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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 XII.

GROUND OF PERSUASION IN THE CASE OF THE JUDGE—CAN DECISION ON HIS OWN KNOWLEDGE, WITHOUT EVIDENCE FROM EXTERNAL SOURCES, BE WELL GROUNDED?

A decision pronounced by a judge on a question of fact, what efficient cause can it have had, so it be conformable to justice, other than evidence? None whatever, is the answer that naturally presents itself.

To this rule, however, four cases may on further reflection be apt to present themselves in the character of exceptions: four cases, of the first of which it will be seen, that its title to that character will, on examination, be affirmed; while in the three others, it will be disallowed.

Case 1.—The only perceptions on which the decision concerning the fact is grounded, are perceptions obtained by the judge himself, without any report made to him, by any other person, in the character of a percipient witness. In this case, the functions and characters of percipient witness and judge are united in the same person: deposing witness there is none, there not being either need or room for the appearance of any person in that character.†

Case 2.—No person appears on either side in the character of a deposing witness: but the facts on which the decision is grounded are, for the purpose of the decision, established by the admission, express or implied, of the parties on both sides.‡

Case 3.—The facts in question are deemed too notorious to stand in need of being established by special evidence.

Case 4.—Facts on one side having been deposed to, and in such manner that, supposing the deposition credited, they would have been established by evidence,—a decision in disaffirmance of those facts is formed, on the mere ground of improbability.

Of these four cases, the first mentioned alone, viz. decision on view, will be found, as already observed, a real exception to the rule. It is a decision without evidence.

Without evidence? The judge, in this case, has he not the evidence of his own senses? Doubtless: but, in this case, the expression is but figurative: nor does the word evidence designate the same idea in this, as in other cases: his senses are detached from his person, erected into so many independent persons, and in that character introduced as witnesses. To keep clear of this confusion,—instead of decision without evidence, say rather decision without testimony: not that the confusion will, even in this case, be entirely avoided.

Without evidence? Be it so then. But the ground of the decision,—is it not still firmer than if it were composed of evidence? Yes, certainly—if the only mind, the satisfaction of which were worth providing for, were that of the judge by whom in the first instance the decision were to be pronounced. Supposing his opportunities of observation sufficient, and those opportunities improved—a report, however trustworthy, made of the fact by any other person concerning the supposed perceptions of that other person, will be but a very inadequate succedaneum to any perceptions obtained by himself. Whatever be the superiority which immediate possesses over hearsay testimony, the same will internal perception on the part of the judge possess, in comparison with persuasion grounded on the testimony of another, or any number of others.

If, then, the mind of the judge were the only mind, the satisfaction of which were worth regarding, perception obtained by the judge would be a ground of decision, not merely equal, but far superior, to evidence. But unless absolute despotism, seated in the breast of the judge himself, be the only eligible form of government, the mind of the judge is not the only mind the satisfaction of which is worthy of regard. So far from it, that it is only in the character of an instrument of satisfaction to some other mind or minds, that satisfaction afforded to the mind of the judge himself is of any use. In the case of unbridled despotism seated in some one superior breast, as in Morocco, it is of the mind of the despot, and of him alone: in the case of any government simply monarchical, or in a greater or less degree popular, in which the affections of the public are, or are professed to be, an object of regard, it is the mind of the public, the satisfaction of which must (if propriety or consistency be regarded) be said to be the ultimate object in view.

Of this theoretical disquisition, what then is the practical use? To ascertain whether under any, and if under any, under what conditions, power should in any case be allowed to the judge for deciding on the ground of his own perceptions, without the support of personal evidence ab extrà.

The answer seems to present little difficulty. In the first instance, and for saving delay, vexation, and expense, as well as to prevent mis-decision, or non-decision for want of demand, let the judge’s own perception be a sufficient ground for decision—for a decision to be pronounced by himself.

In case of appeal, which, in a case of this sort, ought ever to be allowed,—to guard against ultimate misdecision, let it be incumbent on the judge, if so required, to officiate in the character of a deposing witness, and in that character state the facts, subject to counter-interrogation,* exactly in the same manner as any other witness.

Even in the first instance, if the judicatory be, as it ought if possible to be, so constructed as to admit and contain an audience,—in pronouncing his decision, the judge might and ought to deliver, in his character of percipient witness, in the face of that audience, the facts which that decision takes for its ground.

Many, as will be seen, are the cases in which, to help to form the ground for decision, cognizance of this or that matter of fact is, under every system of law, obtained, in the way of immediate perception, by men occupied in the exercise of judicial functions: but, in these cases, perception constituting but a part of the ground of decision, and forming no more than a sort of supplement to testimony, they come not under the head of decision without evidence.

We come now to the cases in which the absence of evidence is but apparent, or regards no more than a part of the aggregate mass of legally operative facts:—

1. First comes the case of admissions, as above explained—express, or implied.

Admissions are but evidence, are but testimony, under another name.

When the admission is express, being the declaration of a party, and the effect of it operating, so far as it goes, in disfavour of him whose declaration it is, it comes under the head of self-disserving evidence.

Evidence of this description is, it will be seen, not only evidence, but the most trustworthy of all evidence: understand always, so far as the application made of it—i. e. the decision grounded on it—is confined to the interest of him whose declaration it is, and such other interests (viz. the interests of his representatives) as, being placed at his disposal, are considered as included under his.

When the admission is, as above explained, not express but only implied, the evidence is not direct but circumstantial: evidentiary fact, the negative act, the species of default above exemplified; principal fact, or fact evidenced, admission of the fact by which the interest which the admitting party has in the cause, is disserved.

2. Next comes the case where the fact is of the number of those which, being considered as placed by notoriety out of the reach of dispute, have therefore no need of being established by special evidence,—by evidence adduced for the single purpose of the suit actually in hand.

If to the purpose in question (viz. the purpose of serving, or helping to serve, as a ground for judicial decision) the fact be really notorious, it is notorious to the judge: a persuasion of the existence of it—a persuasion strong enough to give support to decision—is already formed in the bosom of the judge: this being assumed, all special evidence—all evidence the object of which is to endeavour to form such a persuasion, is, by the supposition, so far as his persuasion alone is deemed sufficient, superfluous and useless.

But, unfortunately, between facts that to the purpose in question are sufficiently notorious, and those that are not so, no distinct line is to be found: and where, in regard to this or that fact, a general persuasion of its existence is sufficiently prevalent, and to a sufficient extent, yet, in regard to this or that material circumstance, the persuasion is not perhaps sufficiently extensive and distinct. A fact regarded as notorious by one man, may be matter of dispute to another: a fact regarded as notorious by the plaintiff, may be matter of dispute to the defendant, and even to the judge.

From this indeterminateness, the practical inference seems to be as follows:—To save delay, vexation, and expense, it ought always to be in the power of the judge, at the instance of either party, to pronounce, and, in the formation of the ground of decision, assume, any alleged matter of fact as notorious. On the other hand, to guard against misdecision, it ought at the same time to be allowed to the party,—viz. to the party to whose prejudice the fact, if assumed, would operate—to deny the notoriety of the fact, and in so doing, call for special proof to be made of it: provided always, that for a false assertion to this effect, as for a false declaration of his persuasion to any other effect, he should stand exposed to suffer—whether by burthen of punishment, or by burthen of satisfaction, or both—as for wilful, i. e. self-conscious, falsehood, or falsehood through temerity, as the case may be.

When a fact is really to such a degree notorious, as that a man will not, without the imputation of falsehood, be heard to deny his persuasion of its existence, or to speak of himself as doubting of it,—in such case, if, in addition to a simple call for proof of it, an express declaration of such disbelief or doubt be made requisite to the existence of the obligation of complying with such call, shame,—fear of disrepute, will in general be sufficient to prevent any such call from being made, in a case in which the declaration, if made, would be otherwise than sincere: but if no such declaration be required—if the obligation follow upon the call—such call ought to be expected as a matter of course, in every case in which, by a chance of misdecision in favour of him who makes the call, or by delay, vexation, or expense, created by it to the prejudice of the other side, a sinister advantage may in any shape be reaped from it.

Under the existing systems of technical procedure, spun out everywhere under the impulse of an interest directly opposite to every end of justice,—the object, so far as concerns evidence, has everywhere been, not to lighten, but to aggravate, the load of unnecessary evidence: accordingly, proof made by one party, of facts of which on the other side there is no doubt,—proofs, in a word, substituted to admissions, are among the resources drawn upon for the advantage of the actual and mischievous ends of judicature: and as to this, so to other purposes, to prevent those explanations, by which injustice in all its shapes would be prevented, is among the objects which have been but too effectually accomplished.

It will seldom if ever happen that, for the substantiating either the plaintiff’s demand, or the defendant’s defence, no other facts than such as are already notorious will require to be believed: it is seldom, therefore, if ever, that evidence, special evidence (admissions as above included,) will altogether be to be dispensed with.

3. Lastly comes the case in which, in disaffirmance of facts affirmed by evidence on one side, a decision is pronounced on the ground of the improbability of these same facts.

Though not pronounced altogether without evidence, a decision thus grounded might seem to be pronounced without evidence adduced on the side in favour of which it is pronounced.

But, upon examination, it will be found that even in this case the decision is not without support from evidence. The evidence belongs indeed to that class which has received the name of circumstantial evidence—a modification of circumstantial evidence, composed of all those facts, all those sufficiently notorious facts, the existence of which is regarded as incompatible with the existence of the facts to which it is thus opposed; or, at any rate, as affording inferences of their non-existence—inferences strong enough to be regarded as conclusive, and, in that character, to govern and determine the persuasion of the judge.*

BOOK II.

—ON THE SECURITIES FOR THE TRUSTWORTHINESS OF TESTIMONY.

[† ]Under English law, this state of things is exemplified in the case in which the judge has been authorized to convict on “view:” to pronounce a man guilty of having committed an offence of this or that description, on the ground that the act of transgression was committed under the observation of the judge himself.

[‡ ]Under English law, on admission express on both sides, as when a case is stated by them in conjunction, for the opinion of the court: on admission presumed, on howsoever slight a foundation, by the judge, from the deportment of the defendant, in the case when he omits to perform this or that operation, the performance of which is exacted of him on pain of his being considered as having admitted the facts necessary to establish the demand on the plaintiff’s side: as in the case of judgment for default, Bill taken pro confesso, &c.

[* ]See Book II. Securities, Chap. IX. Interrogation.

[* ]The subject of improbability will be treated at considerable length in the Book on Circumstantial Evidence, (Book V.)