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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 I.

OF THE ORAL MODE OF INTERROGATION.

Such being the means which the nature of things furnishes for securing the correctness and completeness of testimony, what remains to be considered is, how to employ them to the best advantage.

Punishment, shame, oath, publicity, privacy: of these securities, sufficient has been said under their respective heads.

In the process of interrogation, we see an instrument, the application of which is susceptible of much greater diversification. It will constitute, though not the sole object, yet the principal object, throughout the course of the present book.

So far as testimony delivers itself of its own accord (as in the case of affidavit evidence,) interrogation, extraction, are not of the question.

Where testimony is extracted, it is by interrogation that it is extracted. Where interrogation is employed, it is administered in one or other of two simple modes, the oral and the epistolary. But, out of these two, other modes of a complex nature are capable of being made up. Of this number, what is called examination upon interrogatories—extraction of oral responses by ready-written interrogatories—is one. This demands special notice, in consideration of the so unhappily abundant use made of it in practice.

That the fullest possible scope should be given to examination ex adverse—that every person who can by possibility have an interest in rendering the testimony correct and complete, should have the power of employing interrogation to that end—has been shown in the last book.

Four rules still remain to be explained, on which the utility and efficiency of the oral mode of extracting and delivering testimony appear chiefly to rest. viz. 1. Answers impromptuary; 2. Questions put singly; 3. Questions arising out of the answers; 4. The process carried on in the presence of the judge.

I. First point,—promptitude of the response.

On the promptitude of an answer depends its unpremeditatedness; and thence the degree of security afforded against the exercise of the faculty of invention, considered as applicable to the purpose of mendacious evidence.

The security it thus affords, depends upon a matter of universal experience, expressible by this axiom—memory is prompter than invention: (understand, of such statements as, though false, shall not be capable of being shown to be so.* )

This restriction must be carefully preserved in mind. Without it, the proposition will frequently be untrue. When memory has length of time, or the obscurity of original perception, to contend with, and neither punishment nor shame is the apprehended consequence of incorrectness or incompleteness, invention may be the more prompt of the two. Hence the comparative inaccuracy of the ordinary narratives to which common conversation gives birth.

Of the oral form of interrogation, promptitude of response is the natural, but not the absolutely necessary, accompaniment.

So, of the epistolary mode, tardiness of response is the natural accompaniment; but, as anybody may see, not even here the necessary one.

As to the degree of promptitude, it must, in each individual instance, be left to the judge. In regard to the demand for recollection, the scale of variation has no determinate limits. Here, as in ordinary conversation, the time proper to be allowed will be indicated by the nature of the case.

One answer, that, with little modification, can be returned, in any case in which a particular answer cannot be returned, is—at the instant I cannot recollect; by the help of a little time for reflection, perhaps I may.

But, in general—when, in obedience to a summons from justice, a man stands forth to deliver testimony,—his time for recollection has begun, if not from the moment of the transaction, at any rate from the moment of his receiving the summons, or being applied to in a less formal manner to know what he will have to say. So far as this is the case, there will be little need of any time for reflection at the time of his examination.

Protracted beyond the natural and proper time, delay becomes silence; and, under certain circumstances, silence becomes, to the disadvantage of the proposed deponent (if an extraneous witness,) a presumption of a propensity to mendacity, or deceptitious reticence; (if a party) of the like propensity, and, what is more directly material, of a consciousness of his not having right, and thence of his actually not having right, on his side.

II. Second point,—questions put one by one, not in strings.

Of the oral mode of interrogation, neither is this feature a physically necessary accompaniment—an accompaniment essentially inseparable.*

On the part of an interrogator, what is possible, not only in this judicial but in ordinary conversation, is,—to deliver question after question—to let fly (as it were) a volley of questions, without waiting for the answers. But of such a proceeding the possibility is not more manifest, than the absurdity and inutility to every beneficial purpose.

String together a multitude of questions, immediate confusion will demonstrate the inconvenience of the practice. With equal clearness, two questions, not included one in the other, can no more be answered at once, than, with equal clearness, two objects can be seen at once. While one of the questions is receiving an answer, the attention must be divided and strained, to keep the other from escaping out of the memory.

Where the questions are presented in the ready-written form, this source of confusion has no place. Ink does not lose its hold on the paper, as facts do on the memory. While the first question is receiving its answer, any number of others may, for any length of time, be waiting for theirs.

Confusion is not the only evil of which this stringing together of questions would be productive. Force the interrogator to produce at once all the questions he would wish in any event to produce; force him to produce any more than he would wish to produce; force him, in a word, to produce any more than a single one, than the least number that can be produced at a time;—you may force him, in many instances, to furnish a mendaciously-disposed deponent with information subservient to such his sinister purpose. By the nature and quantity of the information a man calls for at other hands, no bad measure may, in many cases, be formed of the nature and quantity of the information of which he is already in possession.

III. Third point,—questions arising out of the answers.

This is as much as to say—of the answer made to each preceding question, communication received by the interrogator, with liberty to ground on such preceding answer each succeeding question.†N. B. This hinders not but that the first question, or one of the first questions put, may be of a nature to draw out the main substance of the testimony in the form of a single answer, viz. in the form of one continued and complete narrative. As for instance—What do you know in relation to this affair?

Of the oral mode of interrogation, knowledge of the answers, with the faculty of grounding ulterior questions upon them, is an accompaniment no less natural than the obligation of presenting the questions one by one.

But, though a natural, and a too obviously useful one to be separated in practice, the faculty is not (any more than the obligation) an inseparable accompaniment.

The first question having been delivered; before the answer were delivered, the interrogator might be sent out of court, and not let in again to put his second question, till after the answer to his first were finished. Absurd as the arrangement may seem in the oral mode of interrogation, it is not the less a possible one, and in effect in the epistolary mode it is realized. When a chain of written interrogatories is upon the anvil, it is frequently by the nature of the case rendered much more certainly impossible for the interrogator, in framing his second interrogatory, to know what the answer to the first will be, than on the occasion of an examination performed in the oral mode it could be rendered by the mere physical operation of putting the interrogator out of court—unless his senses of seeing as well as hearing were destroyed, antecedently to his being let in again.*

In such a state of darkness—after any one question has been delivered—to know what, for the purpose of giving completeness as well as correctness to the testimony, the next question ought to be, will frequently be, no less impossible than, in a game of chess or draughts, to know what your next move ought to be, without knowing what your antagonist’s last preceding move has been.

Even in a conversation with a confidential friend, where both interlocutors are alike desirous, the one of receiving the whole and exact truth of the case, the other of communicating it:—consider with yourself whether, the subject being a matter of importance to your personal interest or your affections, it would be a satisfaction to you to know beforehand, that, after an answer given to your first question or string of questions, it would be impossible to you to put another.

This done,—setting aside your veracious and willing respondent, call up in his place any person who, on the ground of improbity, and that disposition to mendacity which is so natural an accompaniment of it, has happened to attract your notice: then think with yourself what would be your chance for extracting from him a truth which a powerful interest urged him to conceal, if, attached to the known necessity of making a full answer to your first question or string of questions, he possessed the assurance that, however false his answers might be, no ulterior questions could ever be grounded on his lies.

True it may be, that there are occasions on which, from the extreme simplicity of the case, the answer or answers to a first question or string of questions may by a person of ordinary sagacity be foreseen with sufficient correctness and completeness; and upon the first answer so imagined, a second question framed, suitable to the purpose of succeeding to it. But the cases are perhaps not less numerous, in which such forecast would to any man, or (what to this purpose comes to much the same thing) to the ordinary run of men, be plainly impossible. But even were such forecast sure for the first question—for a question of the first degree, who would venture to assure it, for a second, for a third degree, and so on? for the utmost number of links of which it can happen to be requisite that a chain of questions and answers thus connected shall be composed?

A case which may serve to place in a clearer light the general impossibility of this kind of forecast in a degree adequate to all purposes, is one that has already been brought to view: viz. the case where, for the purpose of setting indubitable facts in opposition to the testimony of a mendacious witness, questions are put to him, calling for statements on his part relative to circumstances in all other respects irrelevant—relevant and instructive by accident only, and with reference to this single purpose.—What had you for supper? To the merits of the cause, the contents of the supper were in themselves altogether irrelevant and indifferent. But if, in speaking of a supper given on an important or recent occasion, six persons, all supposed to be present, give a different bill of fare; the contrariety affords evidence pretty satisfactory (though but of the circumstantial kind) that at least some of them were not there.

But to reach beforehand, either by provision or so much as by imagination, all the false facts to which in the agony of the conflict it may happen to a mendacious witness to give utterance—to pre-comprehend all these facts,—and on them, when so pre-comprehended, to ground a set of questions adequate to the purpose of bringing their falsity to light in the manner that has just been mentioned, is a task, the general impracticability of which appears too clear to need any further elucidation.

IV. Fourth point,—responsion performed in the presence of the judge.

From the oral mode, this feature, like the preceding one, is separable in idea, and in possibility: in the epistolary mode, it has no place in fact; in the mixt mode (oral interrogation according to written interrogatories,) it has place, but (as will be seen, and from the causes that may already be suspected) to very little good purpose.

Not to repeat what has been said of the faculty of interrogation on the part of the judge,—a faculty naturally indeed as well as properly, but not necessarily, connected with that of his presence,—the use of this presence is, in case of mala fides, to afford to him, by observance of deportment, circumstantial evidence of the emotion of fear: and thence (as above observed) of a disposition to mendacity, if the respondent be an extraneous witness; of the like disposition, or (what is more material) of a consciousness of not having right on his side, if he be a party, whether defendant or plaintiff.

In using the word presence, a reference more or less explicit is or ought to be made, as well to the occasion or purpose, as to the particular sense or senses upon which the object, in virtue of its presence, acts. At the same instant of time, two men being in every sense present to each other, the self-same object is present to one, not present to another. Objects removed to an infinite distance with relation to all the other senses, are still present to the sight.

In a Grecian court of judicature, a point was made (we are told) that the parties should not be visible—should not, in this sense, be present—to the judges. The story has much the air of fable: perhaps (as in relations of all sorts of transactions, judicial more than any other, is so apt to be the case) an individual instance was magnified into a general rule. Supposing the existence, what was the reason of this rule? By a female bosom, too deep an impression had been made (it seems) upon judicial eyes. If we believe the story, a constant and most instructive source of evidence was thus cut off, for the momentary chance of preventing a rare and casual and possible abuse. A shawl, or whatever equivalent to a shawl was then in fashion, would have been as simple and a rather less expensive remedy.

A material point is, that the testimony be delivered in the presence of a judge; of an official person, who, in case of mendacity—mendacity detected on the spot—shall be armed with authority competent to the following it up with punishment: with punishment, seizing the delinquency in the very act—not crawling after her at a snail’s pace (as under the technical system,) to afford time for squeezing the injured and the injurer with undiscriminating pressure, while the judge, by the hands of his workmen, is wire-drawing them through the offices.

Another material point is, that the presence in which the testimony is delivered be the presence of the judge—of the judge by whom the decision, to be grounded on that evidence, comes afterwards to be framed. Change the judge,—the circumstantial evidence, the important evidence above spoken of, almost entirely perishes.*

[* ]Vide supra, p. 262—Book I. Chapter XI. Moral Causes of Trustworthiness: § 4. Physical Sanction.

[* ]The necessity which the judge is under of summing up the evidence to the jury, affords him a strong motive for compelling singleness of interrogation, and singleness in the answers: it is also the interest generally of the party in whose favour the evidence preponderates, to extract it as clearly as possible. Under the combined influence of these motives, the English examinations are free from the vice here adverted to.—Ed.

[† ]This feature, though naturally connected with the one last mentioned, is not so connected with it as to be undistinguishable from it. An arrangement easily conceivable is this:—In the first place comes a string of questions calling for answers; in the next place, a string of answers in return to those questions; in the third place, a second string of questions, arising out of the answers delivered in return to the first. Here—though the questions have come, not singly, but in a string, or rather in a lump,—it is not the less open to the interrogator to ground questions upon preceding answers—ulterior questions upon the answers extracted by preceding ones.

Suppose a bill in equity with its string of interrogatories,—answer thereto consisting of a string of responses,—amendments to the bill, including a fresh string of interrogatories grounded on those responses;—suppose these several instruments spoken extempore, and at the same meeting, by the several interlocutors. In this imaginary dialogue we should have a set of questions not put singly, and yet some of them arising (viz. the second set) out of the answers.

[* ]It is even conceivable, that, in the course of a vivâ voce conversation,—a question or string of questions being put by the interrogator, and an answer or correspondent string of answers given in a breath by the deponent,—the lips of the interrogator may thereupon be closed, as those of a frog are for a certain part of the year, and then the examination may end.

It is conceivable this arrangement, and accordingly it stands exemplified: for of human, and especially juridical absurdity, no conceivable modification can be mentioned that does not stand a good chance of being somewhere or other exemplified in practice.

Cause, a criminal one; mode of procedure, by indictment; inquiry, the principal one—that in which the decision is pronounced by a jury: offence, a crime of the rank of felony. Officer of the court to the defendant, called here the prisoner: Prisoner, hold up your hand (hand held up)—How say you? Guilty, or not guilty? Prisoner: “Guilty.” or “Not guilty.” In either case, here the interrogation ends. Whichever be the response, not another question can ensue.a

[* ]Vide infra, Chap. VII.

[* ]It is even conceivable, that, in the course of a vivâ voce conversation,—a question or string of questions being put by the interrogator, and an answer or correspondent string of answers given in a breath by the deponent,—the lips of the interrogator may thereupon be closed, as those of a frog are for a certain part of the year, and then the examination may end.

It is conceivable this arrangement, and accordingly it stands exemplified: for of human, and especially juridical absurdity, no conceivable modification can be mentioned that does not stand a good chance of being somewhere or other exemplified in practice.

Cause, a criminal one; mode of procedure, by indictment; inquiry, the principal one—that in which the decision is pronounced by a jury: offence, a crime of the rank of felony. Officer of the court to the defendant, called here the prisoner: Prisoner, hold up your hand (hand held up)—How say you? Guilty, or not guilty? Prisoner: “Guilty.” or “Not guilty.” In either case, here the interrogation ends. Whichever be the response, not another question can ensue.a

[a]If a prisoner refuse to plead, the Court may order the proper officer to enter a plea of “Not guilty,” under the authority of the 7 & 8 Geo. IV. cap. 28. § 2. See R. v. Bitton, 6 C. & P. 92.—Ed.