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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 II.

CONSIDERATIONS PROPER TO BE BORNE IN MIND IN JUDGING OF THE WEIGHT OF EVIDENCE.

1st Cause of Suspicion.—Improbability of the fact deposed to.

The improbability of a fact in itself, may be considered as a sort of counter testimony—a sort of circumstantial evidence, operating in contradiction to any direct evidence by which the fact in question would otherwise be considered as proved.

The improbability of a fact may rise to such a degree as to render it absolutely incredible—incapable of being proved to the satisfaction of him who thinks of it, if not by any evidence, at least by any such evidence as is actually adduced in proof of it.

If the inference drawn from the improbability of the fact, viz. that it is not true, be just—i. e. if notwithstanding the testimony by which the existence of it is asserted, it really did not exist,—the fault must lie either in the inferences deduced from the testimony, or in the testimony itself. If the testimony itself be to such a degree positive as to assert the existence of the matter of fact in question in direct terms, then the fault cannot be in the inference deduced from the testimony, but must be in the testimony itself. The testimony must either be incomplete or false, or both: though if, as above, it be to a certain degree positive, there may be no room for charging it with being incomplete; and if the fact so asserted be false, the testimony by which the existence of it is asserted, must necessarily be, in some circumstance or other, false. But as an assertion made by a man may be false without his being conscious of its being so, such falsity is not of itself proof of perjury.

When a fact is considered as being to such a degree improbable as not to be capable of being proved by any quantity even of the best evidence, it is commonly termed impossible.

Improbability or impossibility, is either physical, that is natural, or moral. A fact may be said to be physically improbable, when it is considered as being inconsistent with the established and known order of things—with any of those rules and propositions which have been deduced from the general observation of mankind, and are termed laws of nature: such as, for instance, that which asserts as a known matter of fact, the weight or gravity of all the bodies that we see in, upon, or near to this earth; that property, whereby, if a man jump up from the surface of the earth, he feels himself drawn down again.

A fact is said to be morally improbable, when it is considered as being inconsistent with the known course of human conduct. This species of improbability is confined to such facts as have their place in the human mind: such as the entertaining of such and such perceptions, conceptions, intentions, wishes; the being animated by such and such motives, under the existing circumstances of the case.

The degree of distrust produced in the mind of a judge by the improbability of the alleged fact, when that improbability is of the physical kind, as above, will depend upon the confidence he has in his own knowledge respecting the powers and order of nature so far as the particular fact in question is concerned. If he have any doubt, he will do well to have recourse to scientific evidence—to call in the opinion of such persons as, by their professional situation or reputation, are pointed out to him as being particularly well informed in relation to matters of that sort.

Thus suppose, upon the testimony of two witnesses, a demand made upon a man for money in satisfaction for damage done to a garden by the fall of the first inhabited air-balloon that ever rose: and from reflection on the weight of bodies, suppose the judge to have been inclined to disbelieve the testimony, on the ground of the apparent improbability of the fact. In such case, he would have done well to call in the opinion of some lecturer or lecturers on natural philosophy; and accordingly, supposing him so to have done, he would have learned from them that there was really no inconsistency between what he had always observed and heard concerning the heaviness of bodies in general, and what the witnesses had been deposing concerning the extraordinary lightness of the particular body so raised.

Concerning moral improbability, as above described, every man acting in the situation of a judge will naturally consider himself as competent to pronounce. A man on these occasions looks into his own mind, and asks, as it were of himself, whether it be probable or possible, that in the circumstances in which the person in question is stated by the evidence as entertaining such and such perceptions, conceptions, intentions, wishes, and the like, it could have happened in such circumstances to himself to have entertained any such perceptions, conceptions, intentions, wishes, and the like.

Moral improbability of the fact is a sort of evidence upon which conviction or acquittal turns, in most cases of delinquency, especially when against the defendant there is no other than circumstantial evidence. It is seldom that a man can be deemed guilty, unless his intentions be taken into the account; and when he avers his intentions to have been innocent, it is not possible to prove their having been guilty, otherwise than by the moral improbability of their having been otherwise. When Captain Donellan was convicted of murder by the poisoning of Sir Theodosius Boughton, one of the principal circumstances against him, was his anxiety to have the cup immediately rinsed out. On any other supposition than that of the cup’s containing a poison by which the fatal symptoms were produced, this anxiety and the expression given to it were looked upon as acts without a motive. Should I in that situation have entertained any such anxiety if I had not been guilty? If in that situation I had been guilty, could I have avoided entertaining the like anxiety, although I should hardly have been so incautious thus to betray it? Such were the questions which, in the situation of the jury by whom he was convicted, every man who joined in the conviction, or approved of it, could not but have put to himself.

2d Cause of Suspicion.—Interest.—The testimony of the witness liable to be drawn aside from the line of truth, by the influence of some seducing motive.

There are as many species of interests as there are species of motives:—there are as many species of motives as there are distinguishable sorts of pains and pleasures.

Whatever, on each given occasion, be the complexion of a man’s conduct,—lawful or unlawful, commendable or discommendable, beneficial to society or prejudicial,—it is always the result of the action of some motive or motives, or of the difference in point of force between two lots of contending motives;—an action without a motive is an effect without a cause.

Among motives, there are some, the action of which tends in the main, all the world over, or at least in every civilized community, though in different communities with exceptions more or less considerable, to keep men’s conduct within the pale of probity, of which a main branch is the line of truth.

These are—1. The motives created by the rewards and punishments administered by the law of the state; 2. The motives depending on good and evil reputation, from whence flow respectively the spontaneous good and ill offices of mankind; 3. The motives created by the affection of benevolence, whether its object be more or less extensive—a man’s family, his friends at large, his province, his country, or mankind; 4. The motives created by religion. In consideration of their most usual tendency (though there is not one of them which by means of some error or other has not been productive of actions pernicious to mankind, and in particular has not drawn aside man’s testimony from the line of truth,)—all these together may be comprised under the common appellation of tutelary or guardian motives.

All motives whatever, not excepting even the motives termed, in consideration of their regular and ordinary tendency, guardian motives, are liable to act in the character of seducing motives on all occasions, and in particular on those occasions where a man is called upon for his testimony by the voice of justice, and thereupon to draw aside the tenor of his testimony from the line of truth.

There are some motives or interests which are most apt to be productive of this sinister effect, and of the sinister tendency of which, on those occasions, it behoves the judge to be more particularly upon his guard; in so much, as the more strongly the situation of a witness exposes him to be acted upon by any one or more of these motives respectively, in such sort that, by swerving from the line of truth, he might procure to himself the gratification of the appetite or passion corresponding to such sinister seducing interest or motive, the stronger the suspicion and distrust with which his testimony will naturally and not improperly be regarded. Not that by any means it follows, that because a man is exposed to temptation, therefore, spite of the utmost efforts of the guardian motives, he will on every occasion yield to it:—but thus much, and thus much only, is the proper practical inference, that the stronger the action of the sinister interests on the part of the witness, the more vigilant ought to be the scrutiny on the part of the judge.

These interests or motives are as follows:—

1. Pecuniary interest:—to which belong the motives created by the desire for money; that is, including all things that are to be bought for money.

2. Enmity:—to this passion belongs the motive which, when excited by injury, real or imagined, is termed revenge. So, even although there be not so much as an imagination of injury, an uneasiness regarded as having the person or conduct of a particular individual for its cause, will be productive of that same passion, which when in the character of a motive it acts upon the will and influences human conduct, is called revenge.

3. Love of Power:—desire of acquiring or preserving power of any kind;—fear of losing it.

4. Desire of gaining or preserving the protection or patronage, the good will and good offices of a particular individual, in the character of a master, patron, or useful friend.

5. Love:—i. e. personal attachment in the case where connected with sexual attraction.

6. Personal attachment; or friendship towards an individual:—the principle by which an individual is led to regard the interests of a friend in the same manner as his own, and to be actuated by them in the same manner and direction as if they were his own, whatsoever difference there may be in the degree of force.

7. Family attachment:—the principle by which a man is led to adopt as his own, the interests of his family,—a circle which may be more or less wide in its extent, and in which exceptions in any number may be included.

8. Party attachment.

9. Self-preservation:—a motive, in the object of which, if taken in its largest sense, are included all pains and dangers, and thence even losses and disappointments of all sorts;—and which, when the danger apprehended is the loss of life (a loss in which the loss of whatever pleasures a man could hope for is involved,) is termed danger of the loss of life. In so far as the pains in question may have legal punishment for their source, the fear of punishments of all sorts is included within the compass of this motive.

10. Love of ease; or aversion to labour; i. e. to the pains which result as the natural accompaniments of labour, when considered apart from the pleasures and sources of pleasure which in the several cases it looks to for its reward.