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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 XII.

OF CIRCUMSTANTIAL EVIDENCE.

§ 1.

Extent and Use of this Inquiry.

To present an all-comprehensive, or so much as any considerably-extensive view of circumstantial evidence, even when narrowed by the sort of limitation applied to it by the words to a legal purpose, is an undertaking which, at first view, may be apt to appear impracticable. It may, moreover, be not altogether unapt to appear useless—void of practical use.

The matter of fact which, with relation to the other matter of fact in question, considered in the character of a principal fact, is proposed by you as evidentiary of it, is it so in reality? It will present itself as such of itself,—it may be said:—your instruction is therefore of no use. Does it fail of presenting itself in that character? Neither in this case can your presenting it as such be of any considerable use.

1. As to all-comprehensiveness—as to the giving to the view in question this degree of completeness, the task, if it be within the range of human power, is not, at any rate, at present at least, within the power of the individual by whom this attempt is made: the advance capable of being made towards it may, however, upon examination, be found less inconsiderable, perhaps, than what upon a first glance might have been expected.

2. As to utility—of a review of this sort, the utility, if any it have, will show itself in the one or other of two opposite ways:—1. If the matter of fact in question be true, in causing, or contributing to cause it, to be believed; 2. If not true, in preventing, or contributing to prevent it, from being believed.

In both ways, the subject has presented itself as being open to observations, capable of being conducive to the desirable effect:—

1. In the case where the matter of fact is true, instances will be adduced of facts in the character of principal facts, to which will respectively be found applicable evidentiary facts, in classes so ample in extent, and of which the probative force seems to have been subjected to so little scrutiny, that any observations, by which any assistance may be afforded towards the making a correct estimate of it, can scarcely be ill-bestowed.

In some of these instances, circumstantial evidence of the most instructive nature has been found involved in that system of exclusion, of which the folly, and rashness, and iniquity, will be held up to view: and if, in these instances as in so many others, the exclusion should be found indefensible, the more important and instructive the lights of which justice is thus deprived are seen to be, the stronger the ground that will thus have been made for amendment in this line.

2. So, on the other hand, in the case where the matter of fact in question is untrue, instances will be adduced of classes of principal facts, to which will respectively be found applicable classes of evidentiary facts, of a disaffirmatively probative, or say disprobative tendency:—facts of such a nature, that, for want of due attention to them, supposed facts, which, as above, are untrue, are (it will be seen) liable, at any time, to be believed;—thereby gaining a credence which is not their due. If, by the indication of any such disprobative fact, so it should happen that, in any number of instances, deception and consequent misdecision should come to be prevented, the greater the number of these instances, the greater in this case will be the utility of the observations by which mischief, in this shape, will thus have been averted.

§ 2.

Facts principal, evidentiary, probative, disaffirmative, infirmative.

Considered with a view to these opposite effects, facts operating in the character of articles of circumstantial evidence, may be divided into two classes. To those, the effect or tendency of which is to gain credence for the principal fact in question, may be preserved the appellation of positive or probative evidentiary facts; or say simply, evidentiary facts as above. As to a fact of the other class, it supposes the existence of some other fact in the character of a probative evidentiary fact; and the effect or tendency of it is—to weaken the probative force, on the magnitude of which the intensity of the persuasion produced by it depends:—call it therefore, with reference to such probative force, an infirmative fact.

Between the principal fact and the assumed evidentiary fact, is the connexion an immediate one? To form it, can no other fact or facts be found, the intervention of which, as of so many links between the two extreme links of a chain, is necessary? If yes, then so many as can be distinguished of these intermediate links, so many are the probative facts, of each of which the probative force is liable to be opposed and weakened by a separate set of infirmative—of disprobative facts.

In this case, the probative force of circumstantial evidence is diminished, in the same way as that of direct testimony will presently be seen to be, by the interposition of one or more supposed intermediate reporters between the supposed quondam percipient and the now deponent witness, as in the case of hearsay evidence.

§ 3.

Principal fact, Delinquency;—evidentiary facts, inculpative and disculpative.

By one single word, viz. delinquency, is brought to view a class of facts so ample, as to cover by its extent, one of the great departments, viz. the penal, into which the whole field of law and legislation is divided.

Taking this for the principal fact, viz. delinquency in any shape—offence—transgression (viz. against the law) in any shape—we see at a glance how extensive, and, at the same time, how important, an object of research is afforded by the aggregate of any such discoverable and expressible matters of fact, as can be seen to bear to it respectively the relation of probative, and disprobative or say infirmative, facts,—or, to employ the narrower and more opposite denominations, by which in this case they may be characterized,—inculpative and disculpative;—such* as are inculpative having for their tendency, the causing the defendant to be considered as guilty, such as are disculpative, as not guilty, in relation to the same forbidden act, considered in the character of the principal fact, of whatsoever nature in other respects it may happen to it to be.

Of the chief species of facts which have been in use to be contemplated in the character of criminative facts, a list has on this occasion been collected, containing somewhat about a score:† and along with each such criminative fact, will be given a list of such other facts, as presented themselves as bearing relation to it in the character of infirmative facts.

The very idea here expressed by the term infirmative including disculpative facts, being in the character of a general idea commensurate in its extent with that of an inculpative fact, is as yet a novel one,—no wonder if, for want of sending their minds in quest of facts of this description, law-writers of the highest name should have given as conclusive of delinquency, facts which, when the infirmative facts that bear upon the case are brought to view, will be seen to be far indeed from warranting any such conclusion.

Instances will moreover be produced, in which, upon the mere ground of this or that single fact, considered in the light of an inculpative fact, the legislator, acting in such his character, has required conviction to take place, in a case, in which the existence of one or more species of facts, operating in the character of infirmative, and thence of disculpative facts, has nothing in it but what is conformable to every day’s experience.

§ 4.

Conversion of Inculpative Acts into separate Offences.

As, for the prevention of mischief, in whatever shape it is capable of assuming, the legislator, proceeding with due caution, may find sufficient warrant for putting upon the list of prohibited acts, any sort of act that presents itself as having, in a preponderant degree, that tendency,—and this absolutely, and without reference or regard to any other sort of act;—so may he for putting upon that same list any sort of act, under the notion of its being an inculpative circumstance, evidentiary of delinquency in this or that substantive and independent shape. Nor is it to be denied but that this, if any, is of the number of ways in which the field of punishment may be, and has been, made to receive so many beneficial extensions, and the progress of delinquency so many additional impediments and checks.‡

But, to preserve an arrangement of this sort from rendering itself injurious to convenience and repugnant to justice, two precautionary conditions are necessary to be fulfilled: 1. That, if not by the very nature of the case, at any rate by positive institution, in so far as depends upon the legislator, the existence of the prohibition be effectually presented to the mind of every individual on whom it is imposed; 2. That the matter of fact, on which, with reference to the individual placed in the circumstances in question, the character of a conclusively inculpative fact is thus bestowed, be not one the existence of which, by blameless ignorance, or any other cause, it may have been put out of his power to prevent. Of neither of these conditions will the fulfilment be found altogether so consistent as could be wished. Particulars will find their place in the body of the work.

§ 5.

Principal, any physical fact,—disprobative fact, physical improbability:—or improbability physical—its operation in the character of counter-evidence.

Wide as is the extent of the principal fact above mentioned, viz. delinquency—an extent which knows no other limits than those of the entire field of penal law,—still wider in extent is that principal fact, which is liable to find opposed to it, in the character of a disprobative fact, the circumstance of improbability.

Not to speak of the whole field of legal judicature—the field which in every part of its extent lies open to the application of the disprobative fact now upon the carpet, terminates there and there only, where existence, or if absolute precision be desired, where humanly perceptible existence terminates.

When the degree of improbability is meant to be represented as a very high one, in that case, for the sake of impressiveness, to the word improbability, the word impossibility is, in a loose way of speaking, apt to be substituted: impossibility, the predication of which would, in relation to any conceivable matter, if performed seriously, and meant to be taken strictly, be found to involve, on the part of him by whom the word is thus employed, an assumption of omniscience.

When attentively examined, even the term improbability will be found not to have for its representative any real and distinct quality actually inherent in, and belonging to, the facts themselves, but a fictitious quality, attributed to them for the convenience of discourse:—a quality, having nothing of reality connected with it, but the persuasion—(the act of the judicial faculty)—the persuasion as it has place in the mind of him, by whom, for the more convenient expression of it, or for the more effectual spreading of the like persuasion, the fictitious quality in question is thus attributed to, and spoken of as if it were a quality of, the fact itself.

Of this persuasion, if the cause be looked for, it will be found to consist in neither more nor less than the opinion entertained by the individual in question—either on the ground of his own reflection, or on the ground of the opinions or the supposed opinions of others,—that the supposed fact in question would, on the supposition of its being real, be in a state of disconformity to what is looked upon as the established mode of being, and course of nature.

In the midst of this darkness, in the hope of infusing into it some faint lights, and for the purpose of affording, in the present state of comparative inexperience and correspondent ignorance (on the part of the age in general, and of the individual in particular,) what, in the language of Sir Humphry Davy, may be called a resting-place for the fancy,—an attempt is here made, to find ground of distinction, and correspondent form of expression, for three modes or gradations of this disconformity: disconformity in toto;* —disconformity in respect of degree or quality;† —and disconformity in species:‡ disconformity in toto, importing some mode of being, which, supposing it realized, would be a violation of some one or other of the laws of nature: those metaphorical and fictitious laws, of which an exposition, supposed to be in some respects new, though not in any respect in opposition to generally received conceptions and opinions, will in the body of the work be attempted.

Be the fact what it may, between its existence and non-existence (time and place given) there is no medium: and thence it is that, ascribed to facts themselves, probability and improbability, with their infinity of degrees, are mere figments of the imagination: of the imagination, not to say of the tongue. But, of persuasive force, and persuasion its effect,—negative as well as positive, disaffirmative as well as affirmative, the number of degrees is truly infinite:—the number of degrees of this cause and this effect,—and thereby of probability and its contrary,—in the only sense in which these terms are the representatives of anything that is true.

Thus it is that probability and improbability are neither of them anything more than relative: neither of them being anything but with relation to the person in whose mind they serve to represent the mode and degree of persuasion which therein has place, in relation to the fact to which they are respectively applied. Thence it is, that, though the same fact is never, at the same time and in the same place, in itself both true and false, instances are, however, in continual occurrence, in which the same fact is both probable and improbable: probable to Titius, improbable to Sempronius. Thus it is, that, even to the best informed mind, so many facts are improbable, and taken for false,—so many falsely imagined facts probable, and taken for true.

Probability is conformity, improbability disconformity, to the supposed general and ordinary course of nature:—i. e. to the conceptions entertained concerning that course by him by whom the opinion expressed by these words repectively is pronounced.

Thus it is, that, in proportion to the ignorance of the individual, or the age,—i. e. to its non-acquaintance with the general and ordinary course of nature—is the facility—in proportion to the knowledge, the difficulty,—with which facts are regarded as probable and true.

From the case in which, a matter of fact being in question, the existence of it is regarded as being, in one or other of the above ways, disconformable to the established course of nature, and on that account more or less improbable,—it may be matter of practical use and importance to distinguish the case of a self-contradictory proposition, or contradiction in terms: a case in which, though to appearance the existence alone of some matter of fact is asserted, and that matter of fact upon the face of it an improbable one, in reality no conceivable matter of fact is discoverable, of which the existence and nothing but the existence is affirmed;—but one and the same matter of fact,—perhaps improbable, perhaps so far from improbable as to be proved by continual and univeral experience, is, under favour of a diversity in the form of expression—in the assemblage of words employed in the two cases—asserted,—in the same breath asserted,—to exist and not to exist.

The verbal impossibility (for in this sense, though in this sense alone, is the assertion of impossibility compatible with a due and duly-acknowledged sense of human weakness)—the verbal impossibility of the truth of a statement of this self-contradictory complexion—neither prevents it from being said to be, nor even from really being, the subject of a sort of credence. Be it what it may, hope and fear suffice to account for its being said to be so.

§ 6.

Principal, any psychological fact;—disprobative fact,—psychological impossibility.

In the case of disconformity, the established cause in question may be—either that course of events and state of things which is purely physical, or that state of things and course of events, of which the scene lies in the human mind. Improbability is accordingly distinguishable into physical and psychological. The course of psychological existence being, in so prominent a degree, less uniform than that of purely material nature (in insanity, the uniformity being liable to vanish altogether,) hence it is, that, in the character of an article of disprobative circumstantial evidence, the force of psychological improbability—though so continually, and irreproachably, and unavoidably, in conjunction with other evidences, or even singly, taken for the ground of the most important practical conclusions,—is, generally speaking, in comparison of physical improbability, but feeble.

When the principal supposed fact consists of delinquency in any shape,—in this case, character or reputation, station in life, degree of atrocity ascribed to the supposed offence, have been commonly considered as presenting so many instances or causes of psychological improbability, and thence so many articles of circumstantial evidence, applicable in disproof of the supposed fact; viz. in so far as, on the part of the individual in question, delinquency, in the shape in question, is considered as included in it. Of these several articles of circumstantial evidence, the disprobative force is taken for the subject of examination in the body of the work.

§ 7.

In a train, principal, any prior act;—probative, any posterior.

In a series of acts, following one another in pursuit of a more or less customarily entertained and regularly pursued design,—by the undisputed existence of a consequent article, in a series of this sort, what probability is afforded of the performance of the first article of the whole series?—and so in regard to the several intermediate articles?—Priora quatenus signata posterioribus? or, Posteriora quatenus signa priorum?

In a case of this sort, the degree of probative force with which the existence of the antecedent article is probabilized by that of the consequent, will depend (it is evident) upon the regularity with which, according to the experienced and sufficiently notified course of human practice, the several articles in the series have succeeded one another; or rather, to speak more pointedly, according to the regularity with which an article, of the species or description of the individual consequent article in question, has been preceded by an article of the species of the antecedent article in question.

On this occasion, the series of actions by which the most impressive, as well as important, illustration may (it should seem) be afforded, is that of which the course of judicial procedure is composed. Let the consequent in question be the last, or among the last, of the constantly necessary articles, if such there be, in such a series,* in either of these cases, the probative force,—with which the existence of the antecedent, in the character of the principal fact, is probabilized by that of the consequent, in the character of an evidentiary fact,—will to any eye, in any the slightest degree conversant with the course of legal procedure, be apt to present itself as little less strong than that with which the existence of past infancy is probabilized by present old age.

But, as from one place to another there are frequently different roads, so also between the first and the last stage of a course of judicial procedure. And by this circumstance (it is easy to see,) that the degree of probative force with which the existence of an ordinarily antecedent fact is probabilized by the existence of an ordinarily consequent fact, will be liable to be in a greater or less degree diminished, according to the nature of the case.

§ 8.

In a train, principal, any posterior act; probative, any prior.

E conversò in a series of the same sort, or in the same individual series by the existence of an antecedent, what probability is afforded of the existence of a consequent article? In this case, the probative force and correspondent probability will present itself immediately as sunk to a much lower degree in the scale. Be the course of action what it may,—lawful or unlawful,—by consummate acts inchoate are rendered much more probable than by inchoate, consummate.

In every series of this sort, suppose the articles as they occur entered upon a register, and that register kept with the regularity of which a document of this sort is susceptible, and which the importance of it demands, the indications afforded by it to this purpose would, on being presented in numbers, afford to judicial decision a still more substantial basis, than, in the case of maritime insurance, is afforded by the list of arrivals, compared with the list of policies.

In the English law report-books, cases exemplificative of this reversed series are to be found in no inconsiderable number: but, of any instance of recourse made to any such numeral and mathematical ground of decision, no expectation would be very abundantly satisfied, nor (it should seem) very naturally entertained.

In a case of this sort, on what ground then is it that the decision has been formed?

The question is easily proposed,—the answer not altogether so easily returned.

§ 9.

Principal fact, spuriousness, or unfairness;—probative fact, non-observance of formalities.

On the part of any written instrument, purporting to be designed to give expression to a contract (taken in the largest sense of the word contract,) to an agreement, a conveyance, or a last will,—principal fact, either unauthenticity or unfairness; evidentiary fact—fact regarded as conclusively probative of unauthenticity or unfairness—non-observance of formalities. In point of reason and justice, on this ground, and no other, stand the host of nullifications, so plentifully poured down upon, and with so little or such ill-directed thought applied to those bonds of society by learned hands:—how weak that ground,—how strong the force of the considerations, which in the character of infirmative facts, rise up in opposition to the inference deduced from it,—an questions which will be brought to view under another head.*

Laying aside a species of indication thus unconclusive, on the part of a written document of any kind,—what other facts does the nature of the case afford, capable of operating in the character of evidentiary facts, disprobative of its authenticity? and in particular, in the case of an instrument purporting upon the face of it to be, or exhibited as being, of an ancient date? To afford assistance towards the finding answers in every case to these questions, is in the body of the work the business of one or two parts of a short book.†

Non-observance of formalities being thus spoken of in the character of a circumstance taken as evidentiary of unfairness on the part of a contract, or of spuriousness on the part of an instrument purporting to exhibit the expression of a contract,—continual error would be apt to be the result, if for the prevention of it, apt warning—distinct and timely warning—were not afforded.

What is here meant is—that where, on the alleged ground of non-observance of this or that formality, the instrument has been pronounced (as the language is) null and void,—the judicial service being thereupon refused, the rendering of which is, on the part of the judge, necessary to the giving to the instrument the legal effect which it is seen to aim at,—an opinion, ascribing either unfairness to the contract, or spuriousness to the instrument, was either the reason or the pretence;—was either professed and entertained accordingly, or if not actually entertained, at least, upon occasion, professed to be entertained. But that, in every instance in which such opinion has been thus professed—impliedly at least professed, it has been really entertained, is itself an opinion the assertion of which, if sincere, will not be found consistent with the plainest common sense: inasmuch as in such an opinion would in many instances be included, the belief of a self-contradictory proposition; such as, that one and the same contract was throughout fair and unfair—one and the same instrument throughout genuine and spurious.‡

In saying, that non-observance of this or that formality is, by this or that judge, regarded or treated as evidence, and that conclusive of unfairness or spuriousness on the part of the instrument in question, all therefore that is here meant to be expressed is—that, if on his refusal to give effect to it, he were to be pressed for a justification—for such an one as, with reference to the ends of justice, should be a rational, and to an unlawlearned and uncorrupted mind an intelligible one,—of this sort is the best or only justification, which he would find himself able to give: in the giving of which justification, sincerity on his part might in some instances be morally possible, but in other instances would be morally impossible.

I speak here of the judge or judges by whom, in the first instance, decisions of the nature here in question have on such grounds been pronounced. But (says a well-known French proverb) Ce n’est que le premier pas qui coute: and in no other line of action, perhaps, has the truth of the observation received such ample exemplification as in judicature. Where, under the name of deference to authority, or under any other name, the adoption of opinions, without examination and upon trust, is made matter of merit, any one opinion is just as easily adopted as any other: the highest wisdom takes a pride in sinking itself to the level of the lowest folly: and now it is that self-contradictory propositions obtain credence, and that not merely with as little difficulty, but even with less difficulty (it will be seen) than is experienced by propositions less directly and palpably repugnant to reason and common sense.

Concerning the justice of the reasoning, by which unfairness or spuriousness is inferred from non-observance of formalities, more will come to be said under the head of Pre-appointed Evidence.*

But according to the intimation, the occasion for which has been so frequent, the truth of the matter is—and by every eye that has nerves to endure the spectacle will be seen to be—that at any rate in the earlier ages of judicature, the ends above described under the appellation of the false ends, have, to English judges, been the main, not to say the sole objects of pursuit:—the true ends, at best but secondary ones:—that for their assistance in that main pursuit, instruments of iniquity, in great variety and abundance, were invented and put to use:† —and that of these instruments, the one here in question, viz. nullification, was one of the most extensively operative, as well as of the most efficient and safe.

§ 10.

In litigation, principal fact want of merits; probative fact, discontinuance of procedure—its fallaciousness.

In every ordinarily and completely constituted and furnished judicatory,‡ every suit or cause has at least two sides, viz. the plaintiff’s and the defendant’s: and if so it be that the number of sides in it is greater than two, the cause, being in this case a complex one, is capable of being resolved into a determinate number of simple causes, each having its two sides and no more.

In the language of natural procedure, on the plaintiff’s side, discontinuance is non-suit—on the defendant’s, non-defence:—in the language of English technical procedure, the place of these two terms is filled by a multifarious vocabulary not wholly different, for which whoever has patience enough may see the books.

Under the technical system, be the side which it may, discontinuance on that side is regarded, or professed to be regarded, as proof—and that conclusive—of want of merits; that is, here, as before, that course is taken which,—to render it reconcilable, if reconcilable it were with justice,—would require a conclusion to that effect to have been formed.

Of the conclusion in this case, the rashness, if it were an honest one—i. e. if such were the opinion really entertained—would be much more egregious than in the instance last mentioned; viz. in which, on the ground of failure in the observance of this or that formality, a contract is convicted of unfairness, or an instrument of contract of spuriousness. Population of England, say ten millions: number of persons capable of carrying on a suit or cause to a conclusion, in the least expensive Westminster-Hall court, on the least expensive plan, not so great as half a million. Accordingly, to the defendant, twenty to one but pecuniary power of continuance may be wanting from the very first: and, as above, frequently will it be so to the plaintiff. As he cannot be such but by his own act, it will not be so at the first: but by accident it may be rendered so at any succeeding stage.

Principal fact here, want of merits: pretended probative fact, discontinuance: infirmative fact,—by the greatly preponderant probability of which the conclusion is rendered erroneous, and the pretence false,—want of pecuniary power of continuance.

When a discontinuance, as above, takes place, would you really wish to know what it has had for its real cause?—consciousness of want of merits?—want of pecuniary power?—or what else? The mode of obtaining from the suitor this information and that, without putting your reasoning powers to rack, can no more be a secret to you, than if, instead of being your suitor, he were your servant or your son. In an ordinary case, ears and tongue alone (or rather ears alone—for of his own accord, if you would but hear him, he would be ready enough to inform you) would be needful to you: or, in an extraordinary case, for epistolary communication, eyes.

But no:—whatsoever is necessary to render it possible for you to do justice, your great object is—not to know it, but to avoid knowing it: such knowledge would be unprofitable: such ignorance has been made profitable:—darkness of course is more pleasant to you than light. See further—as you will, if you cannot avoid seeing—the chapters on the exclusions put on evidence, and in particular, that on the exclusion put in the case of imprisonment for debt.

§ 11.

Probative force of circumstantial evidence, no fit subject for general rules.

Under the English constitution, in one knows not exactly what dark age, a species of judicatory developed itself, in which, in so far as the distinction found hands capable of delineating it, the matter to be decided upon was divided into two portions, on one whereof, as often as it presented itself in a state of separation from the other portion, the persons to decide were a permanently established judge, or bench of judges: while on the other, the persons to decide were, under the name jurors, or jurymen, a number of persons, originally indeterminate, in most instances fixed at twelve, serving in the character of occasional judges, the authority of each set confined to one individual suit or cause.

To the jurisdiction of the permanent, or official judge—the only sort of judge called by that commanding name—was understood to belong, in so far as the separation happened to be made, every decision, the terms of which would be expressive of a general rule—of that sort of proposition which by logicians has been distinguished by the appellation of a general one.

To the authority of the above-mentioned occasional or ephemeral body of judges called jurors, was understood to belong the decision on whatsoever matter came to be subjected to their cognizance, by and under the authority of their learned and authoritative directors—the judges that stood distinguished by the name of judges.

Having constructed this palladium—as it has been so often called—of the constitution, viz. the jury-box,—the same combination of undiscernible causes left, above and in contact with this palladium, a set of men, whose obvious interest, and consequently whose endeavour it has been, to weaken and undermine it.

From the very first—and, as will be seen, not altogether without just cause,—they took upon themselves—these experienced and learned judges—to determine what evidence should, and what should not, be presented to the cognizance of these their unexperienced and unlearned assessors:—but the evidence once presented to them, by these unexperienced and unlearned assessors it was, that the judgment on it was to be formed and pronounced.

Once presented to them? Good. But this or that lot of evidence, suppose it not presented to them by these their directors—what then became of it? Answer—It was decided—and with it commonly the fate of the whole cause determined—by these their directors themselves: with what consistency, as well as with what fruit, will be seen as we advance.

All evidence is either direct or circumstantial evidence. From any evidence that comes under the denomination of direct, it appears not that, on any occasion, they have as yet taken upon themselves to deduce the inference. On the contrary,—so abundant are the instances in which, speaking of evidence in general, the acknowledgment has been made to juries, that to them, and them alone, it belongs to say what credit is due to the evidence, whatsoever it has been, that they have been permitted to hear, and thereupon to deduce the inference from it,—that the reproach of usurpation is universally beholden ready to fall, in the character of an inevitable punishment, on the head of every judge, who should take upon him to attempt the depriving them of this function—this inestimable right—without which their office would be no better than a pernicious sinecure. In regard to circumstantial evidence, the question has never yet been stated—nor, if it were, does it seem possible to find any rational answers to it—why, in this instance any more than in that other, any attempt should be made to take the decision out of these popular hands, by which, in the sort of compound judicatory in question, without a shadow of objection, and amidst universal plaudits, every question, in so far as it turns upon direct evidence, is determined.

Out of these same hands, then, has any attempt been ever made to take the charge of drawing the inference from circumstantial evidence?—avowedly, in the lump, that is, in all cases, and under that name: No: on the contrary, there being few causes in which the nature of the case does not present the two species of evidence in a state of the most intimate union, so it is, that the circumstantial evidence is judged of by them, as of course, along with the direct;—nor, for any such purpose as that of dividing the cognizance between the jury-box and the bench, is any distinction made.

At the same time, so it is, that as often as evidence of the circumstantial kind has presented itself, the business of drawing the inference from it has, as often as such has been his pleasure, been, by the judge, taken out of the hands of the jury, and under the name of matter of law, taken into his own hands; and this with such effect, as, in and by so doing, to determine the fate of the suit or cause.

Between the cases in which the drawing the inference from circumstantial evidence is proper to be left to the jury, and the cases in which it is proper for it, thus to be taken out of their hands by the judge,—has any line been ever attempted to be drawn? Not any. Propriety out of the question, could any line be drawn, distinguishing with any tolerable clearness the cases in which the one course has been taken, from the cases in which the other course has been taken, in actual practice? Impossible. What then is the result? That in this, as in so many other cases, arbitrary will—to say no worse—has been the only guide.

By this sort of assumption, what have been the effects produced on the administration of justice?

1. In each cause taken by itself, has the probability of right decision received any increase?—does any sufficient reason appear for concluding that the inference thus drawn by the judge, was more rational than that which, in that same case, would have been drawn by the jury? On the contrary when the inferences thus drawn come to be looked at, so flagrant will their absurdity and folly be frequently—not to say, most frequently—seen to be, as to preclude the idea that any inference so absurd and foolish could have been drawn by any understanding, not corrupted by that species of half-absurdity, half-nonsense, which among lawyers has received the name of science: and it is under the assurance, that under the guidance of common sense no such inference would be drawn by the twelve unlearned men whom he has to deal with, that the judge has thus taken the business upon himself. Under that assurance? Yes:—and for that very reason: for on the supposition of an expectation on his part, that the inference, and from the inference the decision formed by them, would have been the same as that which it was his desire to see formed: use there would be none, even with reference to his own purposes, in thus taking it out of their hands.—Mischief the first—Producing misdecision in each particular cause, on the occasion of which the assumption in question has been made—the incongruous power exercised.

2. As often as they have been uttered, these assumptions, along with the other acts and discourses emaning from the same learned sources, have been liable to be recorded:* and recorded they have been, in but too many instances: and in this shape, not inconsiderable has been the addition made to the chaos of jurisprudential science.

Ill-grounded with reference to the particular individual case which respectively gave birth to them, these assumptions have, if possible, been still worse grounded with reference to those other suits or causes, to the decision of which, when thus recorded, they have been applied without reserve. With neither of the two facts of which the circumstantial evidence in question is composed, could they ever have had any sort of connexion: they have thus been converted, each of them, into a mine of false inferences, and erroneous decisions.—Mischief the second—Contributing to the composition of an aggregate mass of delusive and pernicious error, under the name of science.

3. By the whole amount of it, the power thus exercised has been a usurpation upon the acknowledged right of juries. By the whole amount of it, it has operated in diminution of that security which is sought for at the hands of juries. By the whole amount of it, it is a violation of that principal support of the constitution so universally acknowledged to be a fundamental one.—Mischief the third—Mischief done to the constitution by violation of the acknowledged rights of juries.

Of the circumstances capable of operating in proof of delinquency, any of them taken singly may be far from being of itself sufficient to warrant a conclusion in affirmance of any inculpative suspicion. At the same time, put but a number of them together, the proof shall be so satisfactory as not to leave room for doubt as to any practical purpose. Instances might perhaps even be found, in which, for the production of sufficient assurance to a duly cautious mind, so small a number as two would appear sufficient. In the several instances in which conviction has taken place on the sole ground of circumstantial, without any assistance from direct evidence, a number considerably greater than two would, it is supposed, be found upon examination to have concurred.

In the cases in which English judges have taken upon them to form conclusions respecting matters of fact, on the ground of circumstantial evidence, it will be found that in every instance it has been on the ground of some one single fact considered in the character of an evidentiary fact;—upon no more than one article of circumstantial evidence that the conclusion has been formed.

It is possible, that in the instance of the individual suit or cause, on the occasion of which, on the single ground in question, a decision has been pronounced, such decision was not chargeable with injustice. Why? Because, though in the formation of that decision, the one circumstance in question was the only circumstance expressly brought to view and mention,—yet it may have happened that the case afforded other evidences, by each of which a part more or less considerable was borne in the formation of the decision so pronounced.

So much for what is possible;—what is certain is, that in every rule by which expression is given in general terms to a conclusion thus formed, all these corroborating circumstances, if any such there were, will be excluded. What is the consequence? That though, on the occasion on which the rule was formed, misdecision did not take place, yet the rule once formed remains and continues operating in the character of a perennial source of deceptious inferences;—in a word, of error and injustice.

Of the conclusion drawn from a fact considered in the character of an article of circumstantial evidence, the effect, if it be by a jury that the conclusion is drawn, never goes beyond the individual suit or cause which has given birth to it. All the other evidence which the suit or cause happens to afford, coming along with it, under their observation, and contributing to the formation of the conclusion, nothing hinders but that, applied as it is to the individual principal fact which alone is in question, the conclusion thus formed may, in each such suit, be right and well grounded.

Drawn by a judge, it most frequently happens that a conclusion conceived in the same terms will be productive of error and false judgment. Why? Because when drawn by a hand so situated, it swells itself out, and constitutes itself into a general rule—and will be thereafter applied to cases in indefinite numbers, and rendered productive of the sort of results just mentioned.

When the conclusion has been drawn by the jury, of the infirmative facts, by which, supposing them to have had place, its probative force would have been weakened or destroyed, none, it may be presumed, have been proved, none so much as probabilized.

In the several cases in which the general rule, containing the expression of the conclusion so drawn as above, will come to be applied by successive judges; whatsoever infirmative facts the case admits of, may have had place in any number: yet of none of them can the existence be brought to view; for the inference, as drawn, is regularly all-comprehensive; nor can any hand but that of a judge presume to narrow it.

Of the conclusion drawn by a jury, the mischief, if it be erroneous, and thence mischievous, goes not beyond that individual case:—Of the same conclusion drawn by a judge, the mischievousness, except in so far as it may happen to it to receive correction from an exceptive rule, operating in contradiction to the former conclusion, comprises a course of error and mischief to the very end of the system.

When fact A is considered as circumstantial evidence of fact B, the inference being made by a judge or bench of judges, and an account of it finds its way into a published law-book, general words being employed in the account given of it; the character in which it is presented, is of course that of a general rule laid down for the avowed purpose of its serving for determination of the decisions to be pronounced in all subsequent similar cases; that is, in each individual case in which for the description of the individual principal fact, and the individual evidentiary fact, which in such individual case, are respectively in question, the same general terms are respectively capable of being employed.

Applied to any such subsequent individual fact, the inference thus made, as described by the general rule formed as above, may have been represented either as absolutely conclusive, or as only primâ facie conclusive, or in other words, conclusive nisi:—as primâ facie conclusive, and no otherwise, if in the enunciation of it, an indication is made of this or that species of fact, as being, in the character of an infirmative fact, capable of annulling the inference, and thus preventing the principal fact in question, if not from obtaining credence from the sole probative force of that evidentiary fact.

In a theoretical view, and for the purpose of affording the clearer conception of the sort of matter of which jurisprudential law is made, this distinction may have its use. But in practice it can scarcely be said to be exemplified, and has little or no influence. For among the prerogatives of an English judge, is that of taking a distinction whenever he pleases—taking a distinction, and thereby applying a limitation, or, what is the same thing, an exception to the general rule whereby to the purpose of the individual case in question, and so to the purpose of each succeeding individual case as it presents itself, the substance of the rule is picked out of it, and the rule left in the state of an empty husk.

If, then, the general rule happen to be to the taste of him to whom in that character it is presented, he simply pronounces it conclusive, and thereupon conforms to it; if not, he pronounces it conclusive primâ facie only, and taking his distinction, leaves the rule inoperative, and for that time sets it aside.

If the effect of the rule be to establish a fact in the character of circumstantial or presumptive evidence of a principal fact, the distinction will be taken by setting up, in the character of an infirmative fact, destructive of the probative force of the evidentiary fact, another individual fact presented at that same time, whether to his senses by testimony, or to his mind by imagination:—Yes, by imagination, for to warrant a man in dissenting from the conclusion indicated by an article of circumstantial evidence, it is not necessary that the possible fact by which the probative or disprobative force of the evidentiary fact is considered as destroyed, should have been proved.

Whether, therefore, the evidence be simply termed conclusive, or said to be conclusive nisi (or in whatever other words the distinction may stand expressed,) it comes in a manner of course to the same thing. By the reporter of the anterior case, let it have been simply styled conclusive—the judge, if it be not his pleasure to conform to the rule, will set up against it some fact, actual or hypothetical, in the character of an infirmative fact: let it have been reported as conclusive primâ facie only, or conclusive nisi, if, in the individual case before him, it be his pleasure to consider it as simply conclusive, he will say as much, refusing to receive, on the individual occasion in question, in the character of an infirmative fact, any individual fact which happens to have been proved, or brought to view as capable of having taken place.

Such is the state of things—such the despotism produced by taking out of the hands of jurors the function of deciding on the question of fact, in so far as the allegation concerning it is considered as proved, disproved, or not proved, by circumstantial evidence. And in this sample may be seen the whole substance of that false science of which the chaos called jurisprudential law is composed.

Along with direct, had the function of deciding upon circumstantial evidence been left to jurors inviolate, there would, so far as concerns the question of fact, have been no such sham learning—no such despotism;—no such distinction, as that between evidence simply and absolutely conclusive and evidence conclusive nisi or primâ facie, would have had place. On each occasion, after hearing whatsoever evidence, direct or circumstantial, could be produced, in the character of evidence probative or disprobative of the fact in question, in the character of the principal fact, the existence of such principal fact would—viz. by the jury—have been affirmed or disaffirmed. In a word, no instance would have had existence, of that sort of general rule, by which, as above, it has been rendered it is hoped pretty apparent, that much mischief has been done, and that no good ever has been, or ever could be done.

§ 12.

Inferences of Judge-made Law.

Sample 1. Legitimacy from Husband’s Non-Expatriation.

Two rules not altogether unconnected with each other;—the one imagined for the purpose of comparison—the other actually expressed in English judge-made law, may here serve for illustration:—

1. Principal fact, sexual intercourse; evidentiary fact, parturition;—the inference deemed absolutely conclusive.

This may be set down as one of the few imaginable instances in which a general rule pronouncing one species of fact conclusive with regard to the existence or non-existence of another species of fact, is not in danger of doing mischief; viz. by leading judges into decision manifestly ill grounded. But of what possible use can such a rule be? Where is the judge, where is the jury, who, but for the instruction afforded by this rule, would be in danger of mistake?

Of this kind is every judge-made rule of circumstantial evidence which is not in its tendency in a preponderant degree deceptious and pernicious.

2. Principal fact, the husband is the father of the child of a married woman: evidentiary fact, abode of the husband and wife, during some part of the period of gestation, in some part of the island of Great Britain. Inference deemed absolutely conclusive:—so conclusive that no evidence tending to the contrary persuasion shall be received.*

Here we have an example of a rule of circumstantial evidence, which at one time at least was received as an established rule of English law. True it is, that after having continued in force many hundred years, this rule was reversed.† But by the same authority by which the good old rule was reversed, the reversal itself may be reversed at any time. At any rate, as an example, it is as good as ever it was.

The absurdity of the rule is almost too palpable to admit of illustration. During the whole length of time in question, the husband may have been bed-ridden in the last stage of caducity at the northern extremity of Scotland; the wife living in adultery at the southern extremity of Cornwall. Yet the husband was the father of the child of the wife, said the wisdom of these sages.

This law—for such it was in effect—this law, it is almost superfluous to say, is upon the face of it an insult to common honesty, as well as common sense. The object of it, if it had any, could not have been any other than the encouragement of adultery, by casting upon the injured husband the burthen of maintaining the spurious issue. On this supposition, it was a law made by the common-lawyers, to make business for themselves and another set of lawyers—the civilians, the practisers in the spiritual courts.

But in its origin, suppose it to have had any the least show of reason, it must have been in some such way as follows:—On the occasion or cause which gave birth to this general rule, so it was, that though, during the time in question, the ordinary abodes of the husband and the wife were at a considerable distance from each other, yet, for anything that appeared to the contrary, access and intercourse might have taken place.

For justifying the decision which, on the occasion of the individual suit or cause in question, it was determined to pronounce, a general rule was, as usual, deemed necessary to be stated as already in existence—in reality, to be made.

Coupled with the reasoning on which it may thus have been grounded, it may have been expressed in words to some such effect as follows:—“When, in the case of husband and wife, access has not been impossible, it is better to presume it to have had place, than by means of any direct testimony to attempt to scrutinize into the question, since, if the parties have lived in a certain space, within a certain distance of each other, no man can say that no intercourse can by possibility have taken place. But where shall the limits of this space be found? The island, within which the jurdisdiction of Westminster Hall has its geographical field, is surrounded by the sea: let this island be the space; the sea will then be the limits drawn by nature: suppose the sea divided into four portions, and speak of the four seas, season the rule with Latin, say quatuor maria, and who is there that shall gainsay it.”

Here, then, we have the general rule, and now for the application:—

In cause A, as above, reason more or less there may have been for supposing it possible that between the parties in question, intercourse did take place. Comes now cause B, on the occasion of which it becomes manifest, that within the time in question no such intercourse did actually take place: none perhaps could by any possibility have taken place. No matter: a rule has been made—a rule of law concerning evidence, by which this question has been determined. “We are ready to prove,” say the counsel for the husband, “that the husband was never, during any time at which the child could have been begotten, within fifty miles of the wife.”—“Nay,” say the counsel on the other side, “this is what you cannot be permitted to prove, for the law in its wisdom has decided the matter against you; you and we were within quatuor maria all the time, and therefore you are the father of the child.”

Between the individual principal fact in question in cause B, and the individual fact or mass of facts taken from cause A and applied to cause B to be employed in it, in the character of an evidentiary fact probative of the said principal fact there is not by the supposition any sort of connexion whatsoever.

Evidentiary fact A took place at the beginning of sixteenth century—principal fact B not till the eighteenth century. No matter: borrowed from cause A, fact A is taken, and in the character of an evidentiary fact applied to the fact in question, in the character of a principal fact, on the occasion of cause B; and of this evidentiary fact, the probative force is deemed conclusive. In the cause which was decided, anno 1510, it was not proved that John Stiles could not have had access to his wife. Mary Stiles, so as to be the father of her son William: therefore, in the cause that now comes to be decided, anno 1790, it ought to be considered as proved that Nicholas Nokes is the father of Nathaniel, the son of his wife Elizabeth Nokes. Such is the logic, as often as, for determining a question of fact on the ground of circumstantial evidence, recourse is had to a general rule.

Had admission been given to the evidence belonging to the cause, the impossibility of any such genesis would have been proved by circumstances in abundance; but to save the trouble of hearing evidence, or for some other purpose, the law has laid down a rule, in virtue of which, as often as it is applied for determining whether, in the case in question, the fact which is in question did or did not take place, the evidence to be admitted and considered is not any evidence which this individual cause actually affords; but the imagined evidence which is supposed to have been afforded in and by this or that other cause which had nothing to do with it.

Upon the ground of some imagined evidence, supposed to have been delivered, relative to some one fact, in a case which has nothing to do with it, is the case in question determined, to the exclusion of all such evidence as properly belongs to it. Such has been the wisdom of those sages, as often as, for fear of that deception to which simple men in the situation of jurors are exposed, it has pleased them to take the business of determining a question of fact out of those inexperienced hands:—“Judging from evidence, simple men as you are, you would be misled by it;—to save you from error, we,” say these sages, “will take the question into our own hands, and decide it for you without evidence.”*

Sample 2. Malice from Homicide—Murder from Malice.

To any man, without any such wish, has it been your misfortune to have been the cause of death? To save to the jury the trouble of inquiring under what circumstances, and the danger of being deceived by evidence, the judge, if such be his pleasure, will find you guilty of murder, and so order matters that you shall be hanged for it. If on your part there has been malice, your doom is predetermined: murder has been your crime—death will be your punishment. Would the jury, had the inference been left to them, have found in your bosom any such thing as malice? This is of the number of those things which they are not to be trusted with.—This or that judge, who has been dead these two or three hundred years, knows more of the matter than they;—and by implying malice in your bosom, he who knows nothing about you or your case, he it is who has saved them the trouble of thinking whether any such thing as malice, whatever be meant by the word, had in your case any existence.

But what is meant by it? The same thing that is meant by so many other words, such as felony, felonious intent, and so forth: on the part of those sages, a disposition, they cannot tell, or care not to tell why, to cause you to be hanged:—to be hanged as well as all such other persons to whom it shall happen to be in your case;—in plain English, in whose instance, it may happen to any successor of these sages to be disposed to have them hanged. Such is the safety of the subject, under the dominion of what, in contradistinction to statute, is called common law.

And thus most conveniently open to despotism is the field, where, in the text of the law, real or supposed, there is an expression which should have been indicative of the matter of fact, or of a portion of the matter of fact, of such a texture as to indicate, so extreme is its generality, nobody can exactly say what. Such is the case with the word malice in the essential phrase, of malice aforethought:—in the original Latin ex malitii præcognitâ:—in the tenor of the established instrument of accusation, the indictment, as it is called.

In every mouth but a lawyer’s, malice means neither more nor less than a particular modification of ill-will; in a lawyer’s, on the present occasion and for the present purpose, for no better reason than because malice is, by substitution of an English to a Latin termination, derived from malitia, and malitia is derived from malus—by which in Latin is denoted everything that is thought or pretended to be thought bad—it is made to denote anything, for which, in the character of a bad thing, he feels himself disposed to put a man to death.

Of malice, according to the indictment, the supposed existence was necessary. But in proof of this essential matter of fact, according to the doctrine of some reverend and learned person who wanted to destroy a man, of whom, in the eyes of a jury, it would, it was feared, not appear fit that he should be destroyed, it was not necessary that any prohability should be presented by evidence. Presuming is shorter than proving:—power more pleasant than impotence: and so, because it had not been proved to the jury, it was presumed by the judge.

“Killing (in the words of Gilbert) is so bad a thing,—so ill-natured and bloody an action,† that it is to be presumed to be malicious;” that is, all killing is to be presumed to be murder, and punished, on the supposition of its being murder,—punished as murder. In this case, the physical matter of fact is by the supposition out of the question, as well as the share which the defendant had in the production of it: in this same case, who does not see that of the existence of the psychological matter of fact, the state of the mind, the supposition is not less uniform? But to save trouble, and to save the risk of an unacceptable verdict, especially when innocence happens to be manifest, this, instead of being proved to, and found by, the jury, is, on the mere ground of the physical fact, to be presumed by the judge.

All this while, in a case in which it is his pleasure to reduce the punishment, and for that purpose call the offence manslaughter, the physical fact has been exactly the same—the share which by his physical organs the defendant has had in the production of it exactly the same—and yet the psychological fact is not thus presumed from it.

Thus, then, stands the matter:—When it is his pleasure the defendant should be destroyed, the judge draws the inference, and calls the offence murder: when it is his pleasure the man should not be destroyed, he leaves the inference undrawn, and calls the offence manslaughter. But in his zeal to destroy somebody, who, though the jury would have thought otherwise, it must be presumed deserved to be destroyed, Gilbert, who on this occasion is the representative and mouthpiece of the learned tribe, forgets that there was any such distinct thing as manslaughter, and that, according to the account thus given of the matter by himself, murder and manslaughter are exactly the same thing.

Note here, that as above, when malice means anything in particular, i. e. in the sense in which it is used in every other mouth than a lawyer’s, it means ill-will—ill-will towards him who is the intended object of it, and is intended to be made the sufferer by it. Note at the same time, that in a case which is but too frequently exemplified, as towards the person who has been not only the eventual, but the intended sufferer, there has not existed in the breast of the author of the death any such emotion or affection as that of ill-will. This is where the object which the crime has for its purpose to procure is the gratification looked for in any shape or from any other source than the contemplation of the suffering produced in the breast of the party injured. Such is the case where death is produced by assault, made in prosecution of a plan of forcible depredation; for example, in a house* or on the highway.

Such is, in even a more particular degree, the case, where the murder has had for its object the acquisition of the matter of wealth in any shape—in the way of succession, as in the instance of the parricide committed at Reading in 1752, on the person of her father, by Mary Blandy. In the breast of that not altogether ill-educated female, the unvaried tenderness of her father had not failed altogether to keep alive, even to the last, some sparks, however faint, of a correspondent affection; but by the violence of her passion for her lover, by whose instigation she committed the crime, the gentler affection had been subdued. In neither of these cases was the crime-producing interest, the interest of the gall-bladder in one of them, it was the interest of the purse; in the other, the interest of the sexual appetite.

Now these cases in which, law jargon apart, there existed not the least spark of any such affection as malice, are precisely the cases in which the mischief of murder rises to the highest point of the scale. Why? Because these are both of them of the number of the cases in which, in respect of probability, the danger of becoming sufferers by the sinister operation of the interest in question in the character of a motive, is in the apprehension of persons in general apt to rise to the highest pitch. In both cases, of the aggregate mischief of the offence, that part which has been distinguished under the name of the mischief of the second order,—i. e. the general part of the mischief, and which, in respect of extent, measured by the number of the persons exposed to it, is to that of the mischief of the first order, i. e. the particular part of the mischief, comparatively speaking, as infinity to one;—is far greater in those cases where, ordinarily, and properly speaking, there is no malice, than when, in the same sense, in the breast of the offender, the offence has had malice for its sole cause.

Putting together these two cases, viz. this relative to murder and malice, the other relative to legitimacy on the part of the child of a married woman—the one belonging to the penal, the other to the non-penal division of the field of law—each of them in its department a case of considerable importance; some conception may be formed of the process by which the rule of action is formed, when the hands by which it is formed are those of a judge, or bench of judges, acting as such; and of the shape in which it is produced, in so far as a nonentity is susceptible of shape.

In neither case any such conception manifested, as that law is or ought to be an instrument employed towards a determinate end—or at least, that if it be, the greatest happiness of the greatest number is that end. If it had any such end, then and then alone would come the inquiry, what were the operations employed in the character of means with reference to that end, and in what respects, they were respectively conducive or non-conducive to it. But in the present instance, no such end being perceptible, all inquiries in relation to means are manifestly inapplicable.

Such as are these two samples, together with the others which occur here and there in the course of this work, such it may, without danger of the imputation of injustice, be said is judge-made law throughout. In each case, by some view suggested by that particular case (never by any such general view as that of picking out grosser from less gross specimens of absurdity) has the selection been made. In addition to its absurdity, it would be found throughout (not from beginning to end, for it has neither) a tissue of inconsistencies; and in this respect, as Ovid would have said, it is consistent.

Such is the nature, such the result of law, i. e. the imaginary thing to which is given the force of law, penal or non-penal, when tumbled out by judicature, substituting itself to legislation, or overruling legislation: the mode employed, that mode in which the unalterable nature of things places the work, in whatsoever hands, under the impossibility of being done well. Matter of law made after the fact, after the fashion of ex-post facto law,—made under the quibbling pretence of being declared. Matter of fact decided upon by abuse of words;—decided upon without evidence, or by this or that scrap of evidence caught up blindfold from some anterior case, known or unknown, and applied to facts of which those, whose testimony it was, could have had no knowledge. Legislator’s power exercised without authority;—judicial power exercised in the teeth of principle;—the sceptre filched from the king in parliament, and the balance wrested from the hands of juries.

Thus much as to substance: as to language, in jurisprudence and legislation, things are no more capable of being by anybody shown to be what they are in and by that part of the English language which has been poisoned by the mouths or the pens of English lawyers, than in chemistry they could ever be by Sir Humphrey Davy, if he were confined to the language employed by those who in former times occupied the place of chemists, the united brotherhood of impostors and dupes called alchemists.

[* ]In the case where the delinquency is considered as rising to criminality (not that between this superior part, and the inferior part or parts of the scale, any precise line has ever been attempted to be drawn,) inculpative facts might be termed criminative;—disculpative, with less felicity, disincriminative, not discriminative, that being already appropriated to a very different purpose.

[† ]Under this head, the Austrian criminal code, established during the reign of Maria Theresa, was found to afford considerable assistance. Understand, so far as concerns criminative facts; for as to infirmative facts, here as elsewhere all was blank.

By several English trials, and in particular by that of Captain Donnellan for murder by poison, and that of John Hill, better known by the name of Jack the Painter, the list has been augmented, and illustrative exemplifications afforded.

[‡ ]See Principles of Penal Law, Part III. Ch. XV.

[* ]Examples:—Under the name of a witch, a woman mounting aloft in the air, without any other help than that of a broomstick:—a man who has forced himself into a quart bottle.

Laws of nature violated:—1. The universal law of attraction violated, without adequate assistance from any of those minor forces, such as magnetism, gaseous repulsion, or elasticity, &c. which by antagonizing with it, give to the objects which surround us, the situation and condition made known to us by experience; 2. In the case of the human species, the laws of the animal economy.

[† ]Examples:—Men (say) above nine feet in height, under the name of giants; 2. Men (say) above 200 years of age.

[‡ ]Examples:—1. Serpents with wings, under the name of dragons; 2. Men with wings, under the name of angels;—mermaids,—men with fishes’ tails instead of legs and thighs.

[* ]Consequent, for example, in common-law language, the judgment; in equity-law language, the decree:—antecedent, (the first, or among the first)—in common-law language, the writ or the declaration; in equity-law language, the bill.

[* ]See Chapter XIV. Pre-appointed Evidence: Ch. XIX. XX. and XXI. Exclusion, &c.

[† ]Book of Authentications and De-authentications, infra Ch. XXIV.

[‡ ]Example:—One and the same testament, void as to estate called real estate—valid as to estate called personal estate.

[* ]See Chap. XIV. Section 6.

[† ]Exceptions:—1. Court of Claims:—Judicatory having cognizance of claims made by individuals on the public. Example:—For claims made by the American loyalists on the score of their losses by the war which ended in the independence of the United States. The suit here is unilateral: sole party, the claimant, i. e. the plaintiff: the function of defendant being placed in the same hands as that of judge,—consolidated with that of judge.

2. Audit Courts:—Judicatories established for exacting repayment, or proof of discharge, from receivers of public money. Suit, here again unilateral: function of plaintiff, in the same hands with that of judge: as under the system of procedure styled inquisitorial, pursued frequently in penal causes in German judicatories.

In both instances, for the purpose of responsibility, might it not be an improvement, if some official person were to be charged with the functions of the suitor, on the side on which the station of the suitor is vacant?

[‡ ]See note † in previous column.

[* ]In the printed books of reports.

[* ]See Co. Litt. 244; Bl. Com. I. 445.

[† ]Com. Str. 925, 1076; B. R. H. 379.

[* ]All this while, Common Sense has been bursting with impatience. “The man and wife themselves have probably some knowledge how the case was. Why not ask them? why prefer vague conjecture?” “No (says Common Law:) that would be against our rules:—what in your eyes is the best evidence, in our eyes is no evidence at all.” But this belongs to the topic of Exclusions, of which further in its place.

[† ]On Evidence, p. 234.

[* ]For example, the murders at Wapping in 1812.