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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 XXX.

EVIDENCE IN RELATION TO PARTICULAR FACTS AND PLEADINGS UNDER TECHNICAL PROCLDURE.

“Of evidence in general, as regulated by the pleadings and other proceedings in a cause.” Such is the title which, in the most comprehensive as well as instructive of all works, that under the English system of technical procedure have as yet appeared on the subject of evidence, stands prefixed to the second and rather more copious of the two parts between which the matter of it is divided.

Such is the description therein given of the sort of matter which, for the reasons that have just been given it has been thought proper to discard out of this work, in which everything belonging to evidence in general, was meant and endeavoured to be brought under review.

In the instance of the present work, for the omission of all such particular matter, the reasons above assigned will, it is supposed, not be found insufficient.

In the instance of that professional and learned work, the necessity of giving insertion to all such particulars as are there inserted, appears upon the face of the description given of it as above.

Of the sort of matter thus discarded, considering that its title to be considered as matter belonging to the subject of a book on the law of evidence cannot be wholly set aside, it may be some satisfaction to the reader, especially to the professional reader, to see some account given—some conception, how general and loose soever afforded, on the principles corresponding to the principles adopted in the course of the present work.

In the form of opinions and propositions, some of the most striking conclusions shall accordingly, in this place, be briefly brought to view:—

1. Of this matter of detail, a great part is of such a nature as, under a system properly constituted and consistently conformed to, would never have found a place in any work on the law of evidence: it either would not have found under any title a place in any book of law, or if under any title, not under any such title as that of evidence.

2. Of the matter contained in this book, which has any reference to the subject of evidence, the whole is furnished by no other sorts of suits or causes, than those in the course of which jury-trial has place.

3. On these occasions, in so far as the question discussed is a question relating to evidence, it is a question concerning circumstantial evidence;—i. e. whether, in relation to a fact of such or such a description, considered in the character of a principal fact, a fact of this or that other description shall, in the character of an evidentiary fact, be admitted, and if admitted, be considered as conclusive.

4. The decisions on any such question reported,—the instances in which any question of any such nature has been suffered to be discussed, are so many instances of usurpation recorded:—of usurpation made by the judges upon the constitutionally proper, and never directly contested, however continually and covertly invaded province of the jury, in their quality of judges of the matter of fact.

With few, if any, exceptions, the matter contained in that volume would be found referable to one or other of the heads following:—

1. A matter belonging to the substantive branch of law, viz. some point which exists in the shape of real, i. e. statute law.

2. A question concerning the import and effect to be given to this or that clause, in this or that instrument of contract in common use: an instrument the terms of which constitute, as between all persons interested in it, so much of the matter of statute law.

In both these instances, on one side or the other, this or that portion of discourse is proposed as proper to be applied to the text of the statute, in such manner as to operate in explanation, or, in some way or other, under the notion of explanation, in alteration of it:—in alteration; viz. by producing the effect producible by addition to, or defalcation from, or substitution in relation to such or such portion of the matter contained in it.

3. A question belonging to the same branch of law, but to some part of it which has no other than an imaginary existence, being of the nature of jurisprudential, alias judge-made, alias unwritten, alias common law.

4. A question belonging to the law of procedure:—of which sort is every question concerning the onus probandi as above described, and any question concerning the sort of evidence requisite for the support of an allegation made to this or that particular effect, in and by this or that one of the written instruments in which are contained the pleadings in the cause.

5. A question concerning circumstantial evidence, i. e. whether, in relation to this or that particular fact in the character of a principal fact, such or such matter of fact shall or shall not be admitted in the character of an evidentiary fact. If admitted, the evidence afforded by it is generally considered as conclusive.

In every one of these instances, the deplorable state of the law, considered in any such character as a rule of action, having for its end and object the welfare of the individuals whose fate is governed by it, may be seen exemplified.

1. As to statute law:—what there is of it, is a mere shapeless mass; bulky in its form, and at the same time scanty in its matter:—consisting of no more than a collection of disjointed materials, laid in patches upon a groundwork consisting of imaginary law;—of law, the words, and consequently the substance and import of which, are left to be on each occasion shot at by imagination and conjecture.

Supposing the whole to possess the form and extent required, digested in some such way as every work is which is really intended to be understood, under a connected assemblage of titles and sub-titles,—on this supposition, as often as for the purpose of receiving explanation, or, under the notion of explanation, alteration at the hand of the judicial authority, the words of such explanation or alteration, instead of being either left to drop into oblivion, or settled between a self-appointed note-taker and the bookseller, his customer or employer, would, at the requisition of the legislature, be settled, and applied to the text, in the manner of amendments made at present to a bill, by the judge or judges by whom the decision was pronounced; and being notified to the two Houses of Parliament, might then, from the tacit and implied consent of the two authorities, receive that binding force which at present they receive at the hands of the two estates, viz. the note-taker and bookseller, as above.

2. As to jurisprudential, alias judge-made law, alias common-law:—neither on this nor on any other occasion, can it without risk of producing misconception be brought to view, if brought to view in any other light, than that of,—from beginning to end a monstrous system of absurdity and imposture, of which it is impossible for any man to speak properly without self-contradiction, or an enlightened lover of mankind to think of without melancholy or without shame.

On no occasion whatsoever, can any portion of it be spoken of without being spoken of as having such or such an assemblage of determinate words belonging to it. But in no part of it has it any such determinate words belonging to it. By the individual who, on any occasion or for any purpose, has need to speak of it—client, suitor, attorney, advocate, judge—to the minutest fragment which on that occasion happens to come in question, a set of words are assigned at a venture,—one advocate on one side saying that such and such ought to be the assemblage of words—the advocate on the other side, such and such other words,—one judge, in like manner, one set—another judge the same or another set,—no such advocate, nor any such judge, for five minutes together, after the time of their dropping out of his mouth, troubling himself to remember what they were;—the note-taker, if any such self-appointed officer happen to be present, neglecting or noticing them, conceiving them aright, or misconceiving them,—setting down upon his paper those same words, or any others, as it may happen, and so forwarding them or not forwarding them to the bookseller or the printer.

And thus it is that on the present, as on every other occasion, a nominal existence is given to the portion in question of the non-entity to the designation of which the sacred name of law is prostituted, and which, for the affliction of mankind, has been endowed with the force of law,—that ideally existing, yet but too really acting power, by which the purposes of oppression and extortion and depredation, and, in every other assignable shape, injustice, are so correctly and admirably fulfilled; while, to every honest and useful purpose, it possesses that sort of efficiency which from a non-entity ought in reason to be expected.

3. As to the law of procedure, in whatsoever shape it happens, in the part in question, to be existing,—whether in the real shape of statute, or the imaginary shape:—of the matter referable to this head, a large exemplification is afforded by that in relation to which the question is, on which of the two contending parties the onus probandi,—the obligation of exhibiting proof,—shall be imposed.