Front Page Titles (by Subject) CHAPTER VI.: DEGREES OF PERSUASION—THENCE OF PROBATIVE FORCE—HOW EXPRESSIBLE. - The Works of Jeremy Bentham, vol. 6
CHAPTER VI.: DEGREES OF PERSUASION—THENCE OF PROBATIVE FORCE—HOW EXPRESSIBLE. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 6 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 6.
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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.
- 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.)
DEGREES OF PERSUASION—THENCE OF PROBATIVE FORCE—HOW EXPRESSIBLE.
On the occasion, and for the purpose of decision—and for that same purpose, on the occasion of deposition—the degrees of which persuasion is susceptible, in what manner shall they find expression? In answer to this question, in the arithmetical language of the doctrine of chances, mathematical science affords an established, and hence an obvious mode. Unfortunately, correct as this mode is—and in truth the only correct mode of which the nature of the case admits—it will presently be seen to be altogether inapplicable to any judicial purpose. On the affirmative, as well as on the disaffirmative side, in the mathematical scale of probability, the degrees rise above, as well as sink below one another, on a scale to which there are no assignable limits. But, on whatsoever grounds formed, a scale, with at least a fixed top belonging to it, if not with a fixed bottom, is absolutely necessary to every legal purpose. In every case, on one or other side, a degree high enough to warrant decision on that side is the one thing needful.
In the case of affirmance, for any expression indicative of any degree above that necessary degree, there cannot be any use: on the other hand, for expressions indicative of degrees of persuasion below that degree, real and substantial uses, it will be seen, may be found.
In a many-seated judicatory, the different votes are frequently the result of degrees of persuasion widely different. Were matters so arranged, as that these degrees could, each of them, find an adequate mode of expression,—in such case, what might every now and then happen is—that a decision which, upon the present plan, is, by a small majority, pronounced in favour of the affirmative side, would on that plan be pronounced in favour of the disaffirmative side, and vice versa.
In the case of a judicial decision—whatsoever were the degree of force pitched upon as sufficient, and at the same time necessary, to give to it its legal effect—from the allowing a man to place the declared force of his persuasion at a degree as much below that standard as he pleased, no inconvenience could possibly ensue. On the other hand, if for giving to it a degree of force above the standard, an equal latitude were allowed, no sooner were passion, in any degree, to enter upon the scene, than an auction would commence; and to the biddings, forasmuch as there would be nothing to pay, there would be no end.
When anything that bears the name of power is in question, be the nature of it what it may, no great danger is incurred by allowing a man to give to it as little effect as he pleases;—allow him to give as great an effect to it as he pleases, the consequences need not be mentioned.
Even when the judicatory has in it but a single seat,—even in this case, with a view to appeal, a scale of this sort might be not altogether without its use. Not unfrequently, in the mind of the judge, so confessedly near to an equilibrium are the contending forces, that nothing but the necessity of deciding would have determined him to decide on the side chosen by him, rather than on the other side.
In any such case, were the real degree of persuasion suffered to find its adequate expression, appeal, where proper, would frequently find not only better encouragement, but more substantial ground, than in the established mode, in which the only degree of persuasion allowed to be declared, is that to which the highest degree of practical effect is attached.
In the procedure of ancient Rome, judicial practice received a refinement, which has found few or none to copy it. The judge, on whose mind the grounds on both sides operated with equal weight, insomuch that, consistently with veracity, he could not say that the scale of his judgment had turned on either side, nor, consistently with probity, give the effect of a vote to either side, found in an appropriate form the means of preserving in unsullied purity those virtues, the extirpation of which has, with such conspicuous industry, and with proportionate success and profit, been laboured at by English judges. Non liquet:—just grounds of decision being wanting to me, I will not decide. No perjury here!—no torture! Destitute of such necessary instruments, how could justice do her work?
To the witness’s box this same mode of expression would not be found less capable of being applied, than to the bench: but in the case of the witness, for simplicity’s sake, suppose but one witness, and in the breast of that witness let trustworthiness be entire. On the part of the judge, the force of persuasion will, on this supposition, be the exact copy of that of the witness, and the same numbers will give the expression of it. But taking the public mind at its present state of culture, the debasement of the soil having been the only object of such labour as by the official husbandman has been as yet bestowed upon it, the refinement, appearing in this case still greater than in the other, could do no otherwise than expect a proportionable resistance.
Of the particular plan of expression which, to the purpose in question, would be necessary, the development must be confined to the body of the work. Lawyers of the Roman school—lawyers of the English school—it will there be seen into what awkward shifts—into what inadequate and uncharacteristic modes of expression they were driven—driven by their endeavours to give expression to degrees of probability, without having recourse to numbers.