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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 I.

ON EVIDENCE IN GENERAL.

Evidence is a word of relation: it is of the number of those which in their signification involve, each of them, a necessary reference to the import expressed by some other; which other must be brought to view at the same time with it, or the import cannot be understood.

By the term evidence, considered according to the most extended application that is ever given to it, may be, and seems in general to be, understood, any matter of fact, the effect, tendency, or design of which, when presented to the mind, is to produce a persuasion concerning the existence of some other matter of fact—a persuasion either affirmative or disaffirmative of its existence.*

Of the two facts thus connected with each other, the latter may, for the purpose of expressing the place it bears in its relation to the other, be distinguished by the appellation of the principal fact, or matter of fact: the other, by that of the evidentiary fact, or matter of fact.†

Taking the word in this sense, questions of evidence are continually presenting themselves to every human being, every day, and almost every waking hour, of his life.

Domestic management turns upon evidence. Whether the leg of mutton now on the spit be roasted enough, is a question of evidence; a question of which the cook is judge. The meat is done enough; the meat is not done enough: these opposite facts, the one positive, the other negative, are the principal facts—the facts sought: evidentiary facts, the present state of the fire, the time that has elapsed since the putting down of the meat, the state of the fire at different points during that length of time, the appearance of the meat, together with other points perhaps out of number, the development of which might occupy pages upon pages, but which the cook decides upon in the cook’s way, as if by instinct; deciding upon evidence, as Monsieur Jourdan talked prose, without having ever heard of any such word, perhaps, in the whole course of her life.

The impression, or something like an impression, I see in the grass—the marks of twisting, bending, breakage, I think I see in the leaves and branches of the shrubs—the smell that seems to present itself to my nostrils—do they afford sufficient evidence that the deer, that the enemy, I am in chase of, have passed this way? Not polished only, but even the most savage men—not human kind only, but even the brute creation, have their rules—I will not say, as Montesquieu would have said, their laws—of Evidence.‡

If all practice, much more must those comparatively narrow branches of it, which are comprehended under any such names as those of art and science, be grounded upon evidence.

Questions in natural philosophy, questions in natural history, questions in technology in all its branches, questions in medicine, are all questions of evidence. When we use the words observation, experience, and experiment, what we mean is, facts observed, or supposed to be observed, by ourselves or others, either as they arise spontaneously, or after the bodies in question have been put, for the purpose, into a certain situation.

Questions even in mathematics are questions of evidence. The facts, the evidentiary facts, are feigned; but the question concerning the inference to be drawn in each instance, from the feigned existence of the evidentiary facts, to the existence of the facts sought—the question whether, in the way of analogy, the supposed evidentiary facts afford a sufficient ground for being persuaded of the corresponding existence of the principal facts—is not the less a question of evidence. The matter of fact, which, presented to the mind in one point of view, is called by this one name, is it the same matter of fact which, when presented in another point of view, is called by this other name? Do two and two make four? and for example, the two apples on the right-hand side of the table, added to the two apples on the left-hand side of the same table, are they the same apples, and the same number of apples, that constitute all the apples now lying before me upon the table? In this question of identity—in this question of nomenclature disguised under scientific forms, we see a question of evidence.*

The first question in natural religion is no more than a question of evidence. From the several facts that have come under my senses relative to the several beings that have come under my senses, have I or have I not sufficient ground to be persuaded of the existence of a being distinct from all those beings—a being whose agency is the cause of the existence of all these, but whose separate existence has never at any time, by any perceptible impressions, presented itself, as that of other beings has done, to the cognizance of the senses?

Evidence is, in every case, a means to an end—a particular branch or article of knowledge, considered in respect of its subserviency towards a course of action in which a man is called upon to engage, in the pursuit of some particular object or end in view.

In the case of a branch of science—physical science—cultivated by a private individual, that object may be the producing some physical effect, whether of a customary or of a new complexion; or perhaps nothing more than the general advancement of the science—the making an addition to the mass of knowledge, applicable in common to the production of useful effects, customarily produced, or newly discovered, as it may happen.

On this ground, a great part of the business of science in general may be resolved into a research after evidence. The usefulness of it, with reference to the interests of mankind in general, will be in proportion to that of the department of science to which it belongs, and to the place it occupies in that department.

When the conduct to which the evidence in question is subservient—the conduct for the guidance of which the facts in question, and the knowledge obtainable in relation to them, are searched after—when the conduct thus at stake is the conduct of government as such—of men occupied, on the occasion in question, in the exercise of the powers of government,—the importance of the evidence, and of the conduct pursued in relation to it, take a proportionate rise.

In the map of science, the department of judicial evidence remains to this hour a perfect blank. Power has hitherto kept it in a state of wilderness: reason has never visited it.

In the few broken hints which, in the form of principles, may be picked up here and there in the books of practice, little more relevant and useful information is to be found, than would be obtainable by natural philosophy from the logicians of the schools.

The present work is the result of an attempt to fill up this blank, and to fill it up with some approach towards completeness. Not the minutest corner has been left unexplored: the dark spots have not been turned aside from, but looked out for.

Among the subjects here treated of are several concerning which not any the slightest hint is to be found in any of the books of practice.

Should this endeavour be found successful, it may be regarded as a circumstance not disadvantageous to the science, that the survey of the subject happened to be postponed to so mature a period in the history of the human understanding. So much the less rubbish to clear away: so much the less prejudice to contend with.

Should it happen to this work to have readers, by far the greater part of the number will be composed of those for whose use it was not intended—those to whom, were it not for the predilection produced by professional interest in favour of the best customer, Injustice, and her handmaid Falsehood,—justice and injustice, truth and falsehood, would be objects of indifference.

The class of men for whose use it is really designed, is a class composed as yet of those, among whom a personal or other private interest, hostile to that of the public, will prevent it, if not from finding readers, from finding other than unwilling and hostile readers—readers whose object in reading the work will be, to consider by what means, with the fairest prospect of success, the work and the workman may be endeavoured to be crushed.

The species of reader for whose use it was really designed, and whose thanks will not be wanting to the author’s ashes, is the legislator; the species of legislator who as yet remains to be formed—the legislator who neither is under the dominion of an interest hostile to that of the public, nor is in league with those who are.

[* ]In the word evidence, together with its conjugates, to evidence, evidencing, evidenced, and evidentiary, the English language possesses an instrument of discourse peculiar to itself: at least as compared with the Latin and French languages. In those languages the stock of words applicable to this purpose is confined to the Latin verb probare and its conjugates: a cluster of words with which the English language is provided, in addition to those which, as just observed, are peculiar to itself.

[† ]When the persuasion, if any, which is thus produced, is complete, and at its highest point, the principal fact may, in a more expressive way, be termed the fact proved: the evidentiary, the probative fact. But of this pair of appellatives, the range occupying but a point in the scale, the use will, comparatively speaking, not be frequent.

[‡ ]Esprit de Lois, L. I. ch. 1.

[* ]The difference, in respect of evidence, between questions of mathematics and questions of purely experimental science—of chemistry, for example—is merely this: that the evidence applicable to the former, is that description of evidence which is founded upon general reasoning; while the evidence applicable to the latter, is evidence of that description which is derived immediately from matters of fact, presenting themselves to our senses. To point out the peculiar properties of these two kinds of evidence, and to distinguish them from one another, belongs rather to a treatise on logic than to a work like the present; which, considering evidence almost exclusively in regard to its connexion with judicature, excludes all general speculations which have no immediate bearing upon that subject.—Editor.