The Online Library of Liberty

A project of Liberty Fund, Inc.

• 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 III.

CONSIDERATIONS RESPECTING THE EFFECTS OF INTEREST IN GENERAL UPON EVIDENCE.

1. There is scarcely one occasion on which, scarcely a species of suit in which, it may not happen to a man to be acted upon at the same time by any number of motives, as above exhibited—by any number of different sorts of interests, besides the guardian motives, the force of which acts in general on the side of truth: and these sinister interests may be acting all of them on the same side, or some on one side, some on another.

2. The efficiency of a motive depends, not upon the species to which it belongs, but on the strength with which it happens to act in each individual instance. There is scarcely a species of motive which is not capable of acting with any degree of force, from the lowest to the highest, or not much short of the highest.

3. A man’s own testimony, given in his own cause, is of all evidence the most, and most properly, exposed to suspicion, where the tendency of it is in favour of that cause:—it is of all evidence the least exposed to suspicion, when the tendency of it is in disfavour of that cause.

4. But even in this case, it cannot be relied upon with perfect safety. In a penal case, a man may by his testimony subject himself to conviction and punishment as for a certain offence, in the hope of avoiding some greater evil; for example, prosecution, and thence conviction and punishment, for some more severely punishable offence. In a non-penal case, a man may, for the advantage of others, with or without collusion, institute a cause for the very purpose of betraying it.

5. Setting aside the indirect counter-evidence that may be opposed to a man’s testimony by the improbability of the fact he deposes to,—it is more easy to disbelieve him where, on the supposition of incorrectness on the part of his evidence, such falsity cannot but have been accompanied with that criminal consciousness which converts it into mendacity, than when it may be accounted for on the supposition of simple incorrectness:—because, in the first case, it cannot have happened but that the mind of the witness must have been subjected to the action of some sinister interest or interests, acting in sufficient force to overcome the united resistance of the whole phalanx of guardian interests.

6. In England, scarcely any crime is so common as that of exculpative perjury;—scarcely any so rare as that of criminative perjury:—especially in the case of the most highly punished species of crimes. The reason is, that in the former case, humanity, i. e. sympathy towards the individual over whose head the rod of punishment hangs suspended, is an interest that acts in opposition to the guardian interests:—in the latter case, its force is exerted on the other side.

7. Among professional depredators, the propensity to exculpative perjury is strengthened by the concurrence of other interests. Not only each gang of specially connected depredators, but the whole class, and, as it were, community of depredators taken together, form, as it were, a particular community of itself, which, like other particular communities, lawful and unlawful, honourable and dishonourable, such as that of divines, lawyers, merchants, &c. has its esprit de corps, its corporate affections, and other interests. Being a community within a community, it has accordingly a popular sanction, a public opinion of its own, distinct from, and in this instance opposed to, the public opinion of the great community, the public at large. This, therefore, is one of the cases in which the force of the popular sanction is divided against itself, and in which that division which is likely to be strongest is on the side opposed to justice.*

8. Among such professional depredators as are either connected and united into gangs by special compact and habits of co-operation, or though it be only by an acquaintance with the particulars of each other’s crimes, the propensity to exculpative perjury is still further strengthened by the influence of the principle of self-preservation. When a member of any such gang comes to be convicted, a natural and frequent result is a disclosure, more or less complete, of the particulars of his former delinquencies, including an indication of the share borne in them by his associates: among the fruits of which indications, is the apprehension of those associates, and the obtaining of evidence sufficient to bring them to punishment.

9. Against criminative perjury, so powerful, so efficacious, is the action of the guardian interests, that, in the character of seductive interests, two of the most powerful motives, viz. love of life, and pecuniary interest—one acting in the greatest possible force, the other acting with more than ordinary force—are scarcely ever known to produce it. Pardon, together with pecuniary reward in masses from £10 up to £1000, are the expedients continually resorted to, in English practice, for the obtaining from an accomplice the necessary mass of evidence, in the case of capital, that is, first-rate crimes. All this while, where self-preservation is out of the question, pecuniary interest, though in a magnitude ever so trifling, and though it be of that comparatively weaker sort which is created by the desire of gain, and not of that stronger sort which is created by the apprehension of loss, is under the same system made to operate as a ground of peremptory exclusion, preventing the testimony from being so much as heard:—and this, too, let the pecuniary interest at stake, and consequently the damage to the party suffering by the perjury, supposing it to take place, be ever so trifling. Pecuniary interest, acting upon the witness by itself, is thus made to shut the door against his testimony: pecuniary interest, when reinforced by another interest infinitely more powerful, acting on the same side,—by an interest which includes all others put together,—no longer shuts the door against, but throws it wide open to the same testimony. All the while, this apparently irresistible invitation to perjury has scarcely ever been productive of its natural, and to appearance unavoidable effect. The reason is nowhere to be found in the joint influence of the two concurring causes, but in the particular difficulty of carrying into effect a plan of perjury in this particular case—a cause which belongs not to the present purpose: the other is the joint influence of the interest of humanity, seconded and supported by a narrow and spurious sort of honour, or regard for a portion of the mass of popular opinion, as above explained. But the force of the action of a principle of humanity, in a case where the tendency of it is to cause one man to save another from a mass of suffering—from a mass of punishment—will naturally be, cæteris paribus, directly as the magnitude of that punishment. Hence, although the force of the motive acting in a sinister direction—viz. self-preservation—is also in this case, by the supposition, as the magnitude of that same punishment, yet such is the force of the principle of humanity, seconded as above, that it almost always gets the better of the sinister interest of the same kind, even when that sinister interest has the allied force of pecuniary interest for its support.

[* ]See Letters to Lord Pelham, and Collins on New South Wales.