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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 IX.

GENERAL VIEW OF THE PSYCHOLOGICAL CAUSES OF CORRECTNESS AND COMPLETENESS, WITH THEIR CONTRARIES, INCORRECTNESS AND INCOMPLETENESS, IN TESTIMONY.

In a tolerably sufficient degree for the various purposes of life,—private and public, domestic, commercial, scientific, political, judicial,—is human testimony in general found conformable to the truth of things. At the same time, in instances but too numerous, it fails of being so. The conformity has its causes: the disconformity has its causes likewise. In a work on evidence, all these causes have a claim to notice. Where mischief, as it is but too apt to be, is the result of such disconformity,—deception, false judgment, is the name either of the mischief itself, or of the proximate cause of it. And for the prevention of this mischief there is no other course so sure as that which includes the endeavour to avert it, by removing or counteracting the operation of its causes.

The inquiry into the causes of trustworthiness and untrustworthiness in evidence, will probably, without much difficulty, be acknowledged to be an interesting pursuit: interesting not merely as a field of speculation, but with a view to practice.

But when the mode of applying to practice whatever information may be obtainable, comes upon the carpet, opinions will not, at first view at least, be alike uniform.

The practical uses, and the only uses, which present themselves to my view as proper to be made of it, are as follow:—

1. To put the legislator and the judge as fully as possible upon their guard against the causes of untrustworthiness.

2. To show how far and in what instances they are without, and how far within, the reach of remedy.

3. In so far as they are within the reach of remedy, to point out, under the name of the causes of trustworthiness, what are the proper remedies, and in what way they may be employed to the best possible advantage: in such manner as to leave to the causes of untrustworthiness as little influence as possible.

To the above operations, which are but endeavours, the practice of men of law, of judges and legislators, has not been content to confine itself: it has taken a line of conduct presenting the idea of greater efficacy; viz. the excluding from the function of a witness every individual in whose character or situation any mark or symptom of untrustworthiness has presented itself.

The light in which the subject has presented itself to my view, has compelled me to conclude that the idea of exclusion is altogether without foundation in reason and utility: that, though it be employed by lawyers in all nations, no nations, in this respect, are consistent with one another, nor any one consistent with itself: that the practice is not reasonable in any single instance: that it is mischievous in the exact degree in which it is extensive: that, if in any nation it had been consistently pursued, which however is impossible, it would long ago have given a complete impunity to every imaginable crime, and cut up society by the roots: that, in the minds of its authors, it has its seat,—as far as regards their intellects,—not in any comprehensive, but in a wonderfully narrow conception of the springs of action, and the mechanism of the mind:—as far as regards their will,—not in attention and anxiety, as might be supposed, but in indolence, negligence, and indifference.

Nevertheless, as a system of law in which this supposed remedy has not been adopted, and to a greater or less extent employed, is perhaps nowhere to be found—as the body of prejudice to be put down is thus colossal—it cannot but be perceived that he who undertakes to overthrow it, cannot make his ground too sure.

For this purpose, and because the practice of exclusion has no better nor other cause than the observation that, in each instance, the testimony of the witness is exposed to the influence of some motive, acting upon him in a sinister direction, and soliciting him to deviate from the path of truth,—it will be necessary to take a complete survey of the whole catalogue of motives, to the action of which the will of man is exposed. It will thence be seen, that for the same reason for which, in the character of a witness, any one class of persons ought to be excluded, so ought every other: and that, in the character of a preservative against mendacity, a consistent system of exclusion would be no wiser a remedy, than an universal deluge, and without an ark, would be against any other vice.

By the same survey by which the unreasonableness of exclusion is thus indicated, the reasonableness of suspicion will all along be brought to view: and if in this way it be seen to fulfil the double purpose of affording wholesome instruction, and guarding against pernicious error, the labour of travelling through it need the less be grudged.

The application of the lights thus collected, to the subject of exclusion, will be the business of a separate book. In the present book, lest the theoretical survey should in any of its points be suspected of being without use in practice, it seemed necessary to show that the practical question, as between exclusion and non-exclusion, is the chief mark which it had in view; and that the solution of that question was the chief of the objects to which it owed its birth.

To begin, then. The conformity or disconformity of the testimony of a witness to the truth of things, to the real state of the facts which constitute the subject-matter of his report, depends upon the state of his mental faculties; viz. partly upon the state of the intellectual, partly upon the state of the moral or volitional, department of his mind.

Incorrectness and incompleteness in testimony have received different names, according as they are supposed to arise from causes the seat of which is in the intellect, or from causes the seat of which is in the will.

By the supposition, the picture is in some respect or other disconformable to the original. Is the witness completely unconscious of the disconformity? the cause of it is to be found in his intellectual faculties merely: his will has no share in the production of it: the falsehood was not on his part a wilful one. Is he conscious of the disconformity? the cause of it is to be found in the state of his volitional faculty.

But for an act of his will, that picture which his understanding had represented to him as false, would not have been exhibited by him as true. The falsehood is therefore, in this respect properly, as in ordinary discourse it is familiarily, spoken of as a wilful one.

In this latter case, and this alone, the falsehood in the language of Roman law is said to be accompanied with dolus; i. e. deceit, or at any rate the intention to produce deception—to deceive: with dolus; as also with mala fides; an inexpressive term, the import of which has been placed out of doubt by use, but of which the connexion with its import, and with its synonyme, as above, would not be very easy to make out.*

Dolus remains peculiar to the Romanists: mala fides, not to speak of its negative bona fides, has been borrowed from them, and been adopted by English lawyers. Of both of them the use has been extended, from crimes of falsehood, to all other crimes; from delinquency by false testimony, to delinquency in every other mode.

The intellectal faculties concerned in testimony may be comprised under four heads: perception, judgment, memory, expression; under the latter being included, the use of the corporeal faculties in respect of the sensible signs, audible or visible, by means of which the expression is performed.

When, with reference to the matter of fact which is or ought to be the subject of report, these four faculties are all of them in a sound and perfect state, free from infirmity,—correctness and completeness on the part of the testimony, so far as depends upon the state of the intellectual compartment of the deponent’s mind, are the result: when in any one of them infirmity or deficiency has place, incorrectness or incompleteness on the part of the testimony is liable to be the consequence: nor, so far as depends upon the state of the intellectual part of the witness’s frame, can these defects in his testimony be referable, either of them, to any other cause.

To present a more particular view of the ways in which an infirmity or weakness of which these several faculties are respectively the seats, produces, or contributes to produce, in the testimony of a witness, one or other of these defects, will be the business of the next chapter.

The moral faculties concerned may be comprised under two heads: viz. veracity and attention: adding, or including, their respective opposites or negations, viz. mendacity, and temerity, or negligence: temerity being principally displayed by action, i. e. by utterance; negligence, by forbearance, i. e. by silence.

Veracity has place, in so far as it is the will, the wish, the desire, the endeavour, of the witness, that his testimony, and the conclusions drawn from it, be conformable to the real state of the case.

Mendacity has place, in so far as it is the will, the wish, the desire, the endeavour, of the witness, that his testimony, or the conclusions drawn from it, be in any respect unconformable to the real state of the case.

As the will can scarcely exert itself, at least with any considerable degree of vigour, but the intellectual faculty must, in a more or less considerable degree, be impressed with a consciousness of the exertion so made by the moral faculty; hence falsehood, when in this way wilful, is generally, and in a manner of course, in the mind of the witness, accompanied with self-consciousness—with a consciousness of its own existence. The two expressions, wilful falsehood and self-conscious falsehood, become thus interconvertible and nearly synonymous.

Verity has place, in so far as—whatsoever be the state of the will, of the volitional or moral faculty of the witness, on the occasion in question,—the report made by him concerning them, in and by his testimony, is conformable to the real state of the case.

Falsehood, or rather falsity (the word being used without reference to veracity or mendacity,) has place in so far as—whatsoever on the part of the witness be the state of his will, in relation to the matters of fact in question—his testimony fails of being conformable to the real state of the case.*

Be the attention of the witness, ever so closely applied to the subject, or ever so anxiously occupied in giving a correct and complete expression to the facts, the image of which is presented by his memory,—falsity on the part of his testimony may in any degree happen to be the result; ex. gr. owing to some infirmity in one or other of the four branches above mentioned of the intellectual faculty.

But where, mendacity having no place, falsity has place notwithstanding, it has frequently for its cause a deficiency in respect of that due measure of attention, by which, had it been, as but for his default it might have been, present, the picture given of the fact by his testimony would have been rendered more nearly resembling to the original—to the real state of the case.

The witness has uttered what was untrue; but he was not aware of its being so. Was he in any such situation as called upon him, in regard to justice, before he undertook to give the picture in question, to take measures for assuring himself of the correctness of it,—such measures as, had he taken them, would have saved him from falling into the error, and caused him either to have declared his inability to give any picture of the transaction, or if he gave any picture, to give a true one? If he was, his testimony, though free from the blame of insincerity, is not considered as free from blame altogether. In respect of the judgment, the erroneous judgment, thus formed and expressed by him,—that judgment being, for want of that attention which he might have bestowed and ought to have bestowed upon it, an erroneous one,—blame, viz. the blame of temerity—rashness, is imputed to him, and to such his testimony.†

In case of falsehood, there is yet another state of the mind which requires notice. In English, the word bias is employed for the expression of it: it is the state which a man is in, when he is said to have a bias upon his mind. The causes of bias cannot be understood any further than as the causes of mendacity are understood. But to understand it, viz. by means of its relation to mendacity,—for the present, nothing further is necesary than to understand, that mendacity has constantly for its cause some one or more motives (motives acting upon the will in a sinister direction—in a direction tending, in matters of testimony, to produce mendacity,) and that bias is produced by the action of these same causes.

Bias, then, is a tendency to falsehood in testimony, produced by the same causes as those by which mendacity is produced—a tendency, which, even when reduced to act, is not accompanied with that self-criminative consciousness which is of the essence of mendacity, and which distinguishes it from unmendacious falsehood, accompanied or not accompanied by temerity. The mind of Titius is under a bias: his situation exposes him to the action of some motive by which he is urged to depart from the line of truth. He resists the impulse, or yields to it; he adheres to the line of truth, or deviates from it: but, if he deviates, he is not conscious of his doing so; it is not his will, his intention, so to deviate: the falsehood, if there be any in his testimony, is not a wilful one.

When the tendency produced by bias is reduced into act, by the supposition there is no mendacity in the case, though the effect is produced by the action of a cause of the same nature as those by which mendacity is apt to be produced. Is there, or is there not, temerity? The answer is not easy: nor happily very material. Men in general are not so indulgent as to be thus nice. If the testimony of Titius is seen to be exposed to any of the causes of mendacity, and falsehood in any respect is understood to have been the result, such falsehood will not ordinarily be understood to be exempt from blame. The best that can easily happen to it, is to be understood as accompanied by temerity: most men would be apt to refer it to mendacity, without staying to think of bias.

Bias, being thus nearly related to mendacity, will require little separate mention to be made of it: having the same causes, it has, when it has any effect, the same effects; and (with the exception of punishment, punishment applied in a direct way by appointment of law) presents a demand for the same remedies.

[* ]For mala fides, say, perhaps, insincerity: for bona fides, sincerity.

[* ]A state of things not frequently exemplified, but by no means incapable of being exemplified, is, when a witness, wishing and endeavouring to render his testimony in this or that respect disconformable to the truth of the case, and even believing himself to be so doing, renders it notwithstanding, and in the very same respects, conformable.

In this case, his will is in the same vicious state as in case of mendacity; and yet neither falsity, nor consequently mendacity, is the result.

In the system of ethics or moral philosophy taught in some of the English schools, a distinction is taken between logical and ethical falsehood. By logical falsehood is meant falsehood in general, whether referable to the case of mendacity, as above described, or not: by ethical falsehood is denoted mendacity, as above described.

But, for the case where, as above, falsehood being intended, truth is notwithstanding the result, the nomenclature of that system furnishes not any appellative; unless ethical falsehood, unaccompanied by logical, be taken for that appellative.

Of him who, meaning and thinking to utter a falsehood, speaks truth notwithstanding, the act may be considered as an attempt, though an abortive attempt, to commit mendacity: and in respect of consequences—mischievous consequences, the relation of the inchoate offence to the consummate offence is the same in the instance of this, as in the instance of any other offence, and with equal propriety is susceptible of having punishment attached to it.

[† ]In the language of the Romanists, culpa and temeritas. These terms, however, are scarcely so much in use with reference to falsehood, an instrument in the hands of delinquency in general, as with reference to this or that particular species of delinquency. English lawyers have scarce got to the length of this distinction: with reference to delinquency in general, not with any approach to uniformity: with reference to the offence of false testimony, not at all. In a prosecution for perjury, mendacity in judicial testimony delivered upon oath, they know of no medium between self-criminative consciousness and innocence.