- Errata—vol. VI. *
- An Introductory View of the Rationale of Evidence; For the Use of Non-lawyers As Well As Lawyers.
- Chapter I.: Title-page Justified.
- Chapter II.: Relation of Law to Happiness—of Procedure to the Main Body of the Law—of Evidence to Procedure.
- Chapter III.: Ends of Justice On the Occasion of Judicature. *
- Chapter IV.: Duties of the Legislator In Relation to Evidence.
- Chapter V.: Probative Force—whence Measured—how Increased—how Diminished.
- Chapter VI.: Degrees of Persuasion—thence of Probative Force—how Expressible.
- Chapter VII.: Causes of Trustworthiness and Untrustworthiness In Testimony—thence of Belief and Unbelief.
- Chapter VIII.: Of the Securities For Trustworthiness In Evidence.
- Chapter IX: False Securities For Trustworthiness In Evidence—oaths and Exclusions.
- Chapter X.: Of the Reception and Extraction of Evidence, Viz. With the Help of the Above Securities.
- Chapter XI.: Collection of Evidence—english Practice.
- Chapter XII.: Of Circumstantial Evidence.
- Chapter XIII.: Of Make-shift Evidence.
- Chapter XIV.: Of Preappointed Evidence.
- Chapter XV.: Difference Between Preappointed and Unpreappointed Evidence.
- Chapter XVI.: Preappointed Official Evidence.
- Chapter XVII.: Extempore Recordation, How Applicable to Legally Operative Facts At Large.
- Chapter XVIII.: Of Derivative, Including Transcriptious, Recordation, Wherein of Registration.
- Chapter XIX.: Exclusion of Evidence.—general Considerations.
- Chapter XX.: Exclusion Continued—causes For Which It Is Proper Or Not, According to Circumstances.
- Chapter XXI.: Exclusion Continued—causes For Which It Cannot Be Proper.
- Chapter XXII.: Exclusions By English and Other Laws—analytic and Synoptic Sketches.
- Chapter XXIII.: Safeguards Against Suspicious Evidence: Including Instructions Concerning the Weighing of Evidence.
- Chapter XXIV.: Authentication and Deauthentication, As Applied to Preappointed and Other Written Evidence.
- Chapter XXV.: Exclusion and Nullification Applied to Contractual Matter, In So Far As Writing Has Been Omitted to Be Employed In Giving Expression to It.
- Chapter XXVI.: Of the Exclusion and Nullification of Contractual Matter, Informally Though Scriptitiously Expressed, In a Transaction Which Has Been the Subject of Matter Formally Expressed.
- Chapter XXVII.: Imprisonment For Debt:—disguised Exclusion of Evidence Involved In It.
- Chapter XXVIII.: Of the Burthen of Proof: On Whom Shall It Lie?— (a Question Produced By Undue Exclusion of Evidence.)
- Chapter XXIX.: Evidence Considered In Its Relation to This Or That Fact In Particular—why Discarded From This Work.
- Chapter XXX.: Evidence In Relation to Particular Facts and Pleadings Under Technical Procldure.
- Chapter XXXI.: False Theory of Evidence (gilbert’s * )—its Foundation:—precedence Given to Written Before Unwritten.
- Chapter XXXII.: Liberalists and Rigorists—parties Belligerent In the Field of Jurisprudence, and In Particular of Evidence.
- Chapter XXXIII.: Conclusion.
- Appendix A.: Cautionary Instructions Respecting Evidence, For the Use of Judges.
- Chapter I.: Propriety of Cautionary Instructions, In Preference to Unbending Rules.
- Chapter II.: Considerations Proper to Be Borne In Mind In Judging of the Weight of Evidence.
- Chapter III.: Considerations Respecting the Effects of Interest In General Upon Evidence.
- Chapter IV.: Considerations Respecting the Effect of Pecuniary Interest Upon Evidence.
- Chapter V.: Situations.
- Chapter VI.: Makeshift Evidence.
- Chapter VII.: Scale of Trustworthiness.
- Chapter VIII.: Best Evidence, What?
- Chapter IX.: English Law Scale of Trustworthiness.
- Appendix B.: of Imprisonment For Debt.
- Section I.: Its Inaptitude As an Instrument of Compulsion.
- Section II.: Its Inaptitude, Applied As It Is As an Instrument of Punishment.
- Section III.: Its Needlessness Demonstrated By Experience.
- Section IV.: End, Or Final Cause of the Institution—judge and Co.’s Sinister Interest.
- Section V.: Means Employed—mendacity and Usurpation.
- Section VI.: Affidavit Previous to Arrest, Its Unfitness.
- Section VII.: Consequence of the Exclusion Thus Put Upon Evidence.
- Section VIII.: Advocates For the Abolition of Imprisonment For Debt—their Errors.
- Section IX.: Scotch Law—cessio Bonorum, Its Inadequacy.
- Section X.: Agenda—course Proper to Be Taken On the Occasion of Insolvency.
- Appendix C.: False Theory of Evidence—(gilbert’s.)
- Rationale of Judicial Evidence, Specially Applied to English Practice. From the Manuscripts of Jeremy Bentham, Bencher of Lincoln’s Inn.
- Prospective View.
- Book I.: —theoretic Grounds.
- Chapter I.: On Evidence In General.
- Chapter II.: Of Evidence Considered With Reference to a Legal Purpose; and of the Duties of the Legislator In Relation to Evidence.
- Chapter III.: Of Facts—the Subject-matter of Evidence.
- Chapter IV.: Of the Several Species Or Modifications of Evidence.
- Chapter V.: Of the Probative Force of Evidence.
- Chapter VI.: Degrees of Persuasion and Probative Force, How Measured.
- Chapter VII.: Of the Foundation Or Cause of Belief In Testimony.
- Chapter VIII.: Modes of Incorrectness In Testimony.
- Chapter IX.: General View of the Psychological Causes of Correctness and Completeness, With Their Contraries, Incorrectness and Incompleteness, In Testimony.
- Chapter X.: Of the Intellectual Causes of Correctness and Completeness In Testimony, With Their Opposites.
- Chapter XI.: Of the Moral Causes of Correctness and Completeness In Testimony, With Their Opposites.
- Chapter XII.: Ground of Persuasion In the Case of the Judge—can Decision On His Own Knowledge, Without Evidence From External Sources, Be Well Grounded?
- Book II.: —on the Securities For the Trustworthiness of Testimony.
- Chapter I.: Object of the Present Book.
- Chapter II.: Dangers to Be Guarded Against, In Regard to Testimony, By the Arrangements Suggested In This Book.
- Chapter III.: Internal and External Securities For the Trustworthiness of Testimony Enumerated.
- Chapter IV.: On the Internal Securities For Trustworthiness In Testimony.
- Chapter V.: Of Punishment, Considered As a Security For the Trustworthiness of Testimony.
- Chapter VI.: Of the Ceremony of an Oath, Considered As a Security For the Trustworthiness of Testimony.
- Chapter VII.: Of Shame, Considered As a Security For the Trustworthiness of Testimony.
- Chapter VIII.: Of Writing, Considered As a Security For the Trustworthiness of Testimony.
- Chapter IX.: Of Interrogation, Considered As a Security For the Trustworthiness of Testimony.
- Chapter X.: Of Publicity and Privacy, As Applied to Judicature In General, and to the Collection of the Evidence In Particular.
- Additional Notes to Books I. & II. Chiefly With Reference to Alterations Made In the Law Since the Date of the First Edition,— Viz. 1827.
- Book III.: Of the Extraction of Testimonial Evidence.
- Chapter I.: Of the Oral Mode of Interrogation.
- Chapter II.: Notes, Whether Consultable?
- Chapter III.: Of Suggestive Interrogation.
- Chapter IV.: Of Discreditive Interrogation.
- Chapter V.: Of the Demeanour of the Adverse Interrogator to the Witness, Considered In Respect of Vexation.
- Chapter VI.: Of the Notation and Recordation of Testimony.
- Chapter VII.: That the Evidence Should Be Collected By the Same Person By Whom the Decision Is to Be Pronounced.
- Chapter VIII.: Five Modes of Interrogation Compared.
- Chapter IX.: Epistolary Mode of Interrogation, In What Cases Applicable.
- Chapter X.: Epistolary Mode of Interrogation, How to Apply It to the Best Advantage.
- Chapter XI.: Helps to Recollection, How Far Compatible With Obstructions to Invention?
- Chapter XII.: Of Re-examination, Repetition, Or Recolement.
- Chapter XIII.: Of Spontaneous Or Uninterrogated Testimony.
- Chapter XIV.: General View of the Incongruities of English Law In Respect of the Extraction of Evidence.
- Chapter XV.: Mode of Extraction In English Common-law Procedure—its Incongruities.
- Chapter XVI.: Mode of Extraction In English Equity Procedure—its Incongruities.
- Chapter XVII.: Mode of Extraction In English Ecclesiastical and Admiralty Courts—its Incongruities.
- Chapter XVIII.: Incongruities of Roman Law In Respect of the Extraction of Evidence.
- Chapter XIX.: Of Confrontation Under the Roman Law.
- Chapter XX.: Recapitulation.
- Book IV.: Of Preappointed Evidence.
- Chapter I.: Of Preappointed Evidence In General.
- Chapter II.: Of Instruments of Contract In General.
- Chapter III.: Of the Enforcement of Formalities In the Case of Contracts.
- Chapter IV.: Formalities, What Proper, and In What Cases?
- Chapter V.: Of Wills, As Distinguished From Other Contracts.
- Chapter VI.: Of Preappointed Evidence, Considered As Applied to Laws.
- Chapter VII.: Of Public Offices At Large, Considered As Repositories and Sources of Preappointed Evidence. *
- Chapter VIII.: Of Official Evidence, As Furnished By Judicial Offices.
- Chapter IX.: Of Preappointed Evidence, Considered As Applied to Legally-operative Facts At Large.
- Chapter X.: Of the Registration of Genealogical Facts, Viz. Deaths, Births, and Marriages.
- Chapter XI.: Of Offices For Conservation of Transcripts of Contracts. *
- Chapter XII.: Of the Principle of Preappointed Evidence As Exemplified In the Case of Real Evidence (evidence From Things.)
IMPRISONMENT FOR DEBT:—DISGUISED EXCLUSION OF EVIDENCE INVOLVED IN IT.
Course prescribed, in relation to this head, by Natural Procedure.
Follow in relation, to this head what present themselves as the proper subjects of inquiry:—
1. To the alleged creditor, by the alleged debtor, to the amount in question or to any other amount, and in the case of mutual accounts upon a balance, is a debt due?—is there any, and what, reason for supposing, that upon inquiry any such debt will be found to be due?
2. If due, in the possession or in the power,—at the command—of the debtor, is there in existence property, or other lawful means of compensation in any shape, to the amount of the debt, or any part of that amount?
3. Over and above the alleged debtor in question, are there any, and what person or persons, who jointly with him, in any and what proportion, or in his default, absolutely or eventually stand bound for the discharge of it?
4. To the alleged debtor in question, on the occasion of the contracting of the debt, or in respect of the non-discharge of it, is blame in any and what shape imputable?
5. If yes, in what shape? In the shape of fraud or rashness, or negligence;—and in each case, is any and what circumstance of aggravation on the one hand—of extenuation on the other hand, to be found attaching upon the offence?
6. In addition to the alleged creditor at whose instance, on the occasion in question, the demand is made, exist there any other and what persons, who on any and what score respectively, upon the effects of the alleged debtor have any such claim, as by satisfaction administered to the demand made on the present occasion, would to any and what amount be prejudiced?
Such are the points, or at least among the points, in relation to which, had justice been the object and humanity the guide, evidence would have been thought fit to be heard, or if not heard, at any rate in the best producible shape received and read:—heard or read, as the case may be, before any such sufferings as those which are attendant on imprisonment or local confinement had either definitively or provisionally, in execution or on mesne process, as the phrase is, been inflicted.
Evidence received?—from whom?—and in what shape? Answered a thousand and a thousand times over:—from the parties at the initiative meeting in the presence of the judge—in the orally expressed shape,—subject to interrogation,—unless in so far as personal appearance is by accident rendered on either side physically or prudentially impracticable.
Forewarned, an insolvent debtor might withdraw his person or his effects out of the track of justice:—suspicion to this effect declared, at the plaintiff creditor’s peril, on record, no reason why, with the secresy and suddenness that have place at present, the debtor should not be arrested, provided always, that instead of jail or spunging-house, he be brought immediately into the presence of the judge, there to undergo examination, as above.
Course actually pursued in relation to this head, by English Technical Procedure:—groundlessness and needlessness of the infliction in this case.
Above we see what ought to be:—now as to what is.—Under technical procedure—under Westminster-Hall procedure, on scarcely any of these points is evidence in any shape at any time received: on almost all of these points, evidence in all shapes stands at all times excluded.
Look to the efficient cause, and no further: in all this nothing will be seen but that sort of error which, throughout the greater part of this work, has been seen exercising its baneful rule—exclusion of evidence.
Include in your view the consequences and the final cause, the author’s end in view, and the means—everything will be seen by which the heart or the head of a man is most disgraced.
1. For consigning a man to imprisonment definitively till the debt is discharged—that is, bating the accident of insolvent acts, or release given by the injured creditor, to the end of life—in the ordinary course, viz. the common-law course of procedure, all that is required is, direct proof of the debt,—or what is considered as an equivalent, in the character of circumstantial evidence of it, and that conclusive,—inability to defray the charges of defence.
2. For consigning a man to imprisonment provisionally, viz. on mesne process, till he find responsible persons who engage, in the event of a judgment in affirmance of the debt, either to discharge the debt themselves, or deliver up his body to the definitive imprisonment—to imprisonment, viz. in a common goal, or if he able and willing to bear the extra expense, to a place of less incommodious confinement, commonly called a spunging-house, till the reign of George II., nothing more was necessary than repairing to one of the justice-shops (officinæ justitiæ, as in lawyers’ Latin they have been called,) in which the liberty of the subject was and continues to be sold at a fixed price, by and for the benefit of the judges;—going to one of these shops, and paying to the agent of the judge the price of the lying instrument, by which authority for the exercise of this act of oppression was and is conferred.
At present, the matter stands not exactly upon this footing. Anno 1725, at the end of a term of oppression of several hundred years continuance, without so much as the faintest colour of justice (after the degree of opposition that may be imagined,) what was pretended to be a remedy was applied.
Antecedently to arrest, as a condition precedent to the issuing the warrant for arrestation, an affidavit was required to be exhibited by the plaintiff creditor—an affidavit in which the existence of a debt not less than to a certain amount, as due to him from the alleged debtor, was asserted, but in the most general terms, without any the slightest indication given of the ground of the demand—without any such assertion as that that or any other amount was due upon the balance, or that for the vexation, inconvenience, and expense to which the alleged debtor was thus subjected, there existed any such reason as that which would be afforded by his probable insolvency, coupled with his eventual nonforthcomingness for the purpose of definitive imprisonment, as above.
The matter of fact deposed to, insufficient to warrant the suffering inflicted;—the sole source of the evidence the most untrustworthy of all sources,—the party testifying in his own cause, without the check of counter-evidence—that evidence received in the most untrustworthy of all shapes, viz. the affidavit shape;—to the purpose in question, this evidence taken for conclusive;—all counter-evidence excluded;—the party defendant condemned to this inconvenience, vexation, and expense, unseen and unheard:—such was the arrangement which, when applied to the abomination above described, a lawyer-led legislature was weak or wicked enough to present to the people in the character of a remedy.