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 VII.

SCALE OF TRUSTWORTHINESS.

For the purpose of displaying the several modifications of which evidence is susceptible, the simplest and most instructive course that can be pursued is—to take in hand, in the first instance, employing it as a standard of comparison, by reference to which all the other modifications may be explained, that one of the whole number which upon scrutiny, and even upon the first view of it, may be termed the best.

This being premised—it will be in consequence of some determinate features of infirmity different in the case of every such species, that each of them will fail of coinciding with that one of them all which is the best.

What, then, is the best species of evidence—what is that species which, in speaking of evidence in general, we have in view, when, to distinguish it from all others, we apply to it the epithet expressive of the highest degree of value with reference to use? To characterize it, in the first place, by the effect of which it is productive in the way of use,—it is that species of evidence which, in virtue of the natural constitution of the human mind, as certified by general experience, is productive of the strongest and most determinate degree of persuasion on the part of the mind to which it is presented.

How then shall we recognise, and distinguish by inherent and fixed marks—by marks that do not wait to be imprinted by experience, that species which by the light of experience has been shown to be the best, the most persuasive—and not only at the outset the most persuasive, but at the longrun the most instructive—the least apt to give birth to erroneous decisions—to wrong conclusions?

Happily, the species which, when considered with reference to its effects, may be pronounced the safest as well as strongest—in one word, the best—is at once the most simple in its description, and that which presents itself the most frequently in practice: and this not only in the practice of a civilized state of society, but in a still more eminent degree in the original, which is as much as to say, the rudest state.

For the comprehension of the best species of evidence when contemplated in this general and preliminary point of view, a few matters of fact of general notoriety will require to be brought forward, in a station correspondent to that in which mathematicians bring to view their postulates:—

1. The first is—that concerning the fact itself, of which it is inquired whether it be true or no—whether the act, for example, of which it has been alleged that at a certain time and place it was done, whether it was done or no—a statement given by any person affirming his having been an eye-witness of that fact, will be more persuasive, and less in danger of proving fallacious, than a statement by the same person affirming his having been an eye-witness of some other fact, from the existence of which the existence of the fact in question is thereupon to be inferred. In other words, and shorter—direct evidence is better than circumstantial—circumstantial is inferior to direct evidence.

2. Another is—that concerning any fact whatever, a statement given by any person thereby declaring himself to have been an eye-witness of that fact will be more persuasive, and in less danger of being fallacious, than a statement given by the same person declaring himself to have been an ear-witness of a discourse held by another person, whereby that other person declared himself to have been an eye-witness of that same fact.

In other words, and shorter,—the evidence of an eye-witness, or other immediate and percipient witness, is better than hearsay evidence—hearsay evidence is inferior to the evidence of an eye-witness or other percipient and immediate witness.

3. A third is—that where a statement of any kind, made by any person, whether in the character of a witness or in any other character, is committed to writing, the writing itself to which such statement is so committed in the first instance, will in the character of a true and correct representation of such statement, be less in danger of being fallacious, and will as such be in general more satisfactory and persuasive, than any other writing purporting to be or designed to be a transcript of such original writing, and thereby to exhibit in the same order the same words: and this whether such transcript had for the penner thereof another person different from the penner of the original writing, or even though it were the same person writing at another time.

In other words, and shorter,—in the case of written evidence, a transcript is inferior to an original.

4. A fourth is—that all evidence is liable to produce deception, in virtue of certain causes of untrustworthiness to the operation of which it is exposed according to the sources from whence the evidence proceeds:—if that source be an object belonging to the class of things, i. e. to any other class than that which is composed of declarations or statements made by persons, then by a false colour assumed by or given to the appearance of such evidentiary things:—if that source be a declaration or statement made by a person, then by the action of some cause of aberration by which, no matter at present from what cause—say, for example, the influence of some sinister motive—the declaration or statement given by such person has been made to deviate from the line of truth.

In other words, and shorter,—all evidence is liable to be rendered false by the action of some cause or causes of deception or untrustworthiness.

5. The fifth is—that for diminishing the danger to which as above all evidence stands exposed, viz. the danger of producing deception in the minds of those to whom it belongs to judge, various expedients have been devised—say, for example, examination performed in some established mode under the eye of the judge—all or most of which are more or less employed under the system or judicial procedure in all civilized countries.

In other words, for diminishing the influence of the causes of deception or untrustworthiness in evidence, the influence of certain powers and operations is more or less relied on, and employed and endeavoured to be turned to account, in the character of securities against deception in evidence, or say securities for trustworthiness in evidence:—whence it follows, that in proportion as the efficacy of the securities thus employed corresponds to the intention with which they are employed, any article of evidence in relation to which no use or less use is made of the aggregate force of these securities, will be inferior to an article of the same sort, in relation to which that aggregate force is made the most of.

If, again, the process by which the force of these securities against deception is applied to a lot of evidence be termed scrutinizing, or say scrutinization, proportion to the same effect may be expressed in terms still more concise by saying—evidence altogether unscrutinized, or less perfectly scrutinized, will be inferior to the same evidence more perfectly scrutinized.

Thus far as to such species or lots of evidence as, being compared one with another, are capable of coming into competition. But between two large divisions which include the whole possible extent of the field of evidence, no competition, no choice, can take place. These are the divisions respectively denoted by the terms personal and real evidence.

By personal evidence, I understand all such evidence as consists of discourse or language of any kind, uttered by any being belonging to the class of persons,—uttered by him, and containing or professing to contain any perception derived, or professed by him to have been derived by him from any matter of fact.

By real evidence, I understand all such evidence as is not comprised under the description of personal evidence: all evidence not consisting of a discourse held, or purporting to have been held, by a being belonging to the class of persons.