Front Page Titles (by Subject) CHAPTER IV.: OF THE SEVERAL SPECIES OR MODIFICATIONS OF EVIDENCE. - The Works of Jeremy Bentham, vol. 6
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CHAPTER IV.: OF THE SEVERAL SPECIES OR MODIFICATIONS OF EVIDENCE. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 6 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 6.
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OF THE SEVERAL SPECIES OR MODIFICATIONS OF EVIDENCE.
Of evidence, as of any other sort of thing, the number of possible species has no other limits than what are set by the number of points of difference observable by the human mind, in the several individual objects, for the conjunct designation of which, the generic term in question is employed.
Of the species or modifications of evidence actually distinguished in the course of this inquiry, and, for the purpose of it, designated, each of them, by its appropriate name, it may be of use to give a simultaneous intimation at this early stage.
In the present work, our concern is chiefly with judicial evidence. With regard to evidence in general, as contradistinguished from judicial evidence in particular, only one distinction shall be brought to view in this place. Such others as may hereafter become needful, will be noticed as the occasion shall arise.
The evidence by which, in any mind, persuasion is capable of being produced, is derived from one or other or both of two sources: from the operations of the perceptive or intellectual faculties of the individual himself, and from the supposed operations of the like faculties on the part of other individuals at large.
For distinction’s sake, to evidence of the first description, the term evidence ab intrà may be applied: to evidence of the other description, evidence ab extrà.
The modifications of which evidence ab intrà is susceptible, are—perception, attention, judgment, memory: imagination, a faculty little less busy than any of the others, and but too frequently operating in the character of a cause of persuasion, being excluded, as not appearing capable of being with strict propriety ranked among the modifications of evidence.
Evidence ab extrà has place, in so far as the persuasion has its source or efficient cause in the agency of some person or persons other than he whose persuasion is in question.
The sort of agency from which such persuasion is derived, is either discourse or deportment.*
So much for evidence in general. We have now to notice the several species into which we shall have occasion in the sequel to consider judicial evidence as divided.
Of evidence, as of every other sort of thing, the aggregate mass, considered as a whole, may, in idea, at one division, be divided into two or any greater number of parts, in any number of different directions, by divisions taken from so many sources of division: just as a field may be divided into two parts any number of times, each time by a line drawn from any point in any one of its boundaries to a different point in any other of its boundaries. So many different points to or from which the division is made, so many different sources of the several divisions thus made.
In the determination of the species of judicial evidence of which there will be occasion to make mention, in the course and for the purpose of the present work, the following are the sources of the principal divisions, of the first order, that have been made:—
1. Source of division,—nature of the source of the evidence. The species which are the result of the division made in this direction, and from this source, are—personal evidence, and real evidence. Personal evidence, that which is afforded by some human being—by a being belonging to the class of persons: real evidence, that which is afforded by a being belonging, not to the class of persons, but to the class of things.
2. Source of division, in the case of personal evidence,—state of the will, in respect of action or inaction, on the occasion on which it issues from that its source. Species resulting from the mode of division deduced from this source,—voluntary personal evidence, and involuntary personal evidence.
Voluntary personal evidence may be termed, all such evidence as is furnished by any person by means of language or discourse; or by signs of any other kind, designed by him to perform the function, and produce the effect, of discourse. Testimonial is the term by which evidence of this description will henceforward be designated.
To the head of involuntary personal evidence may be referred all such personal evidence as, being the result, sign, and expression of some emotion, is exhibited not only not in consequence of any act of the will directed to that end, but frequently in spite of the will and every exertion that can be made of it. To this head belong, for example, all involuntary modifications of which the deportment, and all involuntary changes of which the countenance, is susceptible.
3. Being in both cases personal and voluntary, and thus testimonial, the lot of evidence in question may either have been brought into existence on the occasion of the cause in which it is exhibited, or otherwise than on the occasion of the cause. Source of division, in this case,—relation of the evidence in question, at the time of its coming into existence, to the cause, on the occasion and for the purpose of which it is produced. Species of evidence deduced from this division,—depositional testimonial evidence, and documentary evidence.
4. The signs by which, at its coming into existence, the article of evidence in question, being depositional testimonial evidence, stands expressed,—may be either of the evanescent kind (such as sounds, and those visible signs which through necessity are sometimes employed instead of these audible ones,) or permanent, such as written or printed words or figures. Source of division,—nature of the signs employed for the delivery (viz. the original delivery) of the testimony. Species of evidence deduced from this division,—oral or orally-delivered depositional testimony, and scriptitious or scriptitiously-delivered depositional testimony.
5. In the case of testimonial evidence, the subject of the testimony is either the very fact, the existence or non-existence of which is the principal matter of fact in question; or some fact which, though distinct from it, is considered as being evidentiary of it. Source of the division in this case,—identity or diversity of the matter of fact asserted by the deponent in the instances in question, with the principal fact in question in the cause. Species which are the result of the division made in this direction and from this source,—direct evidence, and circumstantial evidence.
All evidence which comes under the description of real evidence, is circumstantial evidence.
6. Of the lot of testimonial evidence in question, the trustworthiness or legitimately probative force will depend upon the number and efficiency of the several securities for correctness and completeness that have been or can be brought to bear upon it. If, in the instance in question, the list of these securities be complete, the article of evidence may be said to be in an ordinary degree trustworthy, and may be termed ordinary evidence: if any one or more of these securities be wanting, it will be in an inferior degree trustworthy; and, however different from one another in all other respects, the several species of evidence that agree with one another in this particular, may be comprehended, any or all of them, under the appellation of make-shift evidence.
7. Whatever written evidence is adduced on the occasion and for the purpose of the cause in question, was, at the time of its being brought into existence, created either with the design of its being employed on the occasion and for the purpose of a cause or suit, or without any such design. In the last case, it may be termed casually-written evidence. To this head belong private letters and memorandums. If created with the design of being employed in a cause or suit; it either was intended to be employed on the occasion and for the purpose of some determinate and individual cause or suit, or else to be eventually employed on the occasion and for the purpose of some suit or cause of this or that particular species, but not individually determined. Source of the division in this case,—determinateness or indeterminateness of the suit or cause, for the purpose of which, the article of evidence in question, being of the written kind, was brought into existence. Species which are the result of the division made in this direction and from this source,—unpreappointed written evidence, and preappointed evidence.
Thus, the affidavit of a witness, delivered in the usual way, on the occasion of a cause of any kind in which that sort of evidence is admitted, is unpreappointed evidence; since it is created with a view to be employed on the occasion and for the purpose of this particular cause. But a deed of conveyance of an estate is preappointed evidence; for it is created for the purpose of being eventually employed in some suit or suits, should any such happen to arise, but it is not created with a view to any determinate suit; since, at the time when it is created, it is as yet uncertain whether any suit of the particular kind in question will ever arise or not.
8. The evidence being testimonial; source of the division,—identity or diversity as between the narrating or deposing witness and the alleged and supposed percipient witness. Species of evidence deduced from this source,—original evidence, and unoriginal evidence.
The evidence may be termed original, when the deposing witness—the witness by whom, for the information of the judge, a statement is made concerning the matter of fact in question,—was the very person to whose senses the matter of fact in question did, at the time and place in question, in so far as such his deposition is true, present itself.
The evidence may be termed unoriginal, in so far as the narrating witness in question speaks of some other person, and not of himself, as the person to whose perceptive faculty the supposed matter of fact in question did, at the time and place in question, present itself.
[* ]Discourse comes mostly under that sort of evidence which there will be occasion to distinguish by the appellation of direct: deportment, serving or contributing to produce persuasion, but not operating in the way of discourse, belongs exclusively to the class of circumstantial evidence. See Book V. Circumstantial.