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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 VII.

CAUSES OF TRUSTWORTHINESS AND UNTRUSTWORTHINESS IN TESTIMONY—THENCE OF BELIEF AND UNBELIEF.

§ 1.

Connexion between Trustworthiness and Belief.

To form any substantially grounded estimate of the probative force of testimonial evidence, it will be necessary to take a view, on the one hand, of the causes of correctness and completeness—in other words, of trustworthiness;* on the other hand, of deceptious incorrectness and incompleteness—in other words, of untrustworthiness, in human discourse. Of these causes, the clearer our conception is, the more distinct and correct will be our estimate of that force: and to these causes, and to the conception, more or less accurate, which in each instance it happens to us to form in relation to them,—to these sources it is, that we must look for the only intelligible and practically useful account, that can be given of the foundation of affirmative and disaffirmative persuasion,—of belief and unbelief.

Of trustworthiness, and of untrustworthiness, the causes are to be looked for, partly in the state of the mental faculties, intellectual and moral, of the individual, partly in the state of the external circumstances, to the operation of which it happens to those faculties to stand exposed.

§ 2.

Intellectual Causes.

Of the intellectual faculties, in so far as they are in a state adapted to the purpose of testimonial discourse, i. e. to the giving relative correctness and completeness to the statement in the delivery of which they have borne a part, nothing in particular will be to be said. But by any of those infirmities, to which they are respectively subject, any statement which they have borne a part in the delivery of, is liable to be rendered in a greater or less degree deceptiously incorrect or incomplete: hence the necessity of observing the lines of separation by which they stand distinguished from each other, and, in the character of causes of misreport, noting the weaknesses of which they are respectively susceptible.

Simple perception, attention, judgment, memory,—by these terms may be brought to view the sources, as by expression the vehicle, of discourse at large,—and thence of testimonial discourse. As it is to these that we are to look for the intellectual causes of correctness and completeness in testimony, in so far as it is in a correct and complete state; so likewise of its incorrectness or incompleteness, in so far as it is in an incorrect or incomplete state. As to the imagination, contributing nothing to correctness, or, in so far as it is distinet from memory, to completeness, so it is that upon testimony it can scarcely operate in any other character, than that of a cause of incorrectness or incompleteness, more particularly and obviously of incorrectness. Acting under the orders of the will, and directing its exertions to a particular end, it becomes invention: taking for its end deception, and that deception being pernicious, the will its director, operating under the impulse or attraction of sinister interest—(that is, as will be seen, of any interest or motive acting in that sinister direction)—it becomes mendacity.

Perception, by its faintness, or indistinctness,—attention, by its absence, or its weakness,—judgment, by its errors, of which the faintness of the perception, and the absence or faintness of the attention, are among the causes,—memory by its absence, its faintness, or its indistinctness,—thus it is, that these faculties, these fictitious psychological entities, are liable to become each of them occasionally a cause of the undesirable effect: and, as it is by expression alone that the state of the narrator’s mind is communicated to, and impressed upon the intellectual faculties of the judge, there is scarcely a modification, or instance, of incorrectness or incompleteness, capable of being produced by an infirmity in any of those sources, that is not capable of being produced by an infirmity in this vehicle.

To develope, and exemplify the modes and causes of the mischief as above indicated, and at the same time to endeavour to bring to view such feeble, and unhappily but too precarious remedies, as the nature of the case admits of, forms in the body of the work the task of a chapter allotted to that purpose.

§ 3.

Moral Causes in general—viz. the several Sanctions.

As to moral causes,—not only incorrectness and incompleteness in testimony, but (what seems almost to have escaped notice) correctness and completeness, owe their existence to good and evil—to pleasure and pain—in experience or in prospect, existing in the mind in the shape of interests, and, in so far as yet but in prospect, operating in the shape of hope and fear, in the character of motives.*

Veracity, therefore, not less than mendacity, is the result of interest: and, in so far as depends upon the will, it depends, in each instance, upon the effect of the conflict between two opposite groupes of contending interests, which of them shall be the result.

Collectively taken and ranged into groups, and deduced each group from a particular source, and thereupon considered in the character of causes of human action in general, and of discourse, including testimonial discourse in particular, these modifications of pleasure and pain, experienced or expected, have elsewhere been brought to view under the name of sanctions.†

So far as they are considered as the result of causes purely physical, the action of other rational agents from without not having any share in the production of them, they are referable to a sanction which may be termed the physical, the purely physical, sanction:—in so far as they are expected at the hands of rational agents, they have been referred to one or other of three sanctions:—1. The popular or moral sanction; 2. The political, including the legal sanction; 3. The religious or supernatural sanction. To the popular or moral sanction it is that they may be referred, in so far as the pleasures or pains in question are considered as about to result, or liable eventually to result, from the good or ill offices, and thence from the good or ill will, thence again from the good or ill opinion, of other human beings: viz. in virtue of whatsoever portion of liberty to this effect may have been left to them, by the state and condition of the law.

To the legal, or (to take it in its full extent) the political sanction, they may be referred, in so far as they are considered as about to result, or liable to result, from the exercise of the powers of government, whether in the track of the legislative, the judicial, or the administrative department. To the religious or supernatural they may be referred, in so far as they are considered as about or liable to result from the exercise of the powers of government, by the almighty hand of a supernatural and invisible being, in the present life, or in a life to come.

§ 4.

The Physical Sanction.

I. In general, it costs less labour to report a matter of fact, with its circumstances, as presented by the memory, than, at a moment’s warning, to invent, in a train of a given length, circumstances, which, without being true, shall, to the very end, be taken for such. So far as this observation agrees with the nature of the case, so far may the physical sanction be said to operate in restraint of deceptious incorrectness and incompleteness.

At the same time, if it be in strict form and high degree that correctness and completeness are required, neither is the labour of the memory altogether free from uneasiness: a labour which is the greater, the more distant in point of time the matters of fact were, and at the time of perception the less impressive, especially if, of the first impression, the recollection have not, in the meantime, been refreshed by intervening interests: and here again we see the physical sanction operating—operating, but now in the character of a cause—not of correctness and completeness, but of incorrectness and incompleteness.

In the uncertainty on which side this purely physical sanction will operate with greatest force, and in the comparative weakness with which it operates with a preponderant force in favour of correctness and completeness, may be seen the demand which has place for the operation of the several other sanctions that have just been mentioned—sanctions to which, in contradistinction to it, may be given the common denomination of rationally-operating ones, inasmuch as in their respective operations the reason—the judicial faculty—cannot but have been made to bear a part.

§ 5.

Popular or Moral Sanction.

II. In the second place, comes under review—the popular or moral sanction.

As to the direction in which, on the field of evidence, it operates, the restraint which, generally speaking, it applies to deceptious incorrectness and incompleteness is obvious, and furnishes the matter of the general rule.

Unhappily, out of this rule, ere it can in every part have been reduced within the limits of exact truth, exceptions, and to no inconsiderable an extent, must be cut out of it. Follows a brief indication of the groups in which they will be found arranged:—

1. Cases where, by contending interests or prejudices, a sort of schism, more or less permanent, is produced, in the aggregate force of this sanction, form one class of these exceptions.

2. Another class is composed of those in which, by the misapplied influence of the political sanction,—i. e. of the constituted authorities, at whose disposal that influence is placed—instead of being applied to the restriction, the force, not only of the political, but thereby even of the popular sanction, is applied to the encouragement and increase of deceptious incorrectness and incompleteness, and that, as there will be occasion moreover to mention under the next head, in its most vicious and pernicious form—mendacity.‡

On one and the same occasion, and even in the instance of the same individual, in case of delinquency on his part, the force of the popular sauction may be seen acting in opposite directions at once,—urging him on in or towards the path of mendacity on the one hand—pulling him back from it on the other. In this conflict, which, then, will prevail?—the mendacity-promoting, or the mendacity-restraining force? The act in question being an immoral act, and by the popular or moral sanction reprobated as such, brings shame upon him who is understood to be guilty of it: and the individual in question being by the supposition actually guilty of it, if, on being interrogated, he speak the truth, and thereby confesses himself guilty of it, he thereby subjects himself, with more or less probability, to punishment, and at the same time with certainty to shame. If, on the other hand, his answers to the interrogatories are in any respect that which, to afford him any chance of safety, they must be, materially false, no sooner does detection follow (nor can he ever see that instant, in the next to which it may not follow) than his lot becomes, in this case also, the same. To note the existence of this conflict, is all that belongs to the present purpose: as to the result of it, obviously enough it will on each individual occasion depend on the preponderance, as between the aggregate force of the motives operating on the one side, and the aggregate force of the motives operating on the other side.

Thus much as to direction. As to force, to the obvious and but too indisputable insufficiency of this sanction, in cases where mendacity-promoting interests are in a condition to act with those degrees of force which are but too commonly exemplified, is referable that demand, of which the existence is so universally acknowledged, for the more steady as well as impressive force of the political sanction: especially in that regulated and conspicuous form, in which it is made to operate in the band of the judge.

§ 6.

The Political, including the Legal Sanction.

III. In the third place, comes the political or legal sanction.

Follows a list of the topics which, in relation to this sanction, and its applicability and application in restraint of deceptious incorrectness and incompleteness, will come under review:—

1. Cases or points, in relation to which, in restraint of deceptious incorrectness and incompleteness, in judicially delivered testimony, this sanction is in its nature capable of being made to operate with a degree of efficiency superior to that of the popular or moral sanction.

2. Cases or points, in relation to which, in restraint of mendacity, the force of the popular sanction being divided against itself, as above, the force of the legal sanction is wont to be made to operate with a degree of uniformity greater than that which the force of the popular sanction operates with, in these same cases.

3. Occasions on which, it being radically inapplicable to this purpose, the legal finds itself obliged to resign its task to the force of the moral and religious sanctions.*

4. Occasions on which, under and by virtue of English law, its operation is rendered habitually adverse to truth, habitually subservient to mendacity, and upon an all-comprehensive scale, actually, and to a great extent purposely, productive of that most pernicious and all-infecting vice.

§ 7.

The Religious Sanction.

IV. In the fourth and last place, comes the religious sanction.

Under every religion, what is but natural is—that to every important purpose, whether it be from legal operation, or from any other source, that the importance of the purpose is derived, the religious sanction should, with its whole force, be made to operate in restraint of mendacity:—in restraint of deceptious incorrectness and incompleteness. The influence of a master on the minds of his disciples—the power of a leader over the conduct of his followers—depends upon the correctness and completeness of the judgment he is enabled to form, as to what their conduct on every occasion material to his purpose eventually will be: and thence, upon the correctness and completeness of such information as be can obtain, as to what their conduct and mode of being is and has been:—their mode of being, in every imaginable point, not excepting their most secret thoughts, intentions, affections, and opinions.

In the religion of Moses, and in the religion of Jesus, the energy, as well as steadiness, with which the force of the religious sanction is applied to this purpose, are observable in a pre-eminent and conspicuous degree.*

[* ]Trustworthiness.] Trustworthiness and probative force—between these two expressions the relation is intimate, but the coincidence is not complete: in a considerable part of its extent, probative force will be found to outstretch trustworthiness.

Probative force is alike applicable to direct and to circumstantial evidence;—and in the case of circumstantial evidence, trustworthiness is out of the question: circumstantial evidence having for its sources things as well as persons: and when a person is the source of it, the probative force of it has no dependence whatsoever on his trustworthiness; circumstantial evidence, and that of the most instructive kind, being (as will be seen) afforded, in cases where the highest degree of untrustworthiness is a matter of the fullest assurance.

Nor even in the case of direct personal evidence is the coincidence complete. Even in this case, trust-worthiness may be at the highest pitch, and at the same time probative force to any degree weak: viz. where, on the part of the deponent in question, intensity of persuasion (judging from the expression given to it by him) is in that same degree weak.

In the case of direct evidence, declared by two witnesses, both being percipient witnesses, the degree of trustworthiness being supposed the same, to render the degree of probative force exactly the same, two ulterior points of coincidence must have place:—1. Intensity of persuasion, as evidenced by intensity of averment, must, as above, be the same; and, 2. In regard to counter-evidence (under which head will be seen to be included improbability,) there must be either none in either case, or the same, i. e. operating with same degree of probative force in both cases.

Between degree of probative force on the part of the evidence (the whole mass of evidence being taken together,) and intensity of persuasion on the part of the judge, the coincidence seems to be complete: and this, whether the question be concerning what is, or concerning what ought to be. To say that the probative force of the evidence is at such or such a degree, is to say that, in the bosom of the judge, intensity of persuasion is at that degree: to say that such a degree of probative force is properly belonging to the mass of evidence in question, is to say that, upon the receipt of that same mass of evidence, the same degree of intensity of persuasion is the degree which is fit and proper to have place in the bosom of the judge.

[* ]See Table of Springs of Action, Vol. I. p. 195.

[† ]See Introduction to Morals and Legislation, Vol. I. Ch. III. p. 14.

[‡ ]Mendacity.] Lest the general rule, as above indicated, should stand chargeable with incorrectness, for want of another defalcation,—a defalcation, the need of which is indicated,—not as in those cases, by circumstances of a local and temporary complexion, but by the universally prevailing and unalterable nature of things, mention could not here be altogether refused to that class of cases, narrow as the description of it is, on which the substitution of falsehood to truth being, by the principle of probity (taken in that largest sense in which that of humanity is included in it) not merely allowed but prescribed, is by mankind in general, in their character of administrators of the force of the popular or moral sanction, exempted in their view from that censure which attaches upon it in other cases. For examples, the cases of a madman, or a malefactor, requiring information for purposes of mischief, will supersede the need of any other. Neither in the shape of veracity, nor in any other shape, virtue,—nor in the shape of mendacity, nor in any other shape, vice,—being of any importance but with reference to utility,—to universal utility,—let falsehood, as in the rare cases above mentioned, be necessary to the prevention of mischief, falsehood, instead of a crime, becomes a duty. But, upon examination, not inconsiderable would the ground be seen to be in extent, on which, while in respect of probity, i. e. regard for others—duty towards others—departure from the line of truth may be matter of indifference, yet by the rule of prudence, i. e. by self-regard, it would be seen to be rigourously proscribed.

[* ]Examples:—Among psychological matters of fact, in many instances, motives and thence dispositions, especially where, in the situation of the individual in question, motives more than one are assignable, any one of which might have been sufficient to the production of the effect. In regard to another class of psychological facts, viz. intentions, the legal sanction is sufficiently well qualified to take cognizance of them, and, on all sorts of occasions, actually does.

[* ]In the instance of the Hindoo religion, a very remarkable set of exceptions will be brought to view: but by the licence granted to mendacity in these excepted cases, no defalcation, materially prejudicial to the interests, is made (it will be seen) from the influence and power of the leading classes.

Concerning the perversion made of the force of the religious by the political sanction, by means of the ceremony called an oath, see the ensuing chapter.