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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 IV.

CONSIDERATIONS RESPECTING THE EFFECT OF PECUNIARY INTEREST UPON EVIDENCE.

1. The value at stake being given, as also the sensibility of the individual to a gain or loss to that amount, as deducible from the state of his pecuniary circumstances in other respects, a man’s testimony is more exposed to just suspicion in the case where he is a party to the suit, than where he is not a party:—as also more where he is plaintiff, than where he is defendant. For a man who is not a party to the suit, that is, has no actual interest of the pecuniary kind in the success of that side in favour of which his testimony tends—can in general gain no advantage—can gain no thanks from the party in whose favour, if the testimony be wilfully false, and at the same time successful, the falsehood operates, unless the party be privy to the falsehood, and in some sort a partaker in the guilt. False evidence, therefore, in this case requires two to be concerned in it:—whereas when the party concerned is the witness, it requires but one.

2. In the situation of a defendant, false evidence in a cause relative to money is not so dangerous in its tendency, viz. in the way of example, on the side of the defendant as on the side of the plaintiff. The reason is, that in the character of a defendant, as such, a man has not in his own power the means of increasing the number of his suits at pleasure: on each occasion, whether the suit to which he is party take place, depends directly at least, not upon himself, but upon another person, the plaintiff. By his falsehood, the utmost he can hope to do, is to exonerate himself from the single particular obligation which another person, in the character of plaintiff, seeks to impose upon him:—in the character of defendant, so long as he confines himself to that character, it is not in his power to impose any sort of obligation upon anybody by any succeeding falsehoods, whatever his success may have been in the first.

On the contrary, if on the part of a plaintiff coming forward as witness in his own cause, false testimony obtain credit, and the fraud is thus crowned with success (though the mischief of the first order—the mischief produced by the falsehood in the individual case in question—be no greater in this case than in either of the others,) the mischief of the second order, the mischief in the way of danger and alarm, is much greater: since, in the character of plaintiff, the number of causes it may happen to a man to be concerned in depends altogether upon his own will and pleasure.

If the matter in dispute be, or be alleged to be, equally within the cognizance of the plaintiff and the defendant, whatever illusion the testimony of the plaintiff might have been in danger of producing will have the testimony of the defendant to counteract it: if, in this case, testimony be in any part opposed to testimony, on which side soever truth is, that side cannot but be supposed to possess a natural advantage.

If the testimony given by the plaintiff in his own behalf find opposed to it the testimony of an apparently uninterested witness, truth must be very apparently on the side of the party witness, if the persuasion produced by it be an overmatch for the prepossession which evidence so circumstanced can scarcely fail to excite.

If on the side of the plaintiff there be, besides his own testimony, that of a non-litigant witness, truth and justice have everything to gain by the examination of the plaintiff himself, and nothing to lose by it. Suppose the testimony on this side correct and true, the confirmation given to the statement of the uninterested witness by that of the party cannot but add more or less to the satisfaction of the judge. Suppose the testimony mendacious, the chance of a contradiction between the two conspirators is a chance over and above what the case would have afforded had the testimony of the plaintiff been excluded.

The case in which the testimony of a plaintiff in support of his own demand, supposing the testimony wilfully false, appears to have the fairest chance, is where, upon the face of it, the fact not having come under the cognizance either of the defendant, or of anybody else but the plaintiff, the supposed false testimony of the plaintiff has neither the testimony of the defendant nor any other testimony to contradict it. But in this case it is provided, that though by the supposition the defendant has it not in his power to give any specific testimony, whereby the force of the plaintiff’s testimony may be combated,—yet it should be matter of obligation as well as right on the part of the defendant, after hearing the plaintiff’s testimony, to declare whether he himself gives credit to it—whether he decidedly believe it—decidedly disbelieve it—or remain in doubt. If he believe it, so may the judge with still less difficulty;—if he be in doubt, doubt from such a quarter may in the mind of the judge afford some confirmation of the plaintiff’s testimony. If the defendant, decidedly and firmly, can take upon him to say that he disbelieve it, and no confirmation come in aid of it from any other source, personal evidence or real, direct or circumstantial, there seems little likelihood that the judge should suffer his decision to be governed by such scanty and suspicious evidence. To testimony thus circumstanced, it will oftener happen to be disbelieved when true, than to be believed when untrue.

The force with which a sinister interest of the pecuniary class acts upon the mind may be the same, whether it be certain or contingent—acting on both sides, or acting on one side—acting upon the witness singly, or acting upon him as one of a body of men anyhow composed,—a private partnership, a joint-stock company, a set of persons taxed in conjunction for certain purposes, such as the parishioners of the same parish. In these several cases, the interest in question is but the fraction of an interest:—but a fraction of one sum may be equal to the whole of another.

The prospect which an only son has of succeeding to the estate of his father, the estate not being settled upon the son, is but a contingency: but between the force of an interest created by such a prospect, and the force of an interest created by an estate to the same amount settled upon the son, it cannot reasonably be supposed that in effect there should be any material difference. In the money market, interests called contingencies have their price as well as those which are called certainties.

If by a decision in favour of the plaintiff a witness would gain twenty pounds, while by a decision in favour of the defendant he would gain but ten pounds, the force of the interest by which his testimony is drawn to the side of the plaintiff is equal to a force of ten pounds.

If upon the decision in the cause on which the testimony of a witness is to be given, a joint-stock company, with a million for its capital, in which he has a thousandth share, has at stake a sum of ten thousand pounds, the force of the interest by which his testimony is drawn to the side of the company is equal to a force of ten pounds.

Of a quantity of pecuniary interest represented by any given sum (say £100,) the force will be in a prodigious degree different, according as the result of the decision to the witness will be gain or loss to the amount of that same sum. The suffering produced to a man by a loss to any given amount, is much more than equal to the enjoyment that would be produced by gain to that same amount. If a man who has £400 gain £200, his fortune after the increase is to his fortune before the increase, but as 6 to 4. If a man who has £600 lose £200, his fortune after the loss is to his fortune before the loss, but as 4 to 6. If a man who has £400 gain another £400, his condition after the increase is not very high:—if a man who has £400 lose the £400, his condition after the loss is as low as it ever can be. When a man who had originally £400 receives a gain of £400, his fortune is still capable of receiving accession upon accession without end: but when a man whose original fortune was £400 has lost £400, there is no room for any further losses.

A pecuniary interest to act in the character of a cause of falsehood upon the mind of the witness, and thence upon the testimony he exhibits, must be in existence at the very time in which he is occupied in the delivery of such testimony:—the good or evil dependent on the decision for which his evidence is to furnish or help to furnish a ground, must be still in prospect and not in possession at the time. Whether at the time at which the fact in question presented itself, or is supposed to have presented itself to his cognizance, the interest were or were not then in existence, makes to this purpose no material difference. Although the interest were in existence, and his affections consequently exposed to the action of it at the time, yet if at the time of giving his testimony that interest be no longer in existence, its action on his affections is at an end—his testimony is no longer exposed to be influenced by it. Although at the time when the fact presented itself to his cognizance, the interest were not then in existence, nor his affections accordingly exposed to the action of it, yet if at the time of giving his testimony the interest be in existence, and his affections exposed accordingly to the action of it, his testimony is as much or nearly as much exposed to be influenced by it, as if it had already been in existence at the time when the fact presented itself to his cognizance.

Where, by the rules of law, pecuniary interest would operate in the way of exclusion—and to get rid of the objection, and render the witness admissible, expedients have been employed for extinguishing the interest, and thereby neutralizing, as it were, the mind of the witness, by causing it no longer to be exposed to be acted upon, as supposed, by any such sinister force,—so far as consists in the opening of a source of information which would otherwise have been sealed up, and thereby preventing the undue decision or denial of justice that for want of such information might have taken place, the practice undeniably appears to be useful and desirable, and conducive to the purposes of justice. But if on any occasion the effect of it be, as it naturally enough will be, to withdraw the testimony in question altogether from suspicion, and cause it to be regarded as no longer subject to the action of any sinister interest, in this respect the tendency of the operation is fallacious.

Interest in the present instance—pecuniary interest—is created either by hope of gain or fear of loss.

Hope of gain is the most common case,—the witness, for example, to a will, having a legacy depending on the validity of the will.

In this case, two expedients have presented themselves for the clearing away of the interest:—1. One is, the putting the witness in possession of the expected good, the legacy. In this case, he has no longer anything to gain by the confirmation of the will: and is in consequence reputed clear from the action of any sinister interest. 2. Another is the engaging him to give up his right to receive the expected good, the legacy. In this case, he has no longer any assistance to hope for from the law towards the obtainment of the expected good, the legacy:—and in this case also, is in consequence reputed clear from the action of any sinister interest. In this case, the provision of the law would be but incomplete, nor would it extend to all the cases which the expedient was intended to embrace, if the extirpation of the interest depended upon the acceptance of the offer made by the witness to get rid of it. The mere offer has accordingly been deemed sufficient, whether accepted or not accepted:—care being taken to enact, that after an offer to this effect, whether the offer be accepted or not accepted, his right to compel the payment of the money or money’s worth shall be equally at an end.

If, however, it be really supposed, that by any such mechanical process the mind of man can really be cleared of interest, or that the security for truth, for the absence of incorrectness and mendacity, is after the performance of any such ceremony in any considerable degree greater than before, the supposition will upon examination be found delusive. Against simple incorrectness it will be found of little or no use. Against mendacity—against wilful perjury,—it will be found of no use at all.

Mendacity—wilful perjury—out of the question, any departure from the line of perfect correctness, of absolute truth, can have no other cause than that of bias. Whatever deviation from that line may take place in his testimony, the witness himself is not sensible of any such deviation: if he be, so far as he is, so far is his testimony mendacious, and himself a perjurer. In this case, whatever may have been the state of his mental faculties in relation to the facts in question,—his perception—his judgment—his memory, before the operation, it does not seem natural, that by the operation any very determinate or natural alteration should be produced.

But, suppose the bias previously existing and in action, and suppose the legal process to have cleared away this sinister interest, this cause of aberration, from the line of truth,—there remains another, which it is not in the nature of it to clear away, and of which the action will naturally be more powerful than that of the bias itself. This is his regard for his own character,—for his own reputation in respect of veracity,—his sensibility to the pains of the moral sanction. Before the time and occasion for the performance of this legal ceremony can have taken place, he will almost always have given his statement of the affair:—it is from this statement alone that in general the party who has an interest in the restoration of the testimony can obtain that information from which his inducement to put in practice the expedient for the clearing away the objection was derived. But having once given his account of the matter, the witness is concerned, in point of reputation, to abide by it: were he to depart from it in any considerable degree, what he has to lose by such departure is so much of his reputation as is at stake: what he has to gain by such departure is nothing at all. But as it is with mechanical, so is it with human action: to command it, any the least particle of force is sufficient, so long as there is nothing to oppose it on the other side.

In the case of mendacity, the notion of the supposed extirpation of the sinister interest will be found equally delusive. Whatever interest it was that gave birth to the mendacious design, that interest will not be found to have undergone from the process any material change. It will be found, either that the self-same interest will be found still to continue, or that another interest, or group of interests, equally efficient, have been substituted in the room of it: and, at any rate, the interest that respects reputation will be found to apply alike to this case as well as to the other. Saving the extraordinary and not to be looked for case of unbought and thankless perjury, for the benefit of somebody else, mendacity, on the part of a non-party witness, all profit-seeking mendacity,—supposes conspiracy, all conspiracy supposes confidence. But whatever be the ground or cause of confidence, it is not in the power of any such mechanical process as that in question to destroy the confidence, or take away the inducements, whatever they may have been, that led to the performance of the criminal engagement. After the operation, and so far in consequence of it, it may happen to the conspirators to deceive one another; but so it equally might, had no such operation been performed. Moreover, so long as the conspiracy, and the confidence which is connected with and necessary to give birth to it, lasts, the employment of these expedients will be among the necessary, or at least the natural fruits of it. If without the employment of one or other of these expedients, the law excludes the testimony in question, the employment of one of these expedients is necessary to the purpose of the conspiracy. If, although the testimony be admitted, the trustworthiness of the witness be looked upon as increased by the extinguishment of the interest, the expedient of the apparent extinguishment of the interest is a measure that may be regarded as the natural fruit of the conspiracy, though not absolutely a necessary one.

In the above considerations, the efficient cause of the interest is supposed to be the expectation of gain, and not the apprehension of loss. Such in fact accordingly is the most common case:—because the acquisition at stake being most commonly not yet in possession of either: both have something to gain by the event of the suit, neither have anything to lose. The opposite case, however, is not impossible, even on this side—the plaintiff’s side—of the cause. For if the gain to be made by the false witness be not too great for the pocket of the suborning plaintiff, it may happen that the witness takes his payment in the first instance, under the condition of returning it should the decision be adverse:—and in this case, the efficient cause of the interest takes the shape of the apprehension of loss.

But there remains yet another case that may happen; viz. that the side which gives birth to the mendacious conspiracy is the defendant’s side:—in this case, the property at stake is already in the hands of one of the conspirators—the principal in the business,—and the fund being already in hand, there will be no more difficulty, but rather less, in paying him before the termination of the suit than afterwards.

One case indeed there is, in which the effect of the process may be to produce a confidence which is not unmerited. This is where a witness to the transaction, being entitled to an emolument arising out of it—say as before a witness to a will entitled to a legacy given by the will—comes forward of his own accord, and gives up his own just claim, lest other claims—claims of more importance, and which he knows to be just—should be defeated.

But, in the first place, if the man of probity in question think fit to make this sacrifice of his own to other interests (understand pecuniary interests,) he is at equal liberty so to do without any detersive process, as under and in consequence of it. The interest in question, if it be not rendered by the law a ground of exclusion, is at any rate rendered by the nature of men and things in a certain degree a ground of suspicion:—if impelled by the same honourable motives in this case as in the other, he choose not only to gain admittance for his testimony, but in this way to augment its force, there is nothing to prevent him.

In the next place, what in this case is the effect of the operation in question upon the whole body of rights at stake taken together? If it confirm one set of rights, it destroys another:—if it confirm the rights of a man or set of men taken without distinction, it destroys the rights of a man, who by his generosity has been manifested to be a man of superior probity and desert.

In this case, then, it has no other effect than what deserves to be regretted. And upon the whole, if it really clear away any interest at all, it does not clear away any sinister interest; if it clear away interest in any case, it is in such cases, and such cases only, in which that interest had no sinister influence. Its effects, therefore, upon the whole, are reducible to these two: either to the prejudice of a man of extraordinary probity, it deprives a man of his rights without any benefit to truth and justice; or in favour of a witness of ordinary mould is productive of an ill grounded confidence—producing in favour of the testimony so vamped up, a degree of confidence beyond any that properly belongs to it.