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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.

MODES OF INCORRECTNESS IN TESTIMONY.

An analytic sketch of the different shapes in which falsehood is wont to show itself, will not be altogether without its use: its particular uses in practice will be pointed out presently.

The modifications of falsehood may be deduced, either from the consideration of the part taken by the will in relation to it, or from the consideration of the facts which are the subject-matter of the picture thus deviating from the line of truth. Those which result from the former topic will be brought to view in the next chapter. There remain those which respect the nature of the fact in question, or the form of the assertion of which it is the subject.

Cause, homicide. Titius is under examination. Question: What do you know about this business? Answer: 1. Reus struck Defunctus; 2. Reus did not strike Defunctus; 3. I know not whether Reus struck Defunctus or no. Any one of these answers, it is evident, is as susceptible of falsehood as another. In the two first cases, the falsehood consists in false assertion—affirmative in one case, negative in the other; in the third case, it consists in allegation of ignorance.

1. Falsehood, in the way of positive or affirmative assertion; 2. Falsehood, in the way of negative assertion; 3. Falsehood, by alleged ignorance.

Falsehood by allegation of ignorance, it is evident, is altogether as susceptible of mendacity, as falsehood in the way of assertion; and whenever mendacity is an object meet for punishment, it is as much so in this shape as in the other. Unfortunately, it is not so open to disproof as the other. Why? Because, in this case, the fact which is the subject of the false testimony has nothing physical in it—is purely of the psychological kind. Were it exempt from punishment, there would be no witnesses but those who are called willing ones. The condition of a delinquent, whatever were the crime, would be subject altogether to the good pleasure of the individuals whose testimony was requisite to ground a decision on that side: to afford him impunity, to grant him a virtual pardon and protection, nothing more would be needful on their part than to say, I know nothing, or I remember nothing, about the matter.

To protect a witness (his testimony being necessary to conviction) to protect him against cross-examination when uttering a falsehood of this sort, is to hold out impunity to the whole catalogue of crimes. On a memorable and never-to-be-forgotten occasion, English judges, all with one voice and hand, scrupled not to aim this mortal stab at penal justice.* Impunity to a crime of the deepest die—a plot for the assassination of the sovereign—has been among the fruits of it in practice.† Since that time, judges have slunk in silence from the precedent.‡ But the decision remaining unreversed, and, but for legislative authority, unreversable, the consequence of the departure is not the restoration of justice, but, on each future occasion, justice or impuinty at the option of the judge.

Question: About what thickness was the stick with which you saw Reus strike his wife Defuncta? Answer: About the thickness of a man’s little finger. In truth, it was about the thickness of a man’s wrist. Falsehood in this shape may be termed falsehood in quantity.

Question: With what food did the jailor Reus feed the prisoner Defunctus? Answer. With sea-biscuit, in an ordinarily eatable state. In truth, the biscuit was rotten and mouldy in great part. Falsehood in this shape may may be termed falsehood in quality.

Under what tree was the act committed? said Daniel to each of the Elders, separately. Under a mastic tree, said the one: under a holme tree, said the other. In truth, not being committed at all, it was not committed under any tree. Falsehood in this shape may be termed falsehood in circumstance.

The distinction between fact and circumstance, it should here be noted, is extremely apt to be obscure and indeterminate. It supposes the individualization of each fact—the boundary line which divides that from all other facts—to be clear and determinate; whereas, nothing is more apt to be indeterminate. It supposes the distinction between fact and circumstance to be clear and uniform; but nothing is more variable. The term circumstance is but relative: a circumstance is itself a fact, any one of a number of facts considered as standing round the principal fact.

The falsehood that respectively accompanied the above-mentioned assertions,—Reus struck Defunctus—Reus did not strike Defunctus—presents itself in a shape different from any of the above three: it went to the act, and did not confine itself to quantity, quality, or circumstance. It may be termed falsehood in toto.*

Falsehood in quantity and in quality, is that sort of falsehood which is most apt, and indeed almost exclusively apt, to be produced by bias. Whether produced by bias or by mendacity, it is in general peculiarly difficult to disprove: it is accordingly in this quarter. so far asconcerns physical facts, that mendacity finds its surest refuge.

It is, however, hable enough to be disproved where the fact in question is of a nature to afford real evidence, and that of the permanent kind: it, for example, the stick, or the unwholesome food, having been impounded and preserved, come to be produced in court. But if the thing, the condition of which was the subject of the falsehood, be not forth coming—whether from its nature (for example wind or running water,) or by accident—this means of detection fails. The size of the stick is not out of the reach of subsequent measurement: the force with which the blow was given, is; except in so far as it may be guessed at from the appearance of the wound or bruise.

The practical use of these distinctions is this:—In the case where the falsehood is only in quantity or quality, the aberration of the evidence from the truth may be accompanied, or not, with that consciousness which gives it the denomination of wilful in ordinary language: in the case where the evidence is false in toto, the falsehood cannot but have been accompanied with that culpable consciousness—it cannot have been otherwise than wilful, unless it have risen from that sort of disorder in the imagination, which may be set down to the account of insanity while it lasts.

Of evidence false in toto, the sort of evidence so unhappily frequent in penal causes, and so familiar accordingly in legal language, under the name of alibi evidence, may serve as an example. The defendant is accused or having killed a man with a hedge-stake, at a certain place and time: a witness is produced, who says, I am well acquainted with him; he was conversing with me at another place, considerably distant (naming it,) in a small room, exactly at that time. The evidence may be true or false; but what is certain is, that, if it be false, the falsehood cannot be otherwise than wilful, barring the possibility that one man may have been taken for another. A man cannot be at two distant places at the same time; and, with the exception just stated, a man cannot, in the compass of a small room, really conceive himself to have been seeing and holding converse with another man, who, in fact, was never there.

What was the size of the stake, the degree of force with which the blow was given?—did the deceased, on his part, aim a blow at the defendant, or merely endeavour to ward off the defendant’s blow?—all these are so many circumstances, in respect of which the mendacious conciousness may or may not be present, although the testimony were more or less unconformable to the exact truth of the case—in a word, were false.

Falsehood in toto, and falsehood in circumstance, will be found, accordingly, to differ, in a number of points of very essential importance in practice.

1. Falsehood in toto is, in a decidedly preeminent degree, exposed to detection and disproof: in the case of falsehood in circumstance, in quantity, or quality, the facility, and even possibility of detection, will depend upon the degree of aberration from the truth.

2. In the case of falsehood in toto, the aberration, as already observed, cannot but be accompanied with mendacious consciousness: falsehood in quantity, quality, or other circumstance, may be produced by bias, by the influence of motives on the affections, without being accompanied by any such consciousness.†

3. Falsehood in toto is accordingly that species of falsehood of which a man is in general convicted, when he is convicted of perjury. Perjury, in respect of quantity, quality, or other circumstance, may have been committed a hundred times, without the possibility of a single conviction upon sufficient grounds.

Question to Reus: What was your intention in striking Defunctus? Answer: To disable him, so as to put it out of his power to hurt me. In truth, it was to deprive him of life. Question: By what motive were you instigated to strike Defunctus? Answer: By self-preservation; the desire to save my life. In truth, it was enmity: his own life was in no danger. In both these cases, the subject-matter of the falsehood, it is manifest was a psychological fact: in the preceding cases, it was a physical fact.

Psychological facts, it is evident, present a more inviting held to mendacity than is commonly presented by physical facts. But this does not hinder the application of punishment, as for mendacity, to falsehood in the one shape, any more than in the other. If it did,—in this case, as in the preceding one, impunity would be secured to many a crime. Not but that, as already observed, psychological facts are much more satisfactorily proved by circumstantial than by direct evidence. In the way of direct evidence, a fact of this class cannot be proved by any person but the one person whose mental faculties are the seat of it.

The field of motives is an open and ample field for the exercise not of mendacity only, but of bias. The tendency of bias is to attribute the greatest share, or rather the whole agency, in the production of the act, to a particular motive; to the exclusion of, or in preference to, whatever others may have concurred in the production of it. Few indeed that are able, scarce any that are willing, to give, on every occasion, a correct account of the state of the psychological force by which their conduct has been produced.

Ask Reus for his own motives,—they are the most laudable, or, in default of laudable, the most justifiable, or at least excusable, of any that can be found. Ask a friend of Reus for the motives of Reus,—the answer is the same. Ask Actor for the motives of Reus,—the same gradation, the order only reversed. Ask Reus for the motive which gave birth to the prosecution on the part of Actor,—the motive of course is the most odious that can be found: desire of gain, if it be a case which opens a door to gain; if not, enmity, though not under that neutral and unimpassioned, but under the name of revenge or malice, or some other such dyslogistic* name. Ask a friend of Reus, or an enemy of Actor,—the answer is the same. Ask an enemy of Reus, or a friend of Actor,—his motive was public spirit, the purest public spirit.

Ask an English lawyer,—his answer will also be, public spirit: or it, under the name of revenge or malice, he concludes enmity to have had its share, he requires, in many cases, no other ground for dismissing the prosecution: such is the simplicity of English lawyers, so profound their ignorance of the causes and effects of human actions, and of the difference between the cases in which the nature of the motive is material and discoverable, and those in which it is irrelevant and inscrutable.

Put the same question to a man to whom the springs of action are known, and the mechanism of the human mind familiar,—he will scorn to pretend to know what is not capable of being known. He will answer,—desire of gain, enmity, public spirit;—these motives (not to speak of casual ones) any one exclusively, any or all conjunctively, and in any one of the whole assemblage of imaginable proportions—the proportions never the same for two days or two hours together, nor understood, or so much as inquired into, by the individual himself.

On this part of the ground of the evidence, a work replete with instruction would be a collection of cases of prosecutions for perjury; the cases ranged under heads expressive of the shape in which the falsehood presented itself, as above. The mischief is obvious and indisputable, if there were any shape in which it could give itself a promise of impunity complete and sure. At first, the prosecutions, it seems natural to suppose, confined themselves to some of the grosser shapes. As human intelligence advances,—in this as in other lines, the field of punishment will naturally approach nearer and nearer to a complete coincidence with the field of crime.

Hitherto I should expect to find falsehood in toto a much more frequent subject for a prosecution of this kind, than falsehood either in quantity or in quality.

When the word falsehood is mentioned, the modifications that will be by far the most apt to present themselves, are those ordinary ones which have been already mentioned; viz. those in which the vehicle used for the conveyance of it, is ordinary language, and in which falsehood, if tinctured with mendacity, and uttered under the sanction of an oath, is understood to come under the denomination of perjury.

But language, verbal discourse, though the most common and convenient vehicle for the conveyance of ideas, is not the only one. Accordingly, under the head of circumstantial evidence, it becomes necessary to add deportment, as a necessary supplement to language.*

To this head belong the following modifications of falsehood, some of which have been already mentioned:—

1. Graphical forgery.—Forgery in relation to written documents: the species of forgery most commonly understood under that name.

2. Monetary forgery.—Forgery in relation to the current coin.

3. Forgery in relation to evidentiary marks of ownership; ex. gr. landmarks: the owner’s name upon his linen, or other goods.

4. Forgery in relation to evidentiary marks of authorship: ex. gr. the marks of a manufacturer or vender, upon goods made or sold by him.

5. Forgery of real evidence at large: in particular, forgery in relation to the traces of delinquency, under its several modifications.

The Romanists, and after them the English lawyers, in some instances, have ranked under the common generical appellation of the crimen falsi, forgery (at least in some of the above instances) as well as perjury: falsehood in this quasi-colloquial shape, as well as in the shape of ordinary discourse. Of mendacity, except where, by the sanction of an oath, it has been made to receive the denomination of perjury, it has not been common to take notice, either under that or any other name.

[* ]Trial of Warren Hastings.

[† ]Trial of Crossfield.

[‡ ]Trial of Codling.

[* ]But as circumstance is a name that may be given to a fact of any sort falsehood in circumstance and falsehood in toto may in this respect coincide.

[† ]For the explanation of mendacity and bias see the next chapter. The meaning of the term, is in general sufficiently well understood to tender an anticipated explanation of them in this place unnecessary.

[* ]The word dyslogistic is employed by Mr. Bentham in the sense of vituperative; as opposed to eulogistic.

[* ]See Book V. Circumstantial.