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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 XVIII.

INCONGRUITIES OF ROMAN LAW IN RESPECT OF THE EXTRACTION OF EVIDENCE.

For the extraction and receipt of testimony, the Roman system admits of but one of the two modes—the vivâ voce mode: the mode by written correspondence has no place in it.

Except in one case, and that a narrow one, viz. the case of confrontation, as between a prisoner defendant and the witnesses on the other side (of which presently,) the practice of cross-examination is unknown to it. Cross-examination, a term of English jurisprudence—a term for which (like the terms witness, testimony, right, obligation, and other terms of natural jurisprudence) one should have expected to have found an equivalent in every language—has actually out of Britain no single-worded equivalent in any European language.

Hence the door is left wide open to mendacity, falsehood, and partiality, whether from unblameable incorrectness, from temerity, or from mendacity: against mendacity, in very gross cases, some faint and inadequate prospect, perhaps, of punishment at some future contingent period; but for prevention, cross-examination being unknown, nothing can be done immediately, and upon the spot.

In the perusal of the Causes Célébrus, an observation that presented itself almost in every cause, was the extraordinary frequency of the cases of repugnant testimony, in comparison with anything which is presented by the ordinary run of causes on the occasion of the trials conducted in the English mode—a repugnancy which, for want of cross-examination, remains uncleared up; and that in cases where, from the nature of the fact, it appears evident, that by a few questions put in the way of cross-examination, or (in Romano-Gallic language) by confrontation, if confrontation were extended to these causes, the contradiction would be naturally, and in all probability satisfactorily, cleared up.

In looking for the cause of this repugnancy, and of the superior frequency of it in the Romano-Gallic practice in comparison with the English, a more candid and consolatory mode of accounting for it presents itself than would be presented by any supposed difference on the ground of morality between the two nations. False testimony is so much more frequent in France than in England—why? Because the witness, though examined vivâ voce and extemporaneously in France as in England, had in France no apprehension of seeing questions put to him in that same way, and on that same occasion, by the experienced sagacity of the legal assistant on the other side.

Whatever be the nature and rank of the cause—higher penal, lower penal, or non-penal,—the person, the only person by whom testimony could be either received or extracted, was the judge. But, unless by mere accident, it is not in the nature of things that the judge should of himself know anything about the facts on either side. In the way of extraction—that is, of interrogation, examination, putting questions,—whatever can be done from that commanding station cannot have any other ground to proceed upon, any other lights for guidance, than such facts or supposed facts as are furnished by one of the parties. The judge is, or ought to be,—the judge is supposed to be (and let him be supposed to be) impartial; but, in the instance of each witness whom he examines, the instructions, the only instructions he acts or can act from, are partial instructions, furnished by one alone of the contending parties, viz. that one by whom the testimony of the witness is invoked.

When each witness is examined by the parties—examined by both parties—examined primarily by the party by whom his testimony was called for (if called for by both,* by the plaintiff,) cross-examined by the adverse party; he is examined by two persons, who, taken together, have every interest which the matter at stake in the cause can give them, to draw from him the whole truth: each having every interest which the value of the matter in dispute to himself can give him, in drawing forth so much of the truth as makes in favour of his side. So far as the extraction of the truth is concerned, justice, under this system, has nothing to fear but such casual deficiency as may happen to take place in respect of the intellectual sufficiency of the parties and their agents in relation to this task.

Deficiency of zeal, the result of deficiency of interest, is not to be apprehended on either side. Excess of zeal, the result of excessive sensibility to the sinister action of interest, may naturally be apprehended on both sides; but its operation on each side is checked and compensated by its operation on the other.

When the business, the proper business, of both parties, is taken out of the hands of both parties, and lodged in the hands of the judge,—so far as depends upon the state of the affections, of motive and interests, the business is as badly arranged as possible. General deficiency of zeal, variegated by occasional excess of zeal, and that on one side only—general carelessness, variegated by occasional partiality, both of them almost without controul,—such is the natural result of so incongruous a state of things. Are the parties, both of them, unknown—the interests of them alike indifferent—to the judge? His interest is to get rid of them and their dispute as quickly as possible. The points he cannot help examining the witnesses to, he examines them to: the points he can help examining them to, he suffers to pass without notice. Attentive only to his own case, inattentive alike to the interests of both parties, the merit of impartiality cannot be denied to be his due. On the other hand, does it happen to him, from amity, enmity, or self-regarding interest, to have any leaning on either side? All facts operating on that favoured side find him eager to draw them forth; all facts operating in favour of the opposite side find him as determined as the care of his reputation suffers him to be, not to think of them. Under the eye of a scrutinizing public, such studied blindness would not at all times be equally safe. But, in the Roman system, whatever is done in this way is done under the veil of secrecy: besides the judge and the person under examination, no one is present but the judge’s subordinate, the recording scribe. If the object were to push carelessness and corruption to their maximum—to render, in one or other way, misdecision as frequent as possible,—no means could be better adapted to that end.

Under this system, the arrangements recommended (as above) as subservient to the purpose of cross-examination, are indeed admitted; the testimony delivered in the shape of answers to questions; each answer extemporaneous, following immediately upon the question which called for it, and in so far unpremeditated; the questions put separately—not uno flatu, in a simultaneous string; each question having the whole string of preceding answers, and in particular the last preceding answer, for a ground to work upon, for a light to work by. True: but of these subordinate arrangements, useful as they are, what is the chief use? Answer—to give effect to cross-examination: but, in the system which thus employs them, cross-examination has no place.

The notes of the evidence are taken down, not by the judge himself, but by a scribe who attends him for that purpose. Of what passes, or of what does not pass, more or less is set down, as the superior and his subordinate can agree. To the account there given of what has passed, or is supposed to have passed, the person examined is indeed made to annex his signature; but the words, even of the answers, are not so much as supposed to be given—much less, of the questions. Of the answers, no more than the substance, or supposed substance; of the questions, not so much as the substance, except such part as is, as it were, seen through the answers—such part without which the answers would not be intelligible. Negligence, violence, subornation effected or attempted by threats or promises, with or without the intention of fulfilling them—misbehaviour in every imaginable shape, may on the part of the judge have been committed, yet not the slightest trace of it need, or is at all likely, to appear upon the face of any of these minutes.

Had it been really an object to guard individuals against a species of injustice, which in capital cases would amount to legal murder aggravated by torture,—arrangements so obvious as those which in this view might be imagined, would hardly have been so universally omitted.

Without being stationed so near the prisoner as to be capable of prompting him without the observance of the judge,—a friend and nominee of the prisoner might be in the same apartment, effectually present to the purpose of hearing everything that passed.

If, for fear of prompting by signs, it were not thought fit that this assistant should be present during any part of the examination, he might at any rate be present at the final reading of the minutes. In case of their being in every respect correct, and acknowledged to be so, he might be present at the time when the prisoner, being finally interrogated concerning their correctness, confessed them to be correct, either by positive assent, or (what would be equivalent) by silence:—present to the purpose of hearing and testifying his assent, observing and testifying his silence. In case of the prisoner’s objecting to any part of the minutes as incorrect or incomplete, he might be present to the purpose of hearing, seeing, and attesting the discussion produced in consequence; he might be present to the purpose of doing, what in most cases he would naturally have to do, and think fit to do—viz. to confirm by his subscription the statement drawn up on that occasion by the official scribe, or (in the extraordinary but still possible case of an irreconcilable disagreement) entering upon the minutes his dissent, together with whatever observations he might think fit to add to it.

This assistant would naturally have been a professional assistant, of the attorney or advocate class, as most competent to the business: it might have been a non-professional friend. The prisoner (for no possible case ought ever to pass unprovided for) is too poor to purchase assistance—he is too friendless to obtain it gratis. What is to be done? Shall it rest with the judge to provide him with an assistant? An assistant so named would afford but slender security against any possible mal-practice on the part of the functionary by whom he had been named.

But wherever the Roman system of jurisprudence has been prevalent, other functionaries have never been wanting, whose function, while it has made the exercise of such charity a duty, has secured to them the requisite portion of public confidence. The confessor, for example, by whom the prisoner, if capitally convicted, would have been attended and supported in his last moments,—he, or some one of his cloth, would be the person to guard him (as above) from such oppression as might involve him in any such suffering without its having been his due.

Thus hostile is the Roman system of procedure to every end of justice—thus subservient to the sinister interests by which it has been created and preserved.

By the several governments of the American states—by those republican legislators, though bred in the sink of English corruption, this abomination has for these many years been extirpated.

Even by Napoleon, the most absolute of all despots that the world ever saw, it has been extirpated.

In this, as in its other shapes, republicans abhor corruption—despots have no need of it.

In England alone is it an object of worship; rulers protesting, and people sottish enough to believe, that the very life of the government depends upon it, and that without it everything would fall to pieces.

[* ]It is very evidently possible, but from various causes not a frequent case, that the testimony of one and the same witness shall have been invoked on both sides.