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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 VIII.

BEST EVIDENCE, WHAT?

The most advantageous mode of extracting and shaping evidence having been discussed as in the preceding chapter, we are now in some measure prepared for entering upon the question—What is the best evidence? Of the several species of evidence before enumerated, which is the best? Answer, in general terms, that which is most conducive to the ends of justice, to rectitude of decision in the first place—to rectitude of decision exclusively,—except in the cases, if such there be, where undue decision or non-decision would be a less evil than the expense or other vexation which might be the necessary attendant on the obtainment of the evidence by which rectitude of decision would be insured.

Another question:—To what purpose the inquiry what is the best species of evidence? Can any mass of evidence be in any case too great?—in any case, can the grounds in which the persuasion of the judge reposes itself be too solid? Suppose two pieces of evidence of different degrees of goodness,—can the superior goodness of the one, afford a reasonable ground for putting an exclusion upon the other? Gold is more valuable than silver: but was that ever a reason to a man for refusing a mass of silver, when he could have it gratis?

On this occasion, one broad line of distinction presents itself in the first instance. In one class of cases, it depends upon the legislator whether the evidence exhibited shall be of one or the other of the two opposite and contrasted species:—in the other class of cases, the species are such as they are; and the choice as between one species or the other of the pair, is beyond the sphere of the legislator’s influence.

In the former class of cases, the evidence as between species and species is the same in substance, and it rests with the legislator to make his option as between shape and shape. In this class of cases, the practical use of the inquiry, which is the best evidence, is clear beyond dispute.

In the other class of cases the question still presents itself, to what purpose seek to ascertain which of the two contrasted species is preferable? The answer is,—the practical use, if any, will depend upon the question, whether the two contrasted species are in conjunction with or in opposition to each other: proposed to be exhibited on the same side of the cause, the one or the other; or on the opposite sides?

If on the same side, to what practical use can the determination tend, supposing it to be determined that the one sort is preferable to the other? To this and this alone:—viz. that in case of superfluity, the inferior sort rather than the superior shall be unexhibited.

If on different sides, to this and this alone—viz. that if on the one side all the evidence exhibited be of the one sort, on the other side all the evidence exhibited be of the other sort, the persuasion should place itself, as of course, on that side which has the superior sort of evidence for its support.

Thus much appears plain and unexceptionable; but a circumstance not to be neglected is, that with a view to practice, the question of superiority as between evidence and evidence lies ultimately—not between one species of evidence and another, but between one individual lot of evidence and another. If in this view the superiority as between sort and sort be worth inquiring about, it is only with reference to and as a means of coming at the solution of the ultimate question, as between individual and individual. From the determination that the first of two contrasted species was preferable to the second, no absolute conclusion could follow as to the superiority possessed by an individual lot belonging to one species in comparison with an individual lot belonging to the other species, on any other supposition than that the least persuasive individual lot of the superior species is in every instance more persuasive than the most persuasive individual lot of the other species. To judge whether this superiority in comparison of species over species be thus uniform and all-extensive, is a question the answer to which must wait, till the time come for bringing the several pairs of contrasted species under review with reference to this purpose.

The examination, to be complete and completely satisfactory, will of course require to be carried through every species of evidence; that is, through every two sorts of evidence which are capable of being distinguished from one another for this purpose; and at any rate, through the several sorts of evidence which have been already indicated.

Let us begin with the class of cases first described. It is that topic of the two which will be most productive of satisfaction—the only one that will be found productive of any very considerable practical use;—unless it be that of serving more effectually to guard the legislature against those illusions—the result of partial and hasty views—by which whole species of evidence have been marked out for inexorable exclusion.

I. First class of cases:—the case in which the question is between shape and shape (and the choice of the shape depends altogether upon the legislator) affords the following pairs of contrasted species:—

1. Scrutinized evidence, and unscrutinized evidence: and in the former case, more perfectly scrutinized, and less perfectly scrutinized.

2. Written and oral: or, to put the distinction upon its proper and clearer footing, evidence expressed by permanent signs, and evidence expressed by evanescent signs.

3. In the case of written evidence—original and unoriginal: that is, in this case autographic, and transcriptious.

I.

Comparison the first—Scrutinized with unscrutinized; and more perfectly with less perfectly scrutinized.

The catalogue of scrutative arrangements has already been brought to view: they are comprised in the mode of proceeding to be pursued in the examination of witnesses:—1. Questions in a series—successive, not simultaneous; that invention, mendacious invention, may have the less light to work by;—2. Answers extemporaneous, and thence unpremeditated and uninstructed;—3. Questions not immutably prearranged, but each succeeding question grounded on, and thence guided by the answer to the question last preceding;—4. Depositions of each preceding deponent kept concealed from each succeeding deponent: that memory, and not mendacious instruction, any more than mendacious invention, may be the guide;—5. Cross-examination; i. e. the testimony which has been extracted by questions put by the party at whose instance the witness is produced, checked and completed by questions propounded on the other side;—6. Confrontation upon occasion as necessary between deponent and deponent; for example, non-litigant witness and defendant; that personal identity may be the more satisfactorily established;—7. Re-examination of a deponent upon occasion; that other depositions given on a preceding examination may be corrected by lights collected as well from the depositions of precedently examined deponents, when communicated to him, as from his own maturer recollections;—8. Publication; certain, or more or less probable, and consequently expectation entertained by each deponent of the publicity of his depositions; and thence an increased chance for the ultimate detection of any errors on his part, designed or undesigned.

If the above arrangements, each of them without exception, have their use, in how high a degree must a lot or an article of evidence that for the depuration and completion of it has had the benefit of their united influence, be superior to one which has not had the benefit of any part of that influence! But moreover, if there be not one of them that in the state of things to which it applies has not its use, it will follow, that by any one of them that can be added, the superiority of the security for the correctness and veracity of the evidence will be increased; by every one omitted, it will be decreased.

II.

Comparison the second—Written Evidence, with oral; or, more expressively and properly, Evidence expressed by permanent signs,—with Evidence expressed by evanescent signs.

If permanence on the part of the character by which a body or an article of evidence is expressed, be necessary to the prevention of subsequent deperition and misrepresentation, as well as for the diffusion of it, upon occasion, with whatever degree of publicity the case may require, it will be evident in how important a degree the written, say rather the permanent form, must be superior to the unwritten, say rather the evanescent.

Establishment—the practice established under both systems, the Roman and the English—will here be apt to suggest another comparison:—oral scrutinized—say completely scrutinized in the best manner; with written unscrutinized, for such in fact is the distinction, the comparison, the option, that blindness and neglect have established and brought to view in the practice of both systems: and which, it may accordingly be asked is preferable, or superior to the other?

I answer—The comparison, in a practical view, is altogether needless. No body of evidence—not any the minutest article of personal evidence—is what it ought to be, unless it be scrutinized, completely scrutinized, in the best and completest manner, and moreover in the written form, at the same time. Between the properties of purity and completeness on the one hand, and permanence on the other, there is not the smallest degree of natural repugnancy. In the best mode, or rather only tolerable mode, of extraction, that which is in use in England in the trial by jury, these properties are actually combined. Each article of evidence—each answer, as fast as it is drawn through the scrutative tests—is laid hold of and rendered permanent by writing.

In Romano-Gallic jurisprudence and legislation, the question is not only started, but decided without doubt or exception; written evidence, the best without dispute. Preuve par écrit, preuve littérale, is the perfection of evidence:—preuve testimoniale, called also preuve orale, is but a makeshift. What is this preeminently superior species of evidence? It is a species of evidence uncompleted, unpurified by any of the scrutative operations:—what is the other, so decidedly inferior, the makeshift sort of evidence? It is the only one of the two that has been subjected to the salutary action of any of these tests,—one that, though not to all, has been subjected to most of them—to all of them, cross-examination excepted (meaning cross-examination by questions propounded by the adverse party:) nor even is that excepted in all cases—viz. in penal cases instituted in prosecution of the most highly penal classes of offences.

And in what ratio is the superiority of such written evidence, in comparison with such oral testimony? On the ground of reason, the question is palpably an absurd one:—the answer is impossible. On the ground of establishment, the answer is plain and clear:—exactly in the ratio of two to one. In a certain class of cases, indeed, oral is thrown out altogether,—it being in those cases good for nothing. In another class of cases, it is however admitted; but where it is admitted, it is inferior to the other, and in that same ratio. How so? Because, in the case of oral testimony, where that species of evidence is admitted to form a ground for a decision, there must be the testimony of two witnesses to warrant a decision:—whereas, in the case of written testimony, where that species of evidence is to be had, the testimony of a single witness serves. Absurdity the first:—to pretend to require the evidence of two witnesses as a necessary ground of persuasion. Absurdity the second:—to accept at the same time of the testimony of a single witness as equivalent. Absurdity the third:—to prefer to almost completely scrutinized evidence, evidence altogether unscrutinized, merely because the signs by which it was expressed at the first moment of exhibition were of the permanent kind, instead of the evanescent. Absurdity the fourth:—to reject this double portion of scrutinized evidence, when half the quantity of unscrutinized evidence is admitted and treated as conclusive. Observe all the while, that the evidence thus styled unwritten is at the time at which the decision comes to be pronounced, just as effectually written as that by which the name of written is monopolized:—the only difference is, that the so-called unwritten, is not written till it has been improved by the action of the meliorative and completive tests. It is true, that in some cases the written evidence will be fresher in the memory than the oral, as in the case of preappointed evidence: but the preference extends much beyond these cases.

And is the procedure of the Romano-Gallic system so completely absurd, then, as it here stands represented? Not exactly so,—not quite so absurd in substance as in appearance. The sort of evidence here in view, under the name of written evidence, is in most cases preappointed, and in some even official evidence: and that it is in the nature of preappointed evidence in general, and more particularly of official evidence, to command a more uniform degree of confidence, to generate a more uniform degree of persuasion than casual evidence, has been already submitted, and will be made more particularly apparent in its place.

Where, then, lies the true comparison?—where the real distinction? Not between written evidence and unwritten, but between preappointed evidence and casual: for though both should be written, or both for ever unwritten, the ground of preference would be the same.

Barring criminal falsification, written evidence, being permanent, expresses itself as itself at all times. Of oral evidence, the identity vanishes as soon as it is exhibited. The next moment it, or rather what professes to be it, is no longer original evidence, but unoriginal, hearsay evidence. Its identity is still questionable, though, when exhibited a second time, it is exhibited by the same mouth.

Written evidence—evidence by permanent signs—may pass through a hundred hands, each taking transcript of it,—each successive transcript taken, not from the original, but from the last preceding transcript: it might in this way pass through a hundred hands, and still in substance—nay even in words—be exactly the same evidence. What would have become of a piece of oral evidence of the same tenor, after it had passed in this same way, each time at the distance of a few days, or though it were but a few hours or minutes, through a hundred mouths?

Suppose in both cases the piece of evidence in question—oral in one case, written in the other—to be brought into existence on any occasion but a judicial occasion,—in any place but a court of justice. On this supposition, the oral evidence, whenever the substance or alleged substance of it comes to be exhibited in a court of justice, cannot exhibit itself but through the medium of another mouth, or at least a separate narrative from the same mouth, and therefore, in the first case, stands upon a footing nowise different, and in the other case but little different, from that of unoriginal hearsay evidence.

In these circumstances may be seen just grounds for preferring written to oral evidence: but these are not the grounds upon which that preference is founded in the cases above referred to.

Comparison the third—Original with transcriptitious Evidence.

The superiority of the former is altogether out of doubt. In the case of transcriptitious evidence, the maximum of ideal perfection would be equality with respect to the original; and at this absolutely highest pitch it will seldom happen to it to stand in the opinion of a judge. Intentional and fraudulent departure on the part of the transcriber will always present a possible cause of departure:—unintentional incorrectness, the result of human infirmity, presents such a cause, the efficiency of which, cannot in any ordinary instance, be regarded as being in a considerable degree improbable. By successive revisals, or even by a single revisal, security may be carried to a degree sufficient for practice even in the most important cases: but mathematically and strictly speaking, absolute equality with the original is a limit towards which a transcript may be ever rising higher and higher, but up to which it can never rise.

From the above three comparisons, the answer to the question, What is the best evidence?—meaning, what is the best of all possible forms in which a mass of evidence given in substance can be presented?—may, it should seem, be exhibited in these words:—The best form to which the testimony of a given person can be consigned is—that in which, being scrutinized in the completest manner, it is in the course of the scrutiny put into the form of a written instrument: whereupon, as often as occasion shall present itself for the taking it into consideration for any judicial purpose, it is the original instrument in question, and not a transcript of it, that is so employed.

From the opinion formed—from even the demonstration obtained of the superiority as between species and species of evidence, the practical conduct proper to be observed by the legislator does not however follow with any such degree of uniformity as at first sight might be supposed:—not even in this class of cases, in which the choice may at first sight appear so completely dependent on the will of the legislator:—

1. In the first place, though in general, and taking together the whole aggregate of individual cases, it depends for the most part upon the legislator, whether to have the evidence in the superior or the inferior shape, yet that is by no means the case in each individual instance. Owing to different causes that will presently be more particularly brought to view—as death—infirmity of mind or body, curable or incurable—unavoidable absence, for example of persons—deperition or displacement of papers,—this or that piece of evidence may not be obtainable in the superior form, and yet may be obtainable in some inferior form. Comes then the question—shall the evidence be employed in the inferior form in which it is obtainable, or shall it be set aside and rejected altogether?

2. In the next place, what in this point of view is the best evidence, may not in every point of view be the most eligible. Rectitude of decision being the main and direct object in view of this and every branch of procedure is the only object to which the inquiry has principally and constantly been directed. But this, though the principal object, is but one of a number of objects, none of which ought for a moment to be lost sight of. Avoidance of the several collateral inconveniences—delay, vexation, and expense,—in these several collateral inconveniences the legislator may observe so many collateral objects, so connected with the main end that, for the avoidance of these, considerable sacrifices of the main object will in many instances be required. Of such or such a description is the best evidence which the case admits of; but to exhibit that best evidence may in this or that case be an operation attended with such a degree of delay, vexation, expense—any or all of these inconveniences—that the difference in point of superiority, between the best when charged with them, and the next best when clear of them, may not be worth the purchase.

In the effect of the docimastic process upon these two different species of evidence, a very considerable effect will readily be perceived. Parol evidence, brought into existence as it is under the influence and by the very operation of the docimastic process, is converted into written evidence—not the whole together, but in parts and gradually as it comes into existence as the words make their way out of the deponent’s mouth.

When a piece of written evidence is subjected to the docimastic process, the result is,—not the original document—the piece of written evidence alone,—but a sort of compound mass, of which the written document forms the basis; the remainder being a mass of parol evidence reduced to writing in its nascent state, and superadded to the original piece of written evidence. The man whose discourse the writing is, is subject to examination vivâ voce, and his answers taken down and put into writing as they issue from his lips: the original writing remains as a standard of comparison for the result of this extemporaneous examination, each serving as a test by the help of which the truth of the other is tried and judged of.

In this view of the matter, a mass of evidence collected upon the best principles, and hereby put into the best shape, will unite three characteristic advantageous properties:—1. Originality,—(original writing being preferred to copies;—and in oral evidence, the narrative of the observing witness himself, to the narration given by one whose information is derived solely from a former narration given by an observing witness speaking out of court;)—2. Triedness, if the term may be allowed;—3. Permanence;—be it oral, be it written, be it in which of the two shapes it will,—at the moment of its first coming into existence, the evidence itself will of course be regarded as preferable to any supposed repetition made of either the purport or the supposed tenor of it:—from the action of the docimastic process, it will receive triedness:—from the written instrument to which it is consigned, it will derive at the instant of its appearance, permanence.

II. Second class of cases:—in each, a pair of contrasted species of evidence, where the distinction turns, not upon the form or mode of exhibition—a circumstance variable at the command of the legislator,—but upon substance—upon the unchangeable nature of the evidence itself.

Comparison the first.—Evidence at first hand with hearsay evidence.—The superiority of first hand evidence over hearsay evidence, even of the first remove, and à fortiori of every ulterior remove, stands upon ground of the same sort with the superiority of original over transcriptitious evidence in the particular case of written evidence—upon ground of the same sort, but upon much clearer and stronger ground. Mendacity apart, in the case of transcriptitious evidence, the only efficient cause of aberration to the action of which it is exposed, is a deficiency of attention:—in the case of hearsay evidence, the same cause operates with augmented force, with the addition of another very powerful cause—failure in point of memory; a cause the force of which goes on increasing ad infinitum with the distance in point of time between the hearing of the supposed extrajudicial statement or narrative, and the supposed repetition made or said to be made of it for the purpose of justice.

Thus much upon the ground of simple incorrectness,—a ground which of itself is amply sufficient to warrant the decided and invariable superiority of first hand over the best possible modification of hearsay evidence.

On the ground of mendacity and fraud, the persuasive force of hearsay evidence stands exposed to further defalcations.

The choice as between evidence at first hand, and hearsay evidence, depends (it may be objected) upon the legislator in this case, as well as in the three former ones:—for where the percipient witness is forthcoming, it depends upon the legislator either to insist upon his coming forward in the character of a deposing witness, or to accept of his testimony, i. e. of what passes for his testimony, through the medium of another person, who in such case takes upon himself the function of a deposing witness. Thus much cannot be disputed:—but in this case the question turns not upon the form, but upon the very substance of the evidence. The question is not, in what form the testimony of a given witness shall be exhibited, but whether, in a case where the testimony of a single witness would be the best, it shall be excluded in this way by the interposition of a second witness.

Where the case affords first-hand evidence, the legislator, if he think fit, may permit or order it to be converted into hearsay evidence. But it will often happen that a lot of evidence—a statement or narrative—is not to be had in any other shape than that of hearsay evidence—the percipient witness not being forthcoming. In these cases, it does not depend upon the legislator to have it converted into first-hand evidence. He must admit it in this shape, or not have it at all.

On another ground—an additional and perfectly distinct ground—the inferiority of hearsay evidence, in comparison of first-hand evidence, has already been established. In all hearsay evidence, in respect of the supposed original, the essential and vital part of it, it is completely and necessarily unscrutinized. It is the essence of hearsay evidence to contain two essentially distinct narrations or statements of the same fact or supposed fact:—the one a narrative or statement indubitably given, the deposition given by the deposing witness;—the other, a narrative or statement said by him to have been given:—the narrative or statement said to have been given at the prior point of time in question, in the other place in question, by the alleged percipient or intermediate witness. The narrative or statement given by the deposing witness may be scrutinized or unscrutinized:—if scrutinized, more or less completely scrutinized;—but the supposed narrative or statement alleged by the deposing witness to have been given by the supposed extrajudicial witness, whether percipient or intermediate, can never be subjected to any the slightest degree of scrutiny.

Comparison the second—Preappointed evidence with casual evidence.—Here, as in some of the preceding cases, the superiority is written upon the face of the very terms themselves. Preappointed evidence is picked evidence: casual evidence is evidence taken as it comes.

Comparison the third—Official with unofficial preappointed evidence.—Subordinate to the distinction between preappointed and casual evidence, is that which applies to preappointed—the distinction between official and unofficial evidence.

Here also the superiority, at least in all ordinary cases, is written in characters not unconspicuous. Unofficial preappointed evidence is evidence picked by individual parties, or perhaps by only one of two contending parties:—official evidence is evidence picked by the legislator, and under him by the administrator, or even by the judge.

Comparison the fourth—In the case of casual evidence, personal with personal—the evidence of a person of one description, with the evidence of a person of another description.

To this head may be referred the numerous causes of exclusion with which the English as well as the Roman law teems in such abundance.

The impossibility of establishing, on the ground of any superiority as between species and species of personal evidence, any determinate superiority as between individual and individual witness—much more to such a degree as to build, either upon the ground of certain falsity or inutility, a peremptory exclusion—has been already more than once indicated, and some foundation at least laid for the establishment of it. Whether the danger of simple incorrectness or bias or mendacity be considered, the degree of credibility is, in the instance of every species of witness that can be described, susceptible, of almost any degree of persuasive force, from the lowest to almost the highest: to the very highest in most cases—to the very lowest in all cases.

On the ground of simple incorrectness, it has been seen that the force of the several causes of aberration from the truth is variable ad infinitum.

So far as mendacity is concerned, it has been seen that veracity or mendacity depends upon the preponderance, as between the several causes of veracity and mendacity,—causes of and obstacles to veracity,—motives acting in the character of tutelary motives—motives acting in the character and direction of seductive motives;—and that the force of all these various elementary and antagonizing circumstances is in each instance susceptible of variation in an indefinite degree;—and that, of the actual degree of force with which they actually operate in each individual instance, it is impossible that any tolerably accurate estimate can be made by any human eye.

Yet from an observation made of the exposure of the mind in question to the action of some one motive acting in the character and direction of a seductive motive, not legislators only, but even judges, have of their own authority taken upon them to shut the door of justice against witnesses in crowds in a vast variety of instances; and thus acting—with the most self-satisfied confidence—with an acquaintance with the anatomy of the human mind below that of babes and sucklings, in the degree in which deliberate error is more remote from truth than simple ignorance.

Comparison the fifth—Personal with real evidence. From a comparison between these two species of evidence, little practical use can be derived. They can never come in competition with each other: and it is seldom that either can supersede the other. Supposing them on opposite sides from the mere statement that on the one side the evidence is of the real kind, on the other side of the personal kind, it is impossible to say with reason which preponderates. Real evidence without personal, is scarcely susceptible of being so perfectly satisfactory as personal is without real, or indeed of being sufficiently satisfactory to afford a reasonable ground for decision of itself. Conception being assumed for the purpose of persuasion, personal evidence may by the number of witnesses be strengthened to such a degree as to render real evidence superfluous:—whereas in some cases (for example, in cases of disputes concerning boundaries,) the matter of fact in question is not capable of being so much as conceived without the help of real evidence.

By real evidence, even where the nature of the case does not render it absolutely indispensable—where sophistication, fabrication, and alteration, are out of the question—a degree of satisfaction may in some cases be afforded, beyond any that can be afforded by any admissible quantity of personal evidence.

Suppose evidence of both these descriptions forthcoming on one and the same side, it is impossible to conclude, from the mere contemplation of the specific difference, that either is superfluous:—in this or that particular individual case, it may happen that the real evidence which the case affords may be rendered superfluous by the body of personal evidence: but so may any one part of the body of personal evidence by the rest.*

If evidence be viewed by other eyes than those of the judge, as is very commonly the case, at least in English judicature, it is a sort of real evidence at second hand—a sort of composite evidence—supposed real evidence exhibiting itself through the medium of personal evidence.

Comparison the sixth—Direct with circumstantial evidence.

Here, likewise, the title to superiority will appear almost as soon as the import of the denominations is apprehended. Direct evidence is evidence of the fact itself—evidence from whatever sources drawn, and in whatever shape exhibited. Circumstantial evidence is evidence not so much as tending to produce any degree of persuasion in regard to the existence of the principal fact, any otherwise than in so far as it tends to give birth to a like persuasion in respect of the evidentiary fact. For a persuasion of, to be altogether equivalent to a demonstration of, the principal fact, the connexion between the one and the other must be absolutely an inseparable one: and the instances in which so perfectly close a connexion is discernible will in practice be extremely rare. In point of persuasive force, circumstantial evidence, circumstanced in the same way in all other respects, cannot at any rate rise higher than to an equality with direct evidence: it will very seldom rise so high: and it may fall short of rising to the same height, by any distance on a scale, to the length of which no limits can be assigned.

Not but that circumstantial evidence will in most, if not all cases, be a very desirable addition and corroboration to a mass or lot of direct evidence.

Not but that circumstantial evidence may even suffice to produce the degree of persuasion requisite even for causes of the highest importance—for causes in which even life is at stake. Accordingly, under the English law, though perhaps not under the Roman, capital sentences have been pronounced and executed upon the single ground of circumstantial evidence, without a particle of direct evidence.

It is commonly obtainable with greater facility, in greater quantity, and of a quality less open to suspicion than in the case of direct evidence. It is less easily concealed or suppressed, and more frequently obtainable from less exceptionable, or altogether unexceptionable witnesses.

Written extrajudicial Evidence.

In speaking of the several contrasted and respectively commensurable species of evidence opposed to each other in pairs, it will be necessary to comprehend in the same view the anomalous incommensurable species of evidence, with which no other can be found to contend or match:—I mean that of which some description has already been given under the name of written extrajudicial, and which is also supposed to be unofficial, and in every respect unpreappointed, evidence.

The evidence before spoken of, as well under the name of written as under the name of oral, has been supposed to owe its birth as well as its exhibition to the creative powers of judicature. Even in the case of hearsay evidence, though this could not be affirmed of the supposed narrative or statement of the supposed percipient or any intermediate witness, it is not the less true of the immediate evidence—the evidence of the deposing witness.

Looking a little more closely at this anomalous, but very frequently recurring species of evidence, we shall find it to be analogous in its essential properties to the evidence of a percipient or pretended percipient witness:—the difference is—that it is fixed by virtue of writing, and introduced to the notice of the judge, without the intervention of any person in the character of a deposing witness; that sort of deposition excepted, which consists in the mere act of authentication—the act by which it is presented as being the discourse of such or such an individual, for whose discourse it is intended to pass. To determine the persuasive force possessed by the species of evidence thus denominated, it will be necessary to have examined the nature of hearsay evidence. For it is only by making the analysis, and as it were the decomposition of hearsay evidence, that a correct and clear conception of its nature can be obtained. We shall find it consisting of the first of the two distinct members, of which members at the least, every distinct article of hearsay evidence essentially consists,—I mean the supposed evidence of the supposed percipient, or extrajudicially narrating witness,—but in a fixed and thereby improved state, into which it is put by being consigned to permanent signs. Accordingly, like that frustrum of a piece of hearsay evidence, we shall find it incapable of being subjected to the action of the depurative and completive processes so often mentioned. You might cross-examine the writer if you had him before you, but the writing itself is incapable of being cross-examined.

[* ]Cases, it is true, are not wanting, in which a degree of satisfaction will be afforded by real evidence, beyond the highest that can be afforded by any quantity, at least any admissible quantity, of personal evidence. Among the sources of real evidence, is the relation of cause and effect; and between cause and effect (meaning species of cause and species of effect,) the connexion is in many instances, especially in physical agency, closer by a great deal, and less frequently broken by a great deal, than the connexion, between the fact of the exhibition of this or that lot of human testimony, and the truth of that testimony, i. e. its complete exemption as well from incorrectness as from mendacity. By the existence of a piece of handwriting, the existence of a writer is proved with more complete persuasion than by the testimony of any number of witnesses; though not necessarily with equal certainty the existence of this or that individual in the character of the author of that individual piece of writing:—by the existence of a piece of painting or sculpture, the existence of a painter or sculptor: and though in these last instances, the imitative operativeness of nature may have gone farther than could have been supposed, yet there are lengths up to which, were it to be affirmed to have been stretched, the evidentia rei, even at second hand, and though only reported through the medium of personal evidence, would probably be thought to oppose a more powerful mass of counter-evidence than could be overcome by any admissible number of witnesses.a

[* ]Cases, it is true, are not wanting, in which a degree of satisfaction will be afforded by real evidence, beyond the highest that can be afforded by any quantity, at least any admissible quantity, of personal evidence. Among the sources of real evidence, is the relation of cause and effect; and between cause and effect (meaning species of cause and species of effect,) the connexion is in many instances, especially in physical agency, closer by a great deal, and less frequently broken by a great deal, than the connexion, between the fact of the exhibition of this or that lot of human testimony, and the truth of that testimony, i. e. its complete exemption as well from incorrectness as from mendacity. By the existence of a piece of handwriting, the existence of a writer is proved with more complete persuasion than by the testimony of any number of witnesses; though not necessarily with equal certainty the existence of this or that individual in the character of the author of that individual piece of writing:—by the existence of a piece of painting or sculpture, the existence of a painter or sculptor: and though in these last instances, the imitative operativeness of nature may have gone farther than could have been supposed, yet there are lengths up to which, were it to be affirmed to have been stretched, the evidentia rei, even at second hand, and though only reported through the medium of personal evidence, would probably be thought to oppose a more powerful mass of counter-evidence than could be overcome by any admissible number of witnesses.a

[a]Case of the supposed natural head of Louis XVI. to be raffled for, for a subscription of £10,000.—See Mon. Mag. June 1, 1803, p. 442.