which have for their objects the production of these several effects. In a work on the law of evidence, these effects are in general supposed to be already accomplished: the evidence or the person or thing in which it has its source, is already forthcoming, and waits for nothing but the order of the judge. The only case in which evidence is here taken up at any antecedent period, is that which affords room for the sort of evidence brought to view at the end of this list, under the appellation of pre-appointed evidence.

[† ]Collateral ends,] viz. prevention, or avoidance of the evils of delay, vexation, and expense, in so far as unnecessary or preponderant.

[‡ ]Due regard.] The regard here spoken of as due, consists in neither more or less than the observance of the simple and most unexceptionable rule—produce not a greater evil in preference to a less. For the application of this rule to the subject of evidence, see the chapter on Exclusion.

[* ]Exclusion.] On the occasion in question, if the article of evidence in question be not forthcoming, forbearance to cause it to be forthcoming is, in a sort of negative way, putting an exclusion upon it:—exclusion in a positive way is—where the evidence, although it were tendered, would not be received.

[† ]Greater than its due effect;—less than its due effect.] Among mankind at large, the general propensity is—to give to evidence too much rather than too little credence. Although deception may in either case be alike the consequence, yet to prevent too great credence is, in a manner, except where religion has been concerned, the only object of the two, on which, on the part of government, any care has been employed. For this purpose, the only course that has been taken is exclusion:—for fear of deception, exclusion put upon all such evidence, in the instance of which it has been apprehended that, if received, too great credence would be bestowed upon it, and thereby deception, deception put by it upon the judge would be the consequence.

Avoidance of deception by evidence being the end, exclusion of evidence will here be represented as in no case proper and conducive: instruction, viz. as from the legislator to the judge, as being in every case proper and conducive, and the only sort of application that in the nature of the case can be conducive to that end.

[‡ ]Best shape.] In some instances, evidence is not to be had but in its own shape, and, as it were, ready made; so that all that the judge has to do with it is to receive it.—Examples:—1. Memorandums made for private use; 2. Letters, after or before transmission; 3. Things in general, in the character of sources of real evidence—a modification of circumstantial evidence.

In other instances, the judge has to extract it himself, or at any rate, finds nothing to hinder him from extracting it: in which case, the shape in which it will present itself depends upon himself: interrogation being the chief instrument employed in the extraction of it. According to the circumstances in which it is received or extracted, great is the variety of shapes of which it will befound susceptible.

Before the art of writing came into use, personal testimony, delivered or extracted viva voce in the presence of the judge, presented the only shape in which personal evidence could make its appearance. Since that period, pre-appointed evidence (of which immediately) has presented another sort of evidence, which, as will be seen, received its shape from the hand of the legislator, or during his sleep, from the hand of the judge.

[* ]Most obvious.] Viz. examination viva voce, as before juries—before justices of the peace—before committees of the legislature.

[† ]Worst shapes.] Affidavit evidence, written deposition, taken as in equity court, ecclesiastical court, and admiralty court practice.

[* ]Breach of faith.] Question—where is the breach of faith? It is from judicial practice alone (there being no statute law on the subject) that the general rule, contracts willbe enforced, can have been formed: and by the same practice by which this general rule is indicated, so are the exceptions.—Answer. By its extreme simplicity the general rule takes hold of and fixes itself in every mind:—by their incongruity, unconnectedness, inconsistency, variety, and multitude,—and by the obscurity of the language in which they are expressed—the exceptions are rendered—to lawyers difficulty and imperfectly cognoscible—to non-lawyers, utterly uncognoscible.