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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 XXIX.

EVIDENCE CONSIDERED IN ITS RELATION TO THIS OR THAT FACT IN PARTICULAR—WHY DISCARDED FROM THIS WORK.

Considered in its relation to this or that particular matter of fact,—whether it be individual fact or species of fact,—evidence, it will upon review be manifest, has not been comprised in the field of inquiry marked out in and for the present work.

On further consideration, a proposition for which the assent of the reader may not unreasonably be expected, seems to be, that when considered in any such narrow point of view, the consideration belongs not properly—notwithstanding the apparent contradiction in terms—to any work, purporting on the face of it and by the title of it, to be a work on evidence—or even, to come home to the point, a work having for its object the law of evidence.

On every occasion on which any matter of fact comes in question, so does whatsoever evidence is considered as bearing relation to it: so, therefore, does evidence considered in its relation to that same matter of fact.

But from this circumstance, no occasion has ever yet been taken to consider every work in which matters of fact are brought in question as a work on evidence:—to consider the word evidence as constituting of itself a proper title to such work, or as fit so much as to constitute an elementary portion of any such title.

If so, not only all political history, but all religious history, all natural history, and even all natural philosophy, all physics, including all mathematics—for mathematical propositions, in so far as they have any truth, are but physical propositions of the utmost amplitude—would present each a title to a place in a work on evidence. True (it may perhaps be said,) if evidence, without any word of limitation disjunctive of the class of facts which were meant to be the subject of it, were the appellative in question. But prefix to it any such word as legal—or say, law of evidence—it will thereby be understood at once, that facts susceptible of a legal operation—facts capable of producing legal effects, are the only sorts of facts with relation to which, in a work so entitled, evidence is about to be considered.

Admitted: but, on the other hand, what has already been shown is, that there is scarcely that imaginable species of fact, to which it may not happen to be comprised within the class of legally operative facts.

All this while, a consideration that can scarcely fail to have already presented itself to the mind of every professional reader, is, that of the matter of this or that book, purporting by its title to be a book on the law of evidence, a full moiety is of such a description, that what is there spoken of under the name of evidence, bears in every instance relation to this or that particular fact; and, at the same time, that no mention of such matter or reference to it is included in anything, that in treating of the subject of evidence in general has in the course of the present work been brought to view.

Matter of this sort, it may be asked,—in a book purporting by its title to be a work on the law of evidence,—has there been any impropriety in the insertion of it?—to go further, had no mention been made of such matter in a book thus entitled,—could it have been regarded otherwise than as incomplete?

In justice, the answer, it should seem, cannot be otherwise than in the negative—and the reason is—that where, in so far as the evidence in question is in its application limited not only to such facts as come ordinarily under the appellation of legally operative facts, but to the dispositions that appear as yet to have been made by the law, as it now stands, in relation to such facts, the space within which the matter of such a work is capable of being compressed will be seen to be altogether of very moderate extent; so moderate, that if, in a work professing to be an all-comprehensive one on the subject of evidence, matter of this description were omitted, the work, especially when considered with relation to the sort of information requisite for the purpose of the professional reader, might justly be taxed with being incomplete.

But in a work designed for the use of professional men, while thus, for the sake of completeness, the title to admission presented by matter of this sort cannot but be confessed,—at the same time, for the sake of clearness and correctness of conception, neither can the demand which appears to present itself for a clear and strong line of distinction between the two divisions, in themselves so dissimilar, of a subject, which by its customary denomination is declared in both cases to be the same, be looked upon, it should seem, as fit to be left unsatisfied.

In Peake’s Treatise on the Law of Evidence, this line has accordingly been drawn; and in that work, as it should seem, for the first time—for neither in the work of Lord Chief-Baron Gilbert on Evidence alone, nor in the work of Mr. Justice Buller on the Law of Evidence considered in the law of nisi prius! (nisi prius! what an appellative)—in neither of these masses of technical jargon is any trace of it to be found.

By Mr. Peake, in whose useful compendium, wretched as it is in its own nature, the matter appears to much greater advantage than in either of these others, so strongly, prominently, and decidedly drawn has been this line, that before that part, which in no other than a practical and incidental point of view belongs as above to the subject of evidence, had at all been touched upon by him, that part in which, if the view here given of it be correct, the whole of the matter that, strictly speaking, belongs to the subject of evidence is contained, had for some time been published.

“Evidence in general, as regulated by the pleadings and other proceedings in a cause,” is the title employed by the learned author in designation of the matter comprised in the second part of his work. Whether by that title, or by the title prefixed to the present chapter, the clearest and most correct notion will be given of this part of the subject matter of the law of evidence as it stands in highest English practice, is more than I can take upon me to say. On the present occasion, the reason of the preference given to it, for the purpose of this work, is, that in and by it, is rendered more distinctly present the consideration by which the exclusion of it from the present work was determined;—for setting aside all reference to the pleadings and other proceedings belonging to this or that technical system of procedure, the circumstance of the reference all along made to particular facts considered in the character of facts, exercising their legally operative force on such or such particular occasions—on the occasion, and in support of or opposition to such or such particular demands, would have sufficed to insure the exclusion of all matter of this description from the pale of the present work.

Suppose that instead of the law of England, the law of any other country. Scotland (suppose) or France, had been the system of actual law taken in the course of the present work as the standard of reference. The evidence, in so far as regulated by the pleadings and other proceedings in a cause would in that case have assuredly been found to wear a very different aspect from that which it does under the law of England: yet whatsoever matter is here omitted out of a work, looking throughout the whole course of it, as does the present, principally though not exclusively to the law of England, would equally have been excluded from this work, had the system of actual law principally regarded in it, been either of those two other systems.