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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 I.

PROPRIETY OF CAUTIONARY INSTRUCTIONS, IN PREFERENCE TO UNBENDING RULES.

It has been already shown at length, how fallacious in their tendency, how unfavourable to the interests of truth and justice, with a very few exceptions, the objections commonly made to this or that species of evidence are in general, when the practical result is the shutting a peremptory door against the reception of this or that species of evidence:—or, in the language of English lawyers, where they are considered as constituting peremptory objections to the competency of the evidence. Pernicious, however, as well as ill grounded, as with a very few exceptions they appear to be, in that character—in the character of objections to the credibility or rather to the credit of the evidence,—there are few of them from which information, rational and serviceable information, may not be derived.

Many and many are the occasions on which, of the same proposition of which, in the character of an obligatory rule, the effect cannot but be pernicious,—the effect in the character of a memento would be useful as well as unexceptionable.

Unfortunately, in legislation as in administration, in the senate as in the closet, the exercise of will is easy;—it is the exercise of the understanding that gives trouble.

Though seated in the centre of information—of that privileged sanctuary through which alone lies the road to the pinnacle of wisdom,—though possessing among themselves a share, amounting in some instances even to a monopoly of the efficient causes of wisdom—the rulers of the world have in general been as sparing of their lessons, as they have been liberal of their commands. As to the reputation of wisdom, it is among the appendages of power; and in proportion as men are secure of possessing it, whether they deserve it or no, they are free from anxiety on the score of their not being thought deserving of it.

In the character of a memento, the tendency of a proposition relative to the credit due to a piece of evidence will, in almost every instance, be conducive to rectitude of decision—conducive to the main end of justice: while, in the character of an obligatory rule, of a ground of peremptory exclusion, the effect of a proposition, the same in other respects, will in most instances he pernicious—productive of hardship and injustice, and of that sense of general insecurity of which every instance of injustice, in proportion as it appears to be what it is, is naturally productive.

Of a rule of the monitory kind producing that effect, and that alone, which in each individual instance presents itself to the mind of him to whom it belongs to judge, as suited to the nature of the case, the effect is in each instance purely good, conducive to the ends of justice:—of a rule to the same purport in other respects, but possessing and exercising obligatory force, the effect is in every instance either pernicious or unnecessary;—unnecessary, where in the character of a rule of unobligatory instruction it would have had its influence and guided the current of persuasion—the course of decision;—pernicious, where leaving the judgment unsatisfied, it drags the will by force into a decision condemned and protested against by the judgment.

The amount of the deduction which reason presents as the proper one to be made from the persuasive force of the piece of evidence in question, on the score of the objection made to it, is susceptible of all manner of degrees or modifications in point of quantity. The rule which converts a ground of deduction—a cause of doubt—into an efficient cause of peremptory exclusion, gives to that force, which is thus susceptible of an infinity of degrees, the effect which cannot belong to it with propriety on any other supposition than that of its existing at one and the same invariable degree in every instance.

Though addressed professedly only to judges, instructions, if published, as of course, if sanctioned, they would be, are in effect addressed to all the world. In effect, they are consequently addressed as well to parties as to their advocates. But under the established systems,—even under the system established in England,—it is not every party that has an advocate, since it is not every party that has wherewithal to pay one. Instances are, the common run of trials for predatory offences of indigence, and the petty offences of various sorts, the cognizance of which is given to single magistrates.

As to parties:—on this subject there cannot be an instruction given, of which, if it be of any use, and susceptible of any application, it will not happen to one or other of the parties to be concerned, in point of interest, to claim the benefit of it. But among suitors, especially among suitors too indigent in circumstances to have it in their power to purchase the services of professional assistants, there will naturally be many, not to say a large majority, who, by want of general instruction and mental culture, will be disqualified for turning to account instructions to this effect, or any instructions that could be given them on the subject of evidence by any general rule of law.

It cannot therefore in any case happen but that the care of attending to them and carrying them into effect, in each case for the benefit of the party interested, must rest in some degree upon the judge:—and accordingly they cannot but be considered as addressed to the judges, not in words only, but in design and effect.

Addressed nominally to judges only, but virtually to all ranks without distinction—addressed to them, and received by them, according to the measures of their several capacities and opportunities, they will have a further effect beyond that which they claim in words. By putting the reader upon his guard against those frauds, the exposure to which constitutes so many causes or modes of infirmity in the respective corresponding species of inferior evidence, a natural effect of them will be to prevent the fraud itself, by impressing the persuasion that the effect of this warning given against it will have been to render the attempt perilous, and success hopeless.

In this point of view, a code of instructions to judges respecting the weight of evidence, being in effect a warning against those particular modifications of fraud of which a court of justice is the theatre, constitutes an application of a principle already held up to view: a principle by which, as a means of preventing frauds at large, a system of instructions laying open such frauds as shall have been brought to light by experience, is recommended as one of the instruments by which, in the way of indirect legislation, the legislator has it in his power to ward off crimes.*

In the way of instruction, as contradistinct to regulation, the legislator cannot do harm—he cannot but do good. Harm he cannot do: no, not even should the instruction he gives (unsupposable as the case is) be all of it erroneous and false. Being false, it may prove deceptious, and in so far mischievous. True: but instruction is here considered in contradistinction to—in exclusion of—coercive regulation. Leaving it to the judge to make such use of the instruction as he thinks best—none at all if it appear erroneous, it leaves his will free to profit by such better lights as his own experience and understanding furnish. What if, instead of confining himself to the giving instruction, the legislator had drawn the inference in every case, and converted his erroneous but uncompulsory instructions into compulsory commands?

But the case is scarcely conceivable—certainly not at all probable—in which, by operating in the line of instruction, the legislator can fail of doing good.

The judge, attending to the subject of evidence—to the cases that come before him on that ground, as to any others—no otherwise than as he is called upon to attend to it by this or that individual cause,—his views are naturally limited to the particular and comparatively narrow line on which he is thus called upon to act. The knowledge of the legislator is, or at least might be and ought to be, the aggregate knowledge of the whole state—not to say of the whole world. From each one of the judges subject to his authority, he has it in his power to command the whole result of his opinions and reflections on this as on every other line of action within the limits of his office. The chance which he possesses, or at least is enabled to possess, of procuring for himself correct information, is to the chance possessed by any single judge, as the whole number of the judges is to one.

Not only is it in the power of the legislator, as such, to raise the quantity and value of the accessible mass of information in this line to its maximum, but it is in the power of any and every private and uncommissioned individual, according to the measure of his opportunities and his faculties, to render to mankind the same sort of service,—provided always that the hand of the judge be on each occasion left unfettered, and free to turn to its use the information thus supplied.

The contents of this book are an attempt to render, according to the faculties of the author, this sort of service. Should it be found to bear the test of examination, it may serve as a nucleus to which the mass of desirable information, accumulated by the experience of successive ages, may, as it were by crystallization, aggregate itself.

On the other hand, by way of imperation and coercion, no good can be done—harm cannot but be done:—by coercion imposed upon the judge, the probability of right decision—of decision in conformity to the truth in each instance—cannot be increased, cannot but be diminished.

[* ]See Vol. I. p. 567. Uses to be drawn from the Power of Instruction.