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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.)

PREFACE.

The papers, from which the work now submitted to the public has been extracted, were written by Mr. Bentham at various times, from the year 1802 to 1812. They comprise a very minute exposition of his views on all the branches of the great subject of Judicial Evidence, intermixed with criticisms on the Law of Evidence as it is established in this country, and with incidental remarks on the state of that branch of law in most of the continental systems of jurisprudence.

Mr. Bentham’s speculations on Judicial Evidence have already been given to the world, in a more condensed form, by M. Dumont, of Geneva, in the “Traité des Preuves Judiciaires,” published in 1823: one of the most interesting among the important works founded on Mr. Bentham’s manuscripts, with which that “first of translators and rédacteurs,” as he has justly been termed, has enriched the library of the continental jurist. The strictures, however, on English law, which compose more than one-half of the present work, were judiciously omitted by M. Dumont, as not sufficiently interesting to a continental reader to compensate for the very considerable space which they would have occupied. To an English reader—to him at least who loves his country sufficiently well to desire that what is defective in her institutions should be amended, and, in order to its being amended, should be known—these criticisms will not be the least interesting portion of the work. As is usual in the critical and controversial part of Mr. Bentham’s writings, the manner is forcible and perspicuous. The occasional obscurity, of which his style is accused, but which in reality is almost confined to the more intricate of the theoretical discussions, is the less to be regretted, as the nature of the subject is of itself sufficient to render the work a sealed letter to those who read merely for amusement. They who really desire to possess useful knowledge do not grudge the trouble necessary to acquire it.

The task of the Editor has chiefly consisted in collating the manuscripts. Mr. Bentham had gone over the whole of the field several times, at intervals of some length from one another, with little reference on each occasion to what he had written on the subject at the former times. Hence, it was often found that the same topic had been treated two and even three times; and it became necessary for the Editor to determine, not only which of the manuscripts should supply the basis of the chapter, but likewise how great a portion of each of those which were laid aside might usefully be incorporated with that which was retained. The more recent of the manuscripts has in most cases been adopted as the groundwork, being generally that in which the subjects were treated most comprehensively and systematically; while the earlier ones often contained thoughts and illustrations of considerable value, with passages, and sometimes whole pages, written with great spirit and pungency. Where these could conveniently be substituted for the corresponding passages in the manuscript chosen as the basis of the work, the substitution has been made. Where this was thought inexpedient, either on account of the merit of the passages which would thus have been superseded, or because their omission would have broken the thread of the discussion, the Editor (not thinking himself justified in suppressing anything which appeared to him to be valuable in the original) has added the passage which was first written, instead of substituting it for that which was composed more recently. From this cause it may occasionally be found in perusing the work, that the same ideas have been introduced more than once, in different dresses. But the Editor hopes that this will never prove to be the case, except where either the merit of both passages, or the manner in which one of them was interwoven with the matter preceding and following it, constituted a sufficient motive for retaining both.

The plan of the work having been altered and enlarged at different times, and having ultimately extended to a much wider range of subjects than were included in the original design, it has not unfrequently happened that the same subject has been discussed incidentally in one book, which was afterwards treated directly in another. In some of these cases the incidental discussion has been omitted, as being no longer necessary; but in others, it contained important matter, which was not to be found in the direct and more methodical one, and which, from the plan on which the latter was composed, it was not found possible to introduce in it. In such cases, both discussions have usually been retained.

The work, as has been already observed, not having been written consecutively, but part at one time, and part at another, and having always been regarded by the author as an unfinished work, it has sometimes (though but rarely) occurred, that while one topic was treated several times over, another, of perhaps equal importance, was not treated at all. Such deficiencies it was the wish of Mr. Bentham that the Editor should endeavour to supply. In compliance with this wish, some cases of the exclusion of evidence in English law, which were not noticed by Mr. Bentham, have been stated and commented upon in the last chapter of the book on Makeshift Evidence, and in two chapters of the sixth part of the book on Exclusion.* He has likewise subjoined to some of the chapters in the latter book, a vindication of the doctrines which they contain, against the strictures of an able writer in the Edinburgh Review. A few miscellaneous notes are scattered here and there, but sparingly: nor could anything, except the distinctly expressed wish of the Author, have induced the Editor to think that any additions of his could enhance the value of a work on such a subject, and from such a hand.

For the distribution of the work in Chapters and Sections, the Editor alone is responsible. The division into Books is all that belongs to the Author.

The original manuscripts contained, under the title of Causes of the Exclusion of Evidence, a treatise on the principal defects of the English system of Technical Procedure. This extensive subject may appear not to be so intimately connected with the more limited design of a work which professes to treat of Judicial Evidence only, as to entitle a dissertation upon it to a place in these pages. On examination, however, the parenthetical treatise was thought to be not only so instructive, but so full of point and vivacity, that its publication could not but be acceptable to the readers of the present work: and the additional bulk, in a work which already extended beyond four volumes, was not deemed a preponderant objection, especially as the dissertation, from the liveliness and poignancy with which it exposes established absurdities, gives in some degree a relief to the comparative abstruseness of some other parts of the work. It stands as the eighth in order of the ten books into which the work is divided.

A few of the vices in the detail of English law, which are complained of both in this book and in other parts of the work, have been either wholly or partially remedied by Mr. Peel’s recent law reforms; and some others may be expected to be removed, if the recommendations of the late Chancery Commission be carried into execution. The changes, however, which will thus be effected in a system of procedure founded altogether upon wrong principles, will not be sufficient to render that system materially better: in some cases, perhaps, they will even tend to render it worse; since the malâ fide suitor has always several modes of distressing his adversary by needless delay or expense, and these petty reforms take away at most one or two, but leave it open to him to have recourse to others, which, though perhaps more troublesome to himself, may be even more burdensome to his bonâ fide adversary than the former. Thus, for instance: in one of the earlier chapters of Book VIII. the reader will find an exposure of one of those contrivances for making delay which were formerly within the power of the dishonest suitor; I mean that of groundless writs of error. Mr. Peel has partially (and but partially) taken away this resource, and the consequence, as we are informed, has been, not that improper delay has not been obtained, but that it has been obtained by way of demurrer, or by joining issue and proceeding to trial; either of which expedients (though perhaps somewhat less efficacious to the party seeking delay) are equally, if not more, oppressive in the shape of expense to the party against whom they are employed, than the proceedings in error.

The truth is, that, bad as the English system of jurisprudence is, its parts harmonize tolerably well together; and if one part, however bad, be taken away, while another part is left standing, the arrangement which is substituted for it may, for the time, do more harm by its imperfect adaptation to the remainder of the old system, than the removal of the abuse can do good. The objection so often urged by lawyers as an argument against reforms, “That in so complicated and intricate a system of jurisprudence as ours, no one can foretell what the consequences of the slightest innovation may be,” is perfectly correct; although the inference to be drawn from it is, not (as they would have it to be understood) that the system ought not to be reformed, but that it ought to be reformed thoroughly, and on a comprehensive plan; not piecemeal, but at once. There are numerous cases in which a gradual change is preferable to a sudden one; because its immediate consequences can be more distinctly foreseen. But in this case, the consequences even of a sudden change can be much more easily foreseen than those of a gradual one. Whatever difficulties men might at first experience (though the difficulties which they would experience have been infinitely exaggerated) in adapting their conduct to a system of procedure entirely founded on rational, and therefore on new, principles, none are more ready than lawyers themselves to admit that still greater difficulty would be felt in adapting it to a system partly rational and partly technical.

For such a thorough reform, or rather reconstruction of our laws, the public mind is not yet entirely prepared. But it is rapidly advancing to such a state of preparation. It is now no longer considered as a mark of disaffection towards the state, and hostility to social order and to law in general, to express an opinion that the existing law is defective, and requires a radical reform. Thus much Mr. Peel’s attempts have already done for the best interests of his country; and they will in time do much more. A new spirit is rising in the profession itself. Of this the recent work of Mr. Humphreys, obtaining, as it has done, so great circulation and celebrity, is one of the most gratifying indications. The reform which he contemplates in one of the most difficult, as well as important branches of the law, is no timid and trifling attempt to compromise with the evil, but goes to the root at once.* And the rapidity with which this spirit is spreading among the young and rising lawyers, notwithstanding the degree in which their pecuniary interest must be affected by the removal of the abuses, is one of the most cheering signs of the times, and goes far to show, that the tenacity with which the profession has usually clung to the worst parts of existing systems, was owing, not wholly to those sinister interests which Mr. Bentham has so instructively expounded, but in part at least, to the extreme difficulty which a mind conversant only with one set of securities feels in conceiving that society can possibly be held together by any other.

It has appeared to the Editor superfluous to add one word in recommendation of the work. The vast importance of the subject, which is obvious to all men, and the consideration that it has now for the first time been treated philosophically, and by such a master, contain in themselves so many incitements of curiosity to every liberal mind, to every mind which regards knowledge on important subjects as an object of desire, that volumes might be written without addding to their force.

[At an interval of more than ten years from the first publication of this work, the original Editor feels that an apology is due from him for the air of confident dogmatism perceptible in some of his notes and additions, and for which he can only urge the palliation of their having been written in very early youth—a time of life at which such faults are more venial than at any other, because they generally arise, not so much from the writer’s own self-conceit, as from confidence in the authority of his teachers. It is due, however, to himself to state, that the tone of some of the passages in question would have been felt by him, even then, to be unbecoming, as proceeding from himself individually: he wrote them in the character of an anonymous Editor of Mr. Bentham’s work, who, in the trifling contributions which the author desired at his hands, considered (so far as mere manner was concerned) rather what would be accordant with the spirit of the work itself, and in Mr. Bentham admissible, than what would be decorous from a person of his years and his limited knowledge and experience. His name was subsequently affixed, contrary to his own strongly expressed wish, at the positive desire of the venerable author, who certainly had a right to require it.]

December 1837.

*∗* The notes of the Editor of the original Edition are distinguished from other annotations by the word “Editor” being printed at full length.

[* ]The Editor has not thought it necessary to consult, on the state of the existing law, any other authorities than the compilations of Phillips, Starkie, and others. These works were sufficiently authoritative for his purpose; and if the state of the law be such, that even those experienced lawyers can have misunderstood it, this simple fact proves more against the law than any remarks which the Editor can have grounded on the misconception.

[* ]It may not be impertinent here to remark, that the suggestions of Mr. Humphreys, admirable as they are, have received most valuable improvements from Mr. Bentham’s pen.—See an article in the Westminster Review, No. XII. (reprinted in this collection.)