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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 III.

INTERNAL AND EXTERNAL SECURITIES FOR THE TRUSTWORTHINESS OF TESTIMONY ENUMERATED.

Correctness and completeness may be called the primary qualities desirable in testimony. There are others, which may be called secondary qualities, and which are desirable for the sake of the primary.

To facilitate the conception and comprehension of the several secondary qualities that promise to operate, on the part of an aggregate mass of testimony, in the character of securities for its trustworthiness—that is to say, for its correctness and completeness,—it may be of use that the reader should, in the first place, be in possession of a naked list of them. From the inspection of that list, some general conception may be formed of them in the first instance: by a separate consideration of each article, that conception will be cleared and fixed as we advance.

To avoid the harsh effect which would result from the finding or making an abstract appellation correspondent to each quality, it may be necessary to discard the corresponding list of substantives, and confine ourselves to adjectives.

In relation, then, to an aggregate mass of evidence, and to each the several testimonies of which it may happen to be composed, there will be, or there may be (let us say) reason to desire that it may be as follows:—

1. Particular; as particular as possible: as special as possible, down to individuality: and besides that, circumstantial; of which distinction in its place.

2. Recollected; sufficiently recollected: the deponent, before the delivery of his testimony is concluded, having possessed and employed whatever portion of time may have been necessary to his bestowing upon it the primary qualities of correctness and completeness.

3. Unpremediated; that is, not sufficiently recollected for any such purpose as that of mendacious invention. This and the preceding quality are evidently opposite to each other, and to a certain degree incompatible. To determine how to reconcile them in so far as they may be reconcilable, and which to sacrifice in so far as they may be irreconcilable, will be amongst the nicest and most difficult problems that can be presented by the subject to the skill of the legislator.

4. Assisted by suggestions ab extrà—viz. in so far as such suggestions may be necessary to the assistance of recollection—true unfeigned recollection.

5. Unassisted by mendacity-serving suggestions ab extrà; unassisted by any such suggestions, true or false, as, in case of a disposition to mendacity, may enable the deponent to give to his mendacious statements an air of truth, so as to enable him to produce the deception he aims at producing in the mind of the judge. Another pair of opposite qualities—further demand for reconciliation as far as practicable, and, beyond that point, for sacrifices on one or both sides.

6. Interrogated: called forth by interrogation: by examination—questions—interrogatories,—and, for the sake of correctness and completeness, these questions put on all sides—put by every individual in whose person a mass of appropriate information, qualifying him for putting apt questions (i. e. questions calculated to contribute to the trustworthiness of the testimony, either in the article of correctness or in the article of completeness) is united with a degree of interest, and thence with a degree of zeal, sufficient to produce the exertion necessary to the purpose.

7. Distinct as to the expression. Of indistinct expression the consequence may be, either to cause the testimony, though correct, to produce the effect that would have been produced by testimony of a different purport, and failing in respect of correctness or completeness; or, by appearing to express something, when on a clear examination it would be found to express nothing, to preserve a witness whose discourse has been no more than equivalent to silence, from affording those indications which silence, when manifest, affords in the character of circumstantial evidence to the prejudice of the sincerity and probity of him by whom such reserve is persevered in.

8. Expressed by permanent signs; such, for example, as those of which written discourse is composed. If, destitute of the support of those permanent signs, it be limited to such evanescent signs as those of which oral discourse is composed, it will be liable to produce deception, as in case of indistinctness; unrecollected, when occasion comes for recollecting it, it will be tantamount to silence, except as to the affording of those instructive indications which silence is so frequently calculated to afford in the character of circumstantial evidence: misrecollected, it will, though originally correct, be converted into some modification or other of incorrect, erroneous, and perhaps deceptitious, evidence.

If substantives correspondent to these several adjectival expressions—abstract terms corresponding to those several concrete terms—were already in use, or capable of being put into use, they would be equivalent to those which follow; of which, some are already in use—others have been constructed for the purpose:—

1. Particularity.

2. Recollectedness; viz. to the purpose of correct and complete information.

3. Unpremeditatedness; viz. to the purpose of mendacious invention.

4. Suggestedness; viz. in so far as necessary to the purpose of correctness and completeness.

5. Unsuggestedness; viz. when not necessary to these purposes; more especially when conducive to the purpose of mendacious incorrectness, or its equivalent, intentional suppression, productive of intentional incompleteness.

6. Interrogatedness; if a conjugate of so harsh a form may, for the purpose of the moment, be endured.

7. Distinctness; viz. in point of expression.

8. Permanence; viz. in respect of the nature of the signs to which it is committed.

Such is the list of qualities that have presented themselves in the character of securities, internal securities, for trustworthiness, for correctness and completeness, in the aggregate mass of testimony. It remains to bring to view those arrangements which present themselves in the character of external securities, with reference to the same purpose: arrangements tending to secure, on the part of a mass of testimony, those desirable qualities which have been enumerated under the name of internal securities. These seem all of them referable to one or other of the following heads, viz.—

1. Punishment: (including, in case of special injury to individuals, the burthen of satisfaction in so far as it tends to operate in the character of punishment:) arrangements calculated to attach punishment, in the character of an eventual consequence, to incorrectness or incompleteness of testimony, when accompanied with blame, whether in the shape of mendacity or temerity. In case of manifest mendacity or intentional silence, on the part of defendant or plaintiff, when called upon to depose,—loss of cause, that is, loss of the advantages, or subjection to the inflictions, at stake upon the cause, may be considered as a sort of virtual punishment, growing naturally out of the offence.

2. Oath: arrangements attaching the sort of ceremony so called to the act of deposition, for the purpose of causing punishment from a supernatural source to attach upon the act, in case of mendacity; a species of misbehaviour which, on the occasion of the association so formed, receives the appellation of perjury.

3. Infamy: arrangements followed, or designed to be followed, by the effect of attaching to false testimony, through punishment or otherwise, the sort of ideal burthen characterized by a variety of denominations, such as infamy, ignominy, shame, disgrace, dishonour, disrepute: in other words, causing the punishment of the moral or popular sanction to attach upon the offence.

4. Interrogation: arrangements conferring on the different classes of persons already spoken of, those powers, the application of which to the deponent produces on his part an obligation more or less coercive and efficient in respect to the furnishing such ulterior information as the questions put in virtue of such powers, call for at his hands. To this head belongs, in the language peculiar to the English law, cross-examination, and its opposite, examination-in-chief.

5. Reception in the vivâ voce, or ready-written form, or both, according to circumstances: arrangements leaving it in the power of the judge, under such restrictions (if any) as may be needful, to receive the testimony in the one form, or in the other, or in the one after the other, according to the exigencies of each individual case: in the vivâ voce form, to save the superior expense, delay, and vexation, incident in general to the ready-written form, and to avoid giving facility to mendacious invention: in the ready-written form, when ulterior time for recollection and methodization seems requisite to the purpose of correctness and completeness, and when the expected advantage in these respects is such as promises to overbalance the delay, vexation, and expense.

6. Notation: or say recordation, registration, scription, note-taking, minute-taking, minuting down the evidence: the operation by which testimony, when delivered in the vivâ voce form, is made to receive the above-mentioned quality of permanence; and in that respect is, or may be, put upon a footing with ready-written testimony.

7. Publicity: arrangements tending to increase the number of the persons to whose cognizance the testimony, on the occasion of its issuing from the lips or the pen of the deponent, may convey itself. The virtue of this security applies itself partly to the station of the deponent, partly to the station of the judge: to that of the deponent, by leaving or throwing open the door, in case of incorrectness or incompleteness, to correction and completion by opposite or supplemental evidence: to both stations, by giving (by the same means) increased probability to eventual punishment, viz. legal punishment, and by introducing and strengthening the force of that punishment of the moral sanction, which for its application neither requires, nor is accompanied by, the forms and ceremonies of procedure.

To this head belong the arrangements indicated by the words open doors, courts of sufficient amplitude, liberty of publication, publication by authority, whether of the minuted vivâ voce testimony, or of the ready-written depositions.

To this head also belongs the opposite of publicity, privacy or secresy, in so far as any case may arise presenting a sufficient demand for arrangements directed to that end. In some cases, secresy may be subservient to correctness and completeness; viz. by withholding from a mendaciously-disposed deponent, mendacity-serving information: in other cases, whatever use it is susceptible of will be confined to the prevention of vexation—of that vexation, which, it will be seen, is liable to spring in various shapes out of the communications liable to be made by the unrestained divulgation of judicial evidence.

8. Counter-evidence: arrangements for giving admission to such evidence from whence opposition may come to be presented to the testimony in question: evidence tending to the correction of it, and thence convicting it of incorrectness, or to the filling up of the deficiencies intentionally or unintentionally left in it, and thence convicting it of incompleteness.

9. Investigation: arrangements designed or tending to promote the discovery of one article of evidence through the medium of another: the discovery of a lot of testimonial evidence, for example, of a sort fit to be lodged in the budget of ultimately employable evidence; whether the article, by means of which it is discovered, be, or be not, itself fit to be so disposed of—fit to be attended to in that character: the finding out, for example, a person who was an eye-witness of the transaction, by the examination of a person who was not himself an eye-witness of it, but heard the other speak of himself as having been so.

Arrangements competent to the process of investigation, as here described, are in every case necessary, to preserve the aggregate mass of evidence from being untrustworthy and deceptitious on the score of incompleteness.*

The list of arrangements presenting themselves as capable of being employed in the character of securities against deception and misdecision, being thus numerous and multifarious—to enable the mind to obtain a clear and comprehensive view of them, in respect of their mutual relations—to observe in what respects they severally agree, in what others they disagree, and how it is that these different means co-operate in their several spheres, and become conducive to the common end—it may not be amiss to divide them into groups:—

1. In the first group come the topics of punishment, oaths, and shame—all considered as capable of being applied for the prevention of false testimony; each of them indicative of a mass or source of evil, by the fear of which it is designed that a person exposed to the temptation of delivering false testimony shall be deterred from the act. So far as these three articles are concerned, the object of the legislator is, so to manage, as that a person exposed to the temptation of falling into that species of delinquency by which false testimony, and with it the danger of deception, is produced, may never be without an adequate motive (at least a motive bidding as fair as possible to prove adequate) for strengthening him against the temptation, in such manner as to prevent his yielding to it. The course taken by these three securities for restraining the person in question from falling into the obnoxious practice, is by operating upon his will; and that in such manner as to overcome, in a direct way, whatever inclination he might otherwise have to do those things, which in this case ought not to be done.

2. In the next group come the securities which, without applying directly to the will of the deponent, aim at doing whatsoever may without preponderant inconvenience be possible to be done, towards depriving him of the power (supposing on his part the existence of the inclination,) to give into the obnoxious practice. To this head belong the taking away the faculty of premeditation (premeditation considered as a source of falsehood,) so far as can be done without prejudice to recollection—to recollection considered as a source of truth; and the depriving him of the faculty of receiving, from without, mendacity-serving information (information considered as a source of falsehood) without prejudice to the faculty of receiving, also from without, veracity-serving information—information considered as a source of truth; that is, information for the assistance of the faculty of recollection, the only way in which information from without can in any way be contributory to that useful purpose.

3. To the third group belong those securities which operate by lending the powers of the law to the procurement of all such evidence as the case happens to afford, thereby preventing such incorrectness and incompleteness in the aggregate mass of evidence (incompleteness amounting, in some cases, to the total absence of all evidence) as might be the result of such evidence, when delivered, as happened to present itself without the assistance afforded by those powers:—1. General powers for compelling answers to interrogatories; 2. Powers for insuring the production of evidence operating as counter-evidence to what would otherwise have been delivered; 3. Powers for investigation of evidence—i. e. for obtaining the testimony of one man, by means of indications given of it by the testimony of another.

4. By itself (there being nothing either to contrast or match with it) comes publicity: an instrument of multifarious application and use: an instrument, the destination of which seems to be (like that of the grindstone and the hone) to give power and efficiency to all those other instruments; augmenting the tutelary force of punishment and shame, and extending and promoting the application of it to all the characters of the forensic drama—to parties, extraneous witnesses, and judges—care being taken not to push the application of it in such manner as, by affording mendacity-serving information to the ill-disposed, to contravene the ends of justice in one way, more than it promotes them in another; nor by preponderant vexation to outweigh the advantage produced in respect of those direct ends, by inconvenience produced in respect of the collateral ends of justice.

5. By itself, again (there being nothing either to contrast or match with it,) comes the use of writing; the application of that handmaid of all the other arts and sciences to the particular use of judicial practice, and of that branch of it in particular which concerns testimony: a security to which publicity itself is indebted for the greatest part of its existence, and all those other securities (including testimony itself) for their permanence.

For the exhibition of these arrangements, no novelty will be produced—no force of invention will be employed. I do but copy: the pattern, approved by the experience and applause of ages, is furnished by established practice: what features of novelty may be found, will be confined to the exhibition of the use and reason of each arrangement, and to the claim made to the tribunal of common sense and common honesty for the steady and constant use and employment of those instruments of truth and justice, the existence of which is indisputed and indisputable.

Yes, so it is: it is from the established order of things, and from that alone, that the above list of securities for testimonial trustworthiness is deduced: but, if the virtue of them were turned to the account to which it might and ought to be turned, the changes that would be made in the established order of things would not be inconsiderable.

In the estimation of the propriety and utility of these several securities,—the main end, rectitude of decision, with the more particular ends on this occasion subordinate to it,—viz. prevention of incorrectness, mendacity, incompleteness, and consequent deception, as above—will not be the only objects to be kept in view. The collateral end—the avoidance of collateral inconvenience, in its triple shape of vexation, expense, and delay, ought never to be out of sight.

The uses pointed out as resulting from the several proposed securities—the uses employed in the capacity of reasons to justify the recommendation given of them—will be drawn partly from one of these sources, partly from the other.

At the tail of the group of expedients, in and by which it is altogether proper, and more or less customary, for the legislator to take an active part in the service of truth and justice, seems to be a proper place for putting him upon his guard against the expedient, of which in the same view so abundant, and in every instance so unhappy, a use has been made; viz. the exclusion of proffered testimony—not on the ground of its irrelevancy, of its uselessness in that character, of its worse than uselessness in respect of the expense, vexation, and delay with which the delivery and receipt of it would be attended,—but on account of the danger of its becoming productive of deception, and thence of misdecision, on the part of the judge; a vain, but unhappily too prevalent terror, of the vanity of which proof will require to be given in its place.

[* ]This last article in the list of securities, which, as the reader will have seen, is a security, not for the correctness of any one article of evidence, but for the completeness of the whole mass, belongs to the head of Forthcomingness, which was reserved by the Author to form part of a work on Procedure.—Editor.—[See Principles of Judicial Procedure, (in Vol. II. of this collection) Chap. X. Judicial Communication, and Chap. XXII. Prehension.]