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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 XVIII.

OF DERIVATIVE, INCLUDING TRANSCRIPTIOUS, RECORDATION, WHEREIN OF REGISTRATION.

§ 1.

Derivative Recordation or Registration, its uses.

A contract (suppose) is entered into,—an agreement—a conveyance—a last will made,—the dispositions of which it is to consist settled,—the words expressive of those dispositions committed to writing:—the operation of writing finished, the paper, parchment, or other substratum, on which the written characters stand expressed, becomes thereby an instrument of contract. This done, by this same operation, a sort ofrecordation, which may be termed original recordation, is performed. Grounded on this, deduced from this, any act of recordation or registration (for the terms are synonymous, or nearly so) may, with reference to it, be termed derivative;—and, in so far as the words of the original are copied without variation, transcriptious: as to the uses of this operation, considered in a general point of view, it will be seen that they bear a necessary reference to the different descriptions of persons, in favour of whom, or at the charge of whom, the operation, and its product, may be attended with effect.

1. To parties and their representatives, it may be of use, for security against any of those accidents to which, in private hands, it is the destiny of such originals to be exposed.

2. To third persons, the principal use is as against parties and their representatives; the third persons in question standing, or having it in contemplation to stand, in the relation of creditors or purchasers to one or more of the parties.

To an extent more or less considerable, the ground of pecuniary credit being necessarily composed of the style and mode of living, and apparent habitual expenditure of the party to whom credit is given, the use here is—to preserve creditors from those frauds and disappointments which have place when the property to which they trusted is clandestinely dissipated, or without equivalent transferred to other hands.

Not to speak of those financial uses, which, in so copious a stream, have under all governments been derived from this source,—in the character of collateral uses, those above mentioned, under the appellation of statistic, are too obvious to require in this place any further notice.

§ 2.

To what Instruments applicable.

To what instruments is this process applicable? Understand always with preponderant advantage. Answer: To all in general, saving exceptions grounded on special reasons.

And those reasons,—what are they?—Answer: Delay, vexation, and expense. On this, as on so many other occasions, by these instructive words the instrument is presented, by which, and by which alone, the line can ever with propriety be drawn between what is useful, considered with reference to a particular purpose, and what is useful upon the whole.

On the one hand, the services capable of being rendered to justice by this operation being understood;—on the other hand, the mass of collateral inconvenience, of which delay, vexation, and expense, are the component elements, being also understood:—which of the two quantities is to be deemed preponderant? Under the head of delay may be considered, either the mere consumption and loss of time (which, however, in the case of a person depending, as do the bulk of mankind, for subsistence on some profit-seeking occupation, is equivalent to expense,) or inconvenience in the same shape, with the addition of any such losses and disadvantageous incidents (including loss of opportunities of positive gain,) as may be liable to take place within the compass of that same portion of time.

To the head of vexation, inconvenience in those same shapes may, with still more direct and obvious propriety, be referred, if the effect alone being considered, the circumstance of time, considered in the character of the cause, be laid out of the account. So far as it comes under this description, the vexation liable to be found included among the results of the operation in question, may be termed vexation at large.

Vexation, in a shape in which it may be distinguished by the appellation of special vexation, is that which, in the sort of case in question, is liable to be produced by disclosure: disclosure of the pecuniary and other domestic and private concerns of the parties interested.

As affording an instance, in which, partly in respect of delay, partly in respect of vexation at large, the inconvenience resulting from the operation in question seems to be in a pre-eminent degree likely to be found preponderant, three species of contracts may here be brought to view:—draughts on bankers, bills of exchange, and circulating promissory-notes.

As affording an instance in which, in the shape of special vexation, the sort of disclosure inseparable from the operation is liable to be productive of inconvenience, and that inconvenience to be, or at least to be thought to be, preponderant, the case of last wills may, in like manner, be brought to view.

§ 3.

The obligation of Registering, how enforceable?

Where the performance of this operation is thought fit to be rendered obligatory—as, saving exceptions such as the above, in all cases where, for want of it, creditors or purchasers are liable to be defrauded, it surely ought to be;—by what means shall the fulfilment of the obligation be provided for?—and, in particular, shall nullification be of the number of these means?

Here, as elsewhere, the answer will depend partly upon the facility given to the operation, partly upon the certainty of the obligation being present to the mind—to the minds of those on whom, in case of non-fulfilment, the burthen of the suffering which results or is made to result as a consequence from such failure, comes to be imposed.

Sometimes improbity, more frequently indolence, perhaps indolence or negligence, are the obstacles which the obligation will have to contend with.

Employing punishment to surmount the obstacle, common honesty, under the guidance of common sense, naturally would apply the remedy to the person of that individual, and that individual alone, in whose transgression the mischief found its cause. Different, far different, has been the course taken by English lawyers. The transgression (it is manifest) is the transgression of the professional agent, manager, and adviser, leaving him untouched, nullification, instead of that, casts the punishment in every case upon some individual or other in the character of a client—upon him in whose instance ignorance and guiltlessness are always natural, ignorance, generally invincible and unavoidable—upon him, or his still more helpless representatives.

Not that even upon the transgressing law-adviser the punishment would be just, unless the directions were so clear, that without improbity or culpable negligence on his part, transgression could not have place. But, if the directions be not intelligible, or not so much as communicated to the professedly learned few, how should they be known to the ignorant and helpless multitude?

§ 4.

The Function, by whom performable.

If in England, as before the revolution in France, the professional agent, manager, and adviser, were, under the name of the notary, considered upon the footing of a public officer, his office might of itself with great facility be rendered, to the purpose of all instruments in which he was concerned, a sort of register-office;—in that case, and for that purpose, appropriate forms of book-keeping might by law be prescribed to him, with apt penalties in case of non-observance. Transmitted from these dispersed and occasionally ambulatory offices, to a fixed central one, duplicates would at the same time serve to secure compliance to the regulations, and minister to the general statistic purposes.

In proportion as the law of contracts was rendered determinate, intelligible, and clear, parties would be enabled, and naturally disposed to exempt themselves from the expenses of calling in, as at present, the assistance of a professional notary, or the humiliation of begging that of an honorary one. But if among the instructions contained in the printed border of the promulgation-paper, on which the contract is here supposed to be written, the non-appearance of the name of a notary on the face of an instrument were set down as a cause of suspicion, the custom of taking the benefit of such assistance would scarcely, in that case, be expected to lose anything of that constancy which belongs to it at present.

And surely, if by fixation and simplification of the service, as above proposed, the quantum of the remuneration were confined within the bounds of that moderation, of which, in the nature of the case, it is not unsusceptible, the expense, considering the degree of security that might be attached to it, is such as need not be grudged.

§ 5.

Quantity of Matter to be entered in the Registry.

Of the matter of each such instrument, what portion shall be subjected to this process? Here again, for the answer, recourse must be had to the so often mentioned triad. But for that cluster of opposing considerations,—the whole;—these considerations taken into the account, such parts as are called for with a predominant energy by the respective uses above indicated.

Meantime, in and by this answer, on the part of an instrument of the kind in question, the supposition of the existence of distinguishable parts is involved. Unfortunately, any more than a mathematical point, a chaos has no parts. To be in respect of, and to the extent of, such and such of its parts, subjected to registration, an instrument must in its form be composed of parts capable of being distinguished, denominated, and numbered: but, in the compound of mendacity, surplusage, and misrepresented truths, in which, in an instrument of contract in the English style, the small proportion of efficient matter, to keep it from being intelligible to those whose everything depends upon its being understood, is dissolved and drowned, effectual care has been taken that there shall be no parts.

§ 6.

Means of securing Transcripts against Error.

To possess so much as a single transcript exempt from the possibility of error, is a blessing which not many centuries ago would have been pronounced fabulous. Means of realizing this prodigy to any extent have now, for some years, been in familiar use. In three perfectly distinct modes has modern ingenuity furnished the means of producing this desirable effect.*

If in the article of dispatch the advantage should in the instance of these ingenious inventions, any or all of them, be found to fall short in any degree of what at first view might have been expected, the advantage in respect of authenticity and security surely is of that sort from which no defalcation can be to be apprehended from any the severest scrutiny.

This is not the place for any such thing as an exposition in detail of the facilities that might thus be afforded to the business of derivative registration;—moderate is the share of reflection that would suffice, it is supposed, to render it superfluous.

§ 7.

Registrar’s duty in respect of Registration.

In so far as the interest of creditors is concerned, the extent given to the application of this instrument of security will depend upon, and be in proportion to, the degree of probity that has place in that governing body, on which the condition of the aggregate mass of the community, on this and so many other particulars, depends.

Unfortunately, in this country it has been found composed in no small proportion—and that (strange to think) upon trial actually a preponderant one—of men in whose eyes the faculty at least, if not the art, of carrying on the operation of swindling with effect and impunity, upon a large scale, was too valuable to be parted with.

Under the English law of property, for the joint convenience of the members of the predatory profession, and of the fraudulently disposed individuals of the higher orders, so happily are matters disposed, that, on condition of giving to his property a certain shape,—on condition of laying out the profits of dishonesty in the purchase, for example, of land,† or even keeping his property in that shape,—a man finds himself, to an unlimited amount, empowered by law to cheat his creditors:—By rich men calling themselves Christians, with the countenance and protection of men of law calling themselves Christians, jewels of gold and silver are borrowed, and Christians are legally and regularly spoiled without redress.

Not many years ago, the question was fairly put. Noble lords and honourable gentlemen—shall they, as well as trading men, continue in possession of the means of cheating their creditors? The answer was: Trading men, no:—but in the hands of noble lords and honourable gentlemen, the power of cheating—the jus fraudandi—was a privilege too valuable to be parted with.†

By any system of registration, in proportion to the extent given to it, the swindling licence thus established and confirmed would, it is manifest, be proportionally trenched upon and infringed. Under the principles, the triumph of which was on that occasion displayed, it may be imagined what sort of reception a plan of general registration would have met with.

[* ]1. Multiplication by impression from writing.

2. By and during the act of writing, multiplication by pens moved at the same time, by the same hand:—

3. During the act of writing, by one and the same pen, communicating the impression at the same time to different strata of paper, one under another.

[† ]By 3 and 4 William IV. c. 104, freehold and copyhold lands are now made liable, in courts of equity, to simple contract debts, after specialty debts are paid.