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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.)

FALSE SECURITIES FOR TRUSTWORTHINESS IN EVIDENCE—OATHS AND EXCLUSIONS.

§ 1.

Ceremony of an Oath—a False Security for Trustworthiness.

Securities against mendacity brought to view—securities in such numbers and variety—and no mention yet of oaths—no mention of that sacred instrument, which, in the general estimation of mankind, occupies the highest place on the list of these securities, and has so frequently been employed, not only in preference to, but to the exclusion of, all those others.

That by the omission here spoken of, an emotion of surprise should be produced, cannot itself be matter of much surprise. In the character of an instrument actually and generally thus employed, the title of this ceremony to a place upon the list of these securities, admits not of dispute. But, in the character of an instrument fit to be so employed, the more closely it is looked into, the more plainly, it is supposed, will its unfitness to be so employed be recognised.

Exhibited in detail, and with a degree of particularity in any degree corresponding to the importance of the subject, the consideration by which the condemnation here in question was produced, would have given too long an interruption to the thread of the inquiry, and run into a degree of extension altogether disproportionate. Not requiring to be taken into consideration on the occasion, or for the purpose, of anything that follows, the matter belonging to that head is here omitted.‡

Meantime, of the considerations by which so important a conclusion was produced, some intimation, how slight and general soever, may in this place be not altogether without its use.

The following are the propositions by which they may stand expressed. For the present, they may be considered as so many positions set down for proof:—

1. That, in the very essence of this instrument, a rash and grossly incongruous supposition is involved; viz. that, for the purpose of eventual punishment, and thence for the purpose of dominion, applicable to any end in view at pleasure, the power of the Almighty lies at all times at the disposal—at the absolute disposal, of any the most worthless of human kind.

2. That, by the religion of Jesus, in so far as the precepts ascribed to Jesus are to be admitted as containing the expression of it, the application of any such instrument to any such purpose as the one here in question stands prohibited; prohibited in the plainest and most pointed terms:* and that for any exception which a man may feel himself disposed to cut out of that prohibition, imagination is the only warrant that can be found.

3. That, by the articles expressive of the particular tenets of that modification of the religion of Jesus which is established in England, the use of it, though declared allowable, is not on any occasion enjoined.†

4. That, to any such good purpose as that in question, its efficiency will, if attentively examined, be found to amount to nothing: inasmuch as, in every case in which this supposed security presents itself to view as if operating with effect, other instruments, of which, in the character in question, the efficiency is altogether out of dispute,—two other instruments, viz. punishment and shame, may be seen, one or both of them, operating on the occasion in question, in that same direction, and to that same end:—and that, when these instruments are both of them out of the question,—have not either of them, any place,—mendacity, any application made of this instrument, notwithstanding, is altogether without restraint:—and if called for by any exciting motive, takes place accordingly:—and to this purpose, university oaths and custom-house oaths are brought to view.

5. That, of its inutility in the character in question, a continual and unquestionable, but tacit and virtual, recognition is made, in and by the practice of both houses of parliament: inasmuch as, by the House of Commons, operations, of incomparably greater importance than any to which the sanction of an oath is ever applied, viz. measures of legislation—in a word, laws of all sorts—are continually established on the ground of evidence obtained without any assistance from this instrument.

6. That, while to good purposes it is thus inefficient, to bad purposes, vast and indefinite in extent, variety, and importance, it has been, is, and threatens to continue to be, but too efficient: for that the instrument being in its nature alike applicable on every imaginable occasion,—viz. not only on those occasions on which the oath has been distinguished by the name of an assertory oath, but on those on which it retains the name of a promissory oath,—whatsoever pernicious effects it is found pregnant with in the latter of these two characters, will be attached to it, inseparably attached to it, in whichsoever of the two it be employed.

7. That, in the character here in question, viz. that of an assertory oath, it has already been seen to be a main, an indispensable instrument, in the organization of the system of mendacity licences above mentioned.

8. That, in this same character, it has, in a variety of ways, the effect of obstructing the action and weakening the efficiency of the laws.

9. That, in a sort of ambiguous or mixed character, composed of that of the assertory, and that of the promissory oath, it has the effect of bewildering the conceptions, corrupting the morals, and enslaving the consciences of men in the situation of jurymen: contributing, in conjunction with other instruments, to the converting them into puppets in the hands of judges.

10. That, in the character of a promissory oath at large, it is employed, and but too naturally, and with but too much frequency and success, in giving union, force, and effect, to the mischievous enterprises of criminal and lawless conspirators.

11. That, in this same character of a promissory oath, in the mouth of an English monarch, it is but too well adapted to the affording pretence and encouragement to misrule by abuse of prerogative: and on this occasion, the application made of it on and by the coronation oath is brought to view.

12. That, in those seats of superior education, in which the characters of a considerable proportion of the future rulers of the community are formed, the use that has been made, and continues to be made, of this instrument, is such, as to have introduced distortion into the intellectual, as well as corruption into the moral part, of the mental frame: and on this occasion, a fundamental error in morals and legislation—an error respecting the use and application of punishment—forced by an irresistible pressure into the mind in that tender and yeilding state of its growth, is brought to view.

13. That, on any of the occasions, on which, to the purpose of judicature, it is employed in the character of an assertory oath, there exists not any real need of it:—for that its place may be supplied, and with great advantage, by other and unexceptionable arrangements: of which arrangements an indication is accordingly brought to view.

§ 2.

Exclusion of Evidence—a False Security against Deception.

In the character of a security against deception, putting exclusion upon evidence is a practice, which appears to have as yet been everywhere in use: and in the boundless field of evidence, vast in the aggregate,—prodigiously diversified in respect of the seat of the particular spots,—is the extent that would be found occupied by this mode of husbandry, even in those regions, whichsoever they may be, in which the use made of it has been least extensive.

“So universally as this sort of arrangement has been received in the character of a security against deception, is not then its title to that character,” says somebody, “a good one? If exclusion put upon false evidence be not a security against deception by false evidence, what else can be? In comparison of this, how precarious is the effect of all those other securities put together! Can a man have been deceived by evidence which has never been so much as present to his mind?”

No, certainly: and so it is, that if no evidence at all were on any occasion admitted, deception by evidence could not on any occasion be produced.

But deception may be, and is produced,—deception and thence misdecision,—not only by evidence, but for want of evidence: produced, viz. by false or otherwise fallacious evidence on the other side: or by causing not to be believed, the existence of a really existing fact, the existence of which, had the evidence been admitted, would have been believed.

Moreover, if, on the part of the judge, deception be pernicious, it is so only in so far as it is productive of misdecision: and if misdecision itself be pernicious, it is so no otherwise than in so far as it is productive of injustice: injustice, viz. of that sort which stands opposite to the direct ends of justice, as above explained.

If misdecision be one cause by which injustice is produced, non-demand is another. When a man is well assured that the evidence, without which the justice of his demand cannot be made appear, will not, if presented, be admitted,—in such case, be his demand ever so just, and the loss of the object of it ever so fatal to him, he forbears, if he be well advised, to present it.

By non-demand and misdecision taken together, that of the practice of putting exclusion upon evidence, the effect is much more frequently to produce than to prevent injustice,—so much so, that it would be a prodigious benefit to justice, if exclusion of evidence were, in so far as it takes this for its ground, itself for ever, and in every instance, excluded,—is a persuasion, entertained after little less than fifty years of consideration, on grounds of which a slight outline will be given in the present abstract, the filling it up being reserved for the body of the work.

“But trustworthiness—(it may be asked) why speak here of trustworthiness? By whom can any such conception have been entertained, as that exclusion of evidence can operate as a security for the trustworthiness of evidence? as a security for its title to credence, any more than for its actually obtaining credence?”

No, certainly: not for the trustworthiness of the particular lot of evidence to which, in the instance in question, the exclusion is applied: for, by the exclusion put upon it, its untrustworthiness is always affirmed:—not for the trustworthiness of that one lot; but however for the trustworthiness of the whole remaining mass, of which that lot, had it obtained admittance, would have made a part: if so it be, that after the exclusion of whatever articles have been excluded, there be remaining any others to which admittance has not been refused.

[‡ ]It will be found in the tract entitled “Swear not all,” in vol. V. of this collection.

[* ]Matt. v. 34—“Swear not at all.”

[† ]Article 39—“We judge that the Christian religion doth not prohibit, but that a man may swear when the magistrate requireth.”