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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 XX.

RECAPITULATION.

From the view that has above been taken of the practice of English and Roman law in relation to the collection of evidence, the following propositions seem deducible:—

1. That there is but one perfectly good and fit mode of collecting testimony.

2. That this is no other than what common sense suggests: and, as far as power and opportunity admit, and the importance of the occasion appears to demand, is naturally and commonly practised in the bosom of every private family.

3. That, to give precision and permanence to the information thus collected, so as to adapt it to the use of all times and all places, nothing more or less is necessary than the committing the testimony to writing in proportion as it issues from the lips of the person deposing or examined.

4. That, so far as writing is concerned, there is but one cause that can in any case warrant any departure from this most perfect mode; and that is, the expense, vexation, and delay inseparably attached to that invaluable mode of fixation and perpetuation.

5. That the mode of collecting evidence by means of its delivery vivâ voce, and subsequent though immediate consignment to writing, is essentially preferable to the mode which operates by the delivery of the testimony in writing in the first instance.

6. That there are but two justificative causes that can warrant the use of the inferior mode, in contradistinction to the superior mode; viz. physical impracticability, and prudential impracticability—prudential impracticability, in respect of preponderant inconvenience in the shape of expense, vexation, and delay.

7. That, on the part of the superior mode, physical impracticability may for an indefinite length of time be constituted by local distance, for ever by expatriation, as contradistinguished from exprovinciation,—prudential impracticability, for a time, or for ever, by preponderant expense, vexation, and delay, the result of local distance.

8. That English lawyers, recognising the incontrovertible superiority, not to say the exclusive fitness (where practicable,) of the above-described superior mode,—yet, so far from employing it exclusively on every occasion in which the employment of it is not impracticable, depart from it in all manner of ways, employing inferior and bad made-before it, after it, and instead of it: in cases, too, in none of which can any warrant for such departure be found under the head of impracticability, either physical or prudential, as above explained.

9. That, on these occasions, so far is the prudential impracticability (viz. in respect of expense, vexation, and delay) from being the cause of the departure from the most trustworthy mode, that, when the less trustworthy modes are attended with a superior share of that triple inconvenience, it is then that they are employed—employed to the exclusion of that superior mode which, besides its superiority of trustworthiness, has the advantage of being comparatively free from that collateral inconvenience.

10. That, taking together the entire system of procedure of which the collection of evidence forms a part,—the inferiority of the technical mode, in the English form more especially, in comparison with the natural mode herein-above recommended, is, in respect of expense, vexation, and delay, too flagrant and notorious not to be recognised by everybody—men of law themselves not excepted: but that, as often as this disadvantage is brought to view, if the system be defended notwithstanding, it is always on this ground, viz. that the mass of inconvenience attached to it in this form is (if not wholly and absolutely unavoidable) at any rate compensated for, absolutely compensated, by a preponderant mass of advantage in respect of superior security against ultimate injustice, whether by misdecision or by failure of justice: against ultimate injustice, from whatever causes derivable—whether from improprieties in respect of the mode of collecting the evidence, or from any other causes: and that, accordingly, it is its supposed superiority in respect of the mode of collecting the evidence, that constitutes either the source or at least one of the sources of that compensation, that ample compensation which it is supposed to afford on the score of superiorly good ultimate justice, for whatever inferiority may be observable in it in respect of the provision made by it against collateral inconveniences, viz. against delay, vexation, and expense.

11. That so far is this supposed compensation from being in any degree real, that in truth its deficiency in respect of security against delay, vexation, and expense, remains altogether unaccompanied by any compensation in any other shape: and that, in respect of security against misdecision and failure of justice (so far at least as the system employed for the collection of evidence is concerned,) its defects are such as to constitute an enormous addition and heavy aggravation to the load of imperfection attached to it in all those other shapes.

12. That it is not in human nature, that, in the forming a system, in which, in the pretended pursuit of the same ends, so many discordant and inconsistent courses are employed (discordant as well with one another, as, all of them, with the modes actually and from the beginning employed in pursuit of the same ends in the daily intercourse of private life,) the ends professed and pretended to have been pursued, viz. the real and genuine ends of justice, should have been the ends and objects really, steadily, and exclusively (not to say ever, and in any degree) pursued.

13. That, under the circumstances under which the existing system took its rise,—as it is not natural that in the adjustment of the detail the faculties of observation and invention should have been, so neither in fact do they appear to have been, steadily and anxiously occupied in any other endeavour than that of adding to the load of inconvenience and mischief in all imaginable shapes, in so far as profit and advantage in all shapes to be reaped by the authors and contrivers of the system, could be made to spring out of it.

14. That, in like manner, in regard to the real ends of justice,—as it was not natural that in the construction of that system they should have been taken (at least any otherwise than incidentally and occasionally, and in subordination to those sinister ends) for the objects aimed at,—so neither does it appear that in fact they have, it at all, been pursued in any other character: insomuch that the attainment of them, in so far as in fact they have taken place, is to be regarded no otherwise than in general as the accidental result, and at best no otherwise than as the occasional object, of the exertions actually made on this ground.

15. That, for ages together, the object of the contrivers and conductors of the existing system (in so far as anything that can be called an object appears to have been kept by them with anything like constancy and consistency before their eyes) will appear to have been neither more nor less than the employing the powers and privileges attached to their respective offices, and professions in the character of an instrument of depredation—licensed and unpunishable depredation: the ends of justice, as before, being, if ever, only occasionally, an object, and then a subordinate one, though constantly and invariably a pretence.

16. That, as to the existing race of lawyers, taken at any given point of time,—pupils and successors of these learned depredators,—regarding, or pretending to regard, as perfect in its kind (it not in every minute point of detail, at least in respect of its leading features) the work of such their predecessors,—not only their endeavours and wishes, but their very pretensions and professions, are confined to the keeping it, as near as may be, to its present state of assumed and pretended excellence.

17. That, of the modifications of the plan in use for the collection of evidence, the impropriety is fully and unequivocally recognised by those under whose direction it is pursued: but that from this recognition no symptoms are anywhere observable of so much as a wish, much less an endeavour, to substitute, in the room of those which they regard as comparatively unconducive, those which are regarded by everybody (themselves in particular not excepted) as in a superior degree conducive, to the ends of justice.

The best possible mode of extracting testimony—the mode which a considerate master of a family would employ when sitting in judgment on the conduct of a servant or a child—in a word, the mode by oral interrogation and counter-interrogation,—is a production of English growth. If, on a microscopical observation, the germ of it be found discoverable in the Roman process of confrontation, the same scrutiny will show how confined was the use made of it in that its primeval state, and with how much propriety the appellation of a discovery may be applied to the vast edifice that in England has been built, or might be built, upon a foundation so narrow.

If the application made of this discovery has been found neither all-comprehensive, nor comparatively very extensive, the wonder need not be great. To England the glory of it, or at any rate (so far as it extends) the advantage of it, belongs without dispute: but whether, in the establishment of the practice, wisdom or fortune had the greatest share, may not be easy to decide. Had wisdom planned it, wisdom would have carried it as far as it would go, would not have suffered it to be arrested in its progress; but the same system which employs it in one instance, neglects it in another, to which not only with equal propriety, but with equally obvious propriety, it would have been applicable.

A circumstance which contributes in no inconsiderable degree to weaken the claims of wisdom, is, that the value which appears to have been implicitly set upon this feature in the system, has never been explicitly set upon the right ground. All mouths are open in praise of the trial by jury; and this is the mode of extraction employed on a trial by jury. But its connexion with the species of procedure in which the intervention of a court so constituted is employed, is altogether accidental: the same mode of extraction might be employed, and is employed, with equal facility and equal propriety, in a court composed of a number of permanent and professional judges, or in a court consisting of a single judge. It had been observed that somehow or other the ends of justice were more effectually accomplished in that sort of court of which the tribunal called a jury was one feature, and the use of this mode of extracting evidence another, than in other courts of a different appearance in respect of both these features: but to which of them the effect was principally to be ascribed, is a question that seems rever to have presented itself. As water was considered till of late years as a simple substance, so was the trial by jury considered as a simple institution: the sagacity by which confused perceptions are rendered clear, and composite objects are resolved into their constituent elements, had never exercised itself (for when has it ever exercised itself?) upon the field of jurisprudence. The feature which consists in the composition of the court, being the feature which on many accounts would strike with peculiar force the eyes of the herd of politicians,—this feature, while it has given denomination to the complex system, seems to have engrossed all the praise of it. Trial by jury! ever blessed and sacred trial by jury! juries for ever! is the cry: not trial by oral and cross-examined evidence.*

It is, however, to this comparatively neglected feature, that that most popular of all judicial institutions would be found to be indebted for the least questionable and most extensively efficient, if not the most important, of its real merits. Against the advantages attending the mode of extraction practised, no objection can be urged, no inconvenience opposed; while the advantages purchased by the peculiar composition of the tribunal are not purchased but by great sacrifices in other shapes: the popularity, the unsuspectedness, is not purchased, but at the expense of appropriate experience; the superiority in probity, by the sacrifice of superiority of wisdom, and of the security which individual responsibility alone can afford either for probity or for wisdom. I speak of the really useful features, in which whatever there is of excellence in the institution is enshrined: not to speak of the errors and abuses that have been worked up with it by the hand of undistinguishing barbarity; the ethnico-theological and apostolic number; the mendacious unanimity, proclaimed by perjury, after having been produced by torture: not to mention a variety of other ingredients, good, bad, and indifferent, which might be modified for the better of the worse, without destroying or very materially changing the general effect.

With these advantages in point of practical efficiency and indisputable innocence, no political institution of real worth was ever kept more completely hidden from general observation. Among those who in its native country are so cordial in their admiration of this mode of trial, there are not twenty perhaps who at this moment are aware that, in contradistinction to Roman jurisprudence, the mode of extracting the evidence on this occasion is as peculiar to English procedure as the constitution of the court. The peculiarity of the practice called in England cross-examination—the complete absence of it in every system of procedure grounded on the Roman, with the single exception of the partial and narrow use made of it in the case of confrontation,—is a fact unnoticed till now in any printed book, but which will be as conclusively as concisely ascertained at any time, by the impossibility of finding a word to render it by, in any other language.

BOOK IV.

OF PREAPPOINTED EVIDENCE.

[* ]While coupled with trial by jury, lawyers could join and even lead the popular cry, because trial by jury is trial with lawyers: by itself they could not recommend it without sacrifice of their professional interest: recommendation of this principle purely and simply, would involve a recommendation of the natural system (viz. personal attendance of the parties, with mutual cross-examination,) to the exclusion of all technical ones.