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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.)

ADDITIONAL NOTES TO BOOKS I. & II.

CHIEFLY WITH REFERENCE TO ALTERATIONS MADE IN THE LAW SINCE THE DATE OF THE FIRST EDITION,—viz. 1827.

1.

P. 244, col. 2, Note *.

The doctrine laid down on this occasion by the judges was, that it was not proper for the counsel for the Crown to press an unwilling witness called by themselves, as such a course would end in destroying the credit of their own witness. In Crossfield’s case, where the same doctrine was laid down by the Lord Chief-Justice Eyre, the witness who was thus protected swore the very reverse of what he had sworn at his prior examination. This doctrine is now in abeyance, and the usual course which is pursued, is to allow the examination in chief in such cases to assume the style of a cross-examination. It seems to have been first allowed at the trial of Codling and others in 1803, for feloniously destroying a brig on the high seas. The mistress of one of the prisoners was called by the counsel for the Crown, and cross-examined by him.

2.

P. 273, col. 2, line 5—“forty shillings.”

The act 7 & 8 Geo. IV. cap. 29, which abolished the distinction between grand and petty larceny, makes the value of the property stolen immaterial in the case of simple larceny: but stealing in a dwelling-house, property to the value of £5 or more, is by the 12th section made punishable with death. The death-punishment has, however, been abolished by 3 & 4 Wil. IV. cap. 44.

3.

P. 286, col. 2, end of 3d paragraph.

The wager of law, one of the instances here alluded to was abolished by the last Law Amendment Act, 3 & 4 Wil. IV. cap. 42, § 13.

4.

P. 292, col. 2 of Note, line 9—“personation.”

To personate another, for the purpose of fraud, is a misdemeanor at common law. 2 East, P. C. cap. 20, § 6, p. 1010. The personation of proprietors of shares in the public funds and stocks, was made a capital offence by various statutes; and lastly, by 11 Geo. IV. and 1 Wil. IV. cap. 66, § 6, in cases where any transfer or receipt of money actually took place. The 2 & 3 Wil. IV. cap. 123, takes away the punishment of death, and substitutes transportation for life. A former act appears to have been overlooked, viz. 2 & 3 Wil. IV. cap. 59, which was passed for the purpose of transferring the management of certain annuities from the Exchequer to the Commissioners of the National Debt. By the 19th section, the personation of any nominee is made a capital felony. The 7 Wil. IV. and 1 Vict. cap. 84, abolishes the punishment of death for this offence, and substitutes transportation, or imprisonment for not less than two years; whereas the 2 & 3 Wil. IV. cap. 123, takes away all discretion from the Court in the numerous cases to which it refers.

5.

P. 294, col. 2, line 22—“perjury.”

By the English law, all judicial mendacity, though upon oath, is not perjury; for a necessary ingredient in the crime of perjury is, that the matter sworn to, shall be material to the issue in question, on each individual occasion, as well as wilfully false. 5 Bac. Abr. Perjury. 1 Hawk. P. C. cap. 69, § 8. Thus it frequently happens, that witnesses wilfully perjure themselves in foro conscientiæ, though not in point of law, because the false testimony may not be material to the issue, upon the record. By the late legislative alterations which substitute declarations for oaths (see some of these noticed above, Vol. V. p. 288,) the punishment of perjury has been awarded against false declaration.

6.

P. 295, col. 1, line 37—“crimes.”

By the 3 & 4 Wil. IV. cap. 49, Quakers and Moravians are allowed to make an affirmation in all cases, criminal as well as civil, in which the law requires an oath: a false affirmation being punishable as for perjury. The same relief is granted to the sect called Separatists, by the 3 & 4 Wil. IV. cap. 82. By 1 & 2 Vict. cap. 77, the same privilege is conceded to those who declare themselves to have been Quakers or Moravians, though they have ceased to belong to either of such denominations of Christians, if they continue to entertain conscientious objections to taking oaths. In the session 1838-9, a bill was brought in to allow all persons professing conscientious objections to oaths, to give evidence on solemn affirmation, under sanction of the pains of perjury in case of falsehood. It was thrown out by the House of Commons, where it was introduced.

7.

P. 301, col. 2, par. 1.

The remarks in the text apply only to the class of barristers, who are exempted from responsibility on the fiction that their employment is merely honorary. For the same alleged reason, physicians are exempted from responsibility. Special pleaders, however, and attorneys, like surgeons, are responsible for the want of care, knowledge, or skill, in the same manner as other mandatories.

8.

P. 304, col. 1, line 22—“means.”

By the ancient common law, this was considered as murder, Mirror, cap. 1, § 9. Bract. lib. 3, cap. 4; 3 Inst. 91. In 1756, three persons were indicted for murder, for having taken away the life of an innocent person, who had been convicted and executed upon their false testimony. The prisoners were convieted; but the judgment was respited, in order that the point of law might be more fully considered upon a motion in arrest of judgment. The point, however, was not argued by the then Attorney-General, from prudential reasons altogether unconnected with the law of the case. There seems to be good ground for believing that the opinions of the judges were in favour of the indictment. Fost. 132, 1 Leach. 44, 4 Black. Com. 196, note (g.) 1 East. P. C. cap. 5, § 94, p. 333, note (a.) 1 Russ. p. 427.

9.

P. 333, col. 2, line 30—“defilement.”

The 9 Geo. IV. cap. 31, declares that the carrying off of any woman (having an interest in any real or personal estate,) with intent to marry or defile her, is felony. If the woman has no property, it would still be an offence at common law; and the offenders may therefore in either case be taken into custody at once. The same observation would of course apply to the third case supposed by the author, if such a case should occur in this country.

10.

P. 338, col. 2, line 14—“intercept them.”

In criminal cases, the counsel for the prisoner may now, by the 3d section of 6 & 7 W. IV. cap. 114, have the depositions which the witnesses may have made before the committing magistrate. The counsel for the prosecution always had access to them.

11.

P. 340, par. 1 of Note *.

The special law here referred to, is the 3d section of the 23 Geo. II. cap. 11, which says, that judges of assize may direct any witness to be prosecuted for perjury at the public expense. It appears doubtful whether any such clause were necessary. The judges are in the daily habit of ordering prosecutions to be instituted against witnesses for other misdemeanors, and also for felonies; in particular, for receiving stolen goods.

12.

P. 345, col. 1, line 54—“rank of felony.”

Although this is the usual and most proper course of proceeding, it is by no means obligatory, as a prosecutor may, and sometimes, but very rarely, does, go before the Grand Jury at once.

13.

P. 351, col. 2, line 27—“English lawyer.”

Happily, since this passage was written, the punishment of death has been abolished to a very considerable extent, and is now limited to the most heinous crimes, and offences accompanied with personal violence. The last statutes on this subject are the 7 Wil. IV. and 1 Vict. cap. 84 to 89 inclusive, and cap. 91.

14.

P. 358, col. 2, end of par. 4—“the only one.”

Under the English law, there is no appeal in criminal cases (properly so called.) For what is called a writ of error, lies only upon some matter of law apparent on the face of the record.

15.

P. 368, col. 1, line 8—“bathing places?”

In Rex v. Crunden, 2 Camph. 89, it was laid down, that if a man undresses himself on the beach, and bathes in the sea, near inhabited houses, from which he might be distinctly seen, he is guilty of a misdemeanor.

16.

P. 372, col. 2, end of par. 2—“their ears.”

The prisoner’s counsel is now allowed to address the jury on the facts of the case, by the 6 & 7 Wil. IV. cap. 114.

17.

P. 377, col. 1, end of par. 2—“or sells it.”

The public are not admitted into the Central Criminal Court, except on the payment of money. No such tax is now imposed in the courts at Guildhal.