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.)

SECTION I.

ITS INAPTITUDE AS AN INSTRUMENT OF COMPULSION.

In the case of debt, imprisonment, if in any character, can only be justifiable in the character either of an instrument of punishment or of an instrument of compulsion.

In the character of an instrument of compulsion, suffering being an unavoidable attendant, not only of the use of this instrument, but of compulsion itself by whatsoever means produced, it cannot be justified if it be either groundless, or needless, or inoperative, and thence useless.

In the particular circumstances of the individual case, has the application proposed to be made of it a just ground?—is it necessary to the accomplishment of the proposed object?—does it upon the face of it bear a promise to be effectual?

Unless, in relation to every one of these points, the judge have antecedently taken the requisite measures for satisfying his judgment and framing a decision accordingly, such measures not being either physically or prudentially impracticable, the application which by his authority, order, or permission, is made of this afflictive instrument, is unjust and indefensible.

For obtaining any such satisfaction, there exists but one possible means, and that is—receiving evidence: and in this case as in so many others, the testimony of the party himself is not only the best evidence, but to such a degree the best evidence, that without it, all other possible evidence put together which the world is capable of furnishing, may be pronounced insufficient.

In the sort of case in question, it has been and continues to be the interest of the judge to refuse ever to give admission to evidence either to this or so much as to any sort of evidence in general, and in particular in this best and on all occasions indispensable shape. Accordingly, in relation to no one of those several heads will any judge ever give admission to this best and most indispensable sort, not to speak of any other sort of evidence.

In the hearing of evidence, especially in the extraction of it in the shape of testimony, much labour must be expended, and little power is exercised. In the making of presumptions, especially if, as here, without grounds, no labour is expended, and much power is exercised.

Accordingly, on this occasion as on so many others, the door is shut against evidence, and presumptions made without grounds are substituted to it.

In a large proportion of the whole number of instances in which the instrument of afflictive imprisonment is applied in this character, these presumptions are, to the knowledge of all mankind, every one of them false: but in this as in those instances, in the consciousness of such falsity no impediment is found to their being made.

Of evil in this shape and to this purpose, the application cannot have a just ground, unless from the defendant to the plaintiff not only a debt be due, but a debt exceeding in value the aggregate of all debts, if any, due from the plaintiff to the defendant. Of all points concerning which, in a case of the sort in question, the judge, if justice were his object, would be solicitous to obtain some information, this is one: but concerning this point, English judges, in so far as it has been in their power, have taken care to keep all such information out of their reach.

To the accomplishment of the object proposed—viz. the discharge of the debt, supposing a debt due—is this infliction necessary? Another point this, in relation to which the judge refuses to inform himself. Altogether unnecessary it is, as often as the solvency of the alleged debtor is out of doubt.

Forcing a man to pay money that he does not owe—forcing a man to render in any shape a service that he does not owe—is not justice.

Forcing a man to pay for another, money which not he himself but that other owes, is another result equally incompatible with justice. In this case, as in the other, it is forcing a man to pay money that he does not owe.

By the vicarious suffering thus indicted, no benefit is produced to the whole community of which these several parties are members. He who trusts his money in the hands of another, does it in contemplation of some benefit—of benefit in some shape or other;—and if it be in no other shape than that of the pleasure of beneficence, it makes to this purpose no difference.

To the relation of creditor, if contracted with the party’s consent and knowledge, benefit in some shape or other is always expected, and generally is essentially attached:—to the relation of friend to the debtor—friend able and willing to afford relief to his suffering, by taking up more or less of his burthens—no such benefit is, unless by mere accident, attached.

Upon the face of it, to the purpose in question, the infliction in question—does it carry any sufficient promise of being effectual? Not it indeed.

At the charge of the debtor himself, effectual it cannot be, in so far as property to the amount in question—property fails of being in his possession, or at his command.

At the charge of any other person, in the character of friend, prompted by sympathy to relieve the debtor from this affliction—that it should be effectual, is not for the common good of all persons concerned—is not, as hath been already shown, a desirable result.

At the charge of the debtor himself, when these necessary means are actually at his command, its efficiency, managed as it is, is in a high degree imperfect, in comparison of what it most obviously might and ought to be.

To the many a hell, to the comparatively few a prison, is, though not indeed a paradise, yet however a place of comfort—of comfort obtained at the expense of the injured individual by the interested connivance of the judge.

Solitary confinement—to the purpose to which this severe infliction is least well adapted—to the purpose of punishment—has in a most inordinate degree been with the most unthinking levity but too often applied:—solitary confinement continued for two years together, and the victim not yet heart-broken, nor reduced to a state of melancholy madness.

To the wrenching out of the grasp of the depredator the property of his creditor, nothing that has ever been known by the name of torture, supposing it necessary and at the same time actually effectual, or but for the wilful default of the debtor effectual, would be misapplied: for if, having the property at his command, rather than give it up to him to whom it is due, it be his choice to endure the torture, the proof is altogether conclusive, that be the extremity of the torture what it may, he experiences in the idea of the detention—he experiences, from whatsoever source, a countervailing and more than equivalent, howsoever malignant and unenviable, pleasure.

Happily, to the production of the desirable result, no such alarming, no such dangerous instrument is necessary—no such instrument is so effectually conducive as the familiar—indeed too familiar and simple instrument—solitary confinement.

Two years have scarcely satisfied the unfeeling and unthinking severity by which it has been applied to the purpose of punishment:—two weeks would in most, if not in all instances, suffice for the purpose of compulsion thus directed—for the purpose of compelling disclosure and surrender of effects for the benefit of creditors.

Of suffering, in the character of an instrument of compulsion operating by its intensity—as in the case of what is commonly understood by the name of torture—it is a property, by the stimulus applied to the mind, to excite such a degree of resisting force as hath sometimes been found sufficient to prevent the attainment of the object aimed at by it. Of solitary confinement, especially it alone employed as an instrument of compulsion, accompanied, as it ought to be, with spare diet and perpetual darkness, it is the property to break the spirit, as the phrase is—to infuse weakness into the mental frame, the desired and salutary weakness,—to deprive it of the power of applying what in the present case is by the supposition unjust resistance.