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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 VII.

OF PUBLIC OFFICES AT LARGE, CONSIDERED AS REPOSITORIES AND SOURCES OF PREAPPOINTED EVIDENCE.*

§ 1.

Official evidence, what—Topics for discussion.

In respect of the operation performed in execution of the functions, powers, and duties, for the execution of which the office was established, or is kept on foot, and the facts, or alleged facts, on which these operations are grounded,—every office (be its functions, powers, and duties, what they may) may be considered as a repository or source of preappointed evidence; it being among the objects in view in the institution of the office, that, as the facts come into existence or under review, the remembrance of them should be preserved.

Such was the advantage derivable and derived to justice, in some measure, from official situations; even in those times of intellectual darkness, in which, even among persons constituted in authority, the practice of the art of writing was not in universal use.*

But, by the extension which that master art has acquired, especially after the aid it has received from the operations of the press, whatever use may in this shape be derivable from the several public offices, has received in point of extent a prodigious increase.

In respect of the several legally-operative, or in any other point of view useful and important, facts, in this manner (whether with or without design) more or less effectually secured against oblivion, against concealment, and misrepresentation,—so far as these desirable effects are actually produced, so far all is well: that which is done coincides protanto with that which ought to be done; and, on this part of the field of legislation, nothing remains to be done by the legislator himself, or heard by him from any other quarter in the way of suggestion or advice.

But, in whatever degree, under the government of each country, it may happen to those several important objects to be actually and habitually accomplished, some considerations may be brought to view, which as yet will not be found altogether undeserving of notice, and which may be ranged under the following heads; viz.—

1. Uses derived or derivable from the masses of pre-appointed evidence, of which the several public offices are, or might conveniently be, rendered the repositories or the sources.

2. By what considerations a just estimate may be formed of the degree of verity or trustworthiness of the evidence thus afforded.

3. By what means the verity of the statements or narrations thus delivered, may most effectually be secured.

4. By what means the quantity of true and instructive evidence obtainable from these repositories or sources, may, upon terms of the greatest, and that preponderant, advantage, be increased: with preponderant advantage, reference being made to the several ends of justice, as well as to the sources derivable from the several departments of government, to which the offices in question respectively belong.

§ 2.

Uses derivable from official evidence.

Considered in the most general point of view, the evidence furnished by the several public offices, and (in virtue of the evidence so furnished) the institution of those offices themselves, may be seen at first glance to be, in two distinguishable ways, conducive to the ends of justice, and in particular to the support of the rights and obligations established or meant to be established by the law.

1. By means of evidence of that description, a multitude of facts, of which, on different accounts, men are concerned to be informed, and, in particular, facts of the legally operative class, are preserved from oblivion and concealment:—facts of which the remembrance would not otherwise be preserved.

2. The statements or narrations of which the matter of this official body of evidence is composed, present, under certain conditions, in virtue of the situation from which they issue, or into which they have been received, a degree of trustworthiness—a title to credence—beyond what could reasonably be looked for on the part of so many statements or narrations to the same effect, if issuing from so many individuals taken at large.

More evidence, and that better:—such, in five words, are the advantages or uses derived from official situations, considered, in the most general point of view, in the character of sources or repositories of evidence.

Contemplating now in a nearer point of view the uses derivable from preappointed evidence of this description, we shall find one and the same article or mass of evidence useful in that character to different persons, in as many different ways.

In the carrying on of the various operations included in the aggregate term government, it will frequently happen that the knowledge of the same event or state of things shall be necessary to different functionaries, acting in so many different departments of government. Thus it is that the same article or mass of official evidence is applicable to divers uses, correspondent to the different departments to the business of which the knowledge of the fact evidenced by it is subservient.

Take, then, any government office whatsoever: the written evidence of which that office is the repository, and even the testimonial evidence of which it may eventually be the source,—that is, each or any article, or competent mass of it,—will be found susceptible of a variety of appropriate uses, some direct and constant, others collateral, and, comparatively speaking, indirect.

By the term direct uses, may be understood such uses and purposes to which the receipt and conservation of the evidence in question cannot but have been directed: the knowledge of the facts thus evidenced being necessary to the due performance of the operations, for the performance of which the office in question was instituted and established.

What follows concerns the collateral uses, to which it may happen to one and the same article of evidence—official evidence—to be applicable.

Suppose, on the occasion of a suit (non-penal or penal) instituted, or in a way to be instituted, between any two or more parties, this or that matter of fact requiring to be proved or disproved, whether in the character of a principal fact, or in that of an evidentiary fact. Evidence of this fact is afforded by the books kept in and for the purposes of the office; or by the testimony of some person to whose knowledge, in virtue of the situation occupied by him in that office, the fact in question happened to present itself. Here we have one sort of collateral use derivable from the body of preappointed evidence, of which the particular office in question is the repository or the source.

The sort of collateral use thus capable of being derived from any article of official evidence, may be termed its judicial use.

The books of the English office (for example) called the Navy Office or Navy Board, have for their direct object the recordation of such facts to which it may happen to require to be present to the mind of this or that official person employed in giving existence and direction to that part of the national force, in all its several shapes, which has the sea for its field of action. But, in the discharge of this function, it has happened to the persons under whose charge some of the books belonging to that office have been placed, to make entry of the deaths of persons of certain descriptions, who, while living, entered into the composition of that force.

Again; in official situations, as in all other situations, men are liable to misconduct themselves. Suppose in any such office—in a word, in any office whatsoever—an act of transgression committed, or supposed to be committed, by any officer belonging to it;—on the question, whether the act in question has been committed by the official person in question; or on the question, whether such act, if committed, is an act of transgression; recourse is had to the evidence furnished by the books kept, or papers received and preserved, for the purpose of the direct business of the office. Evidence thus applied, having evidently a double use, presents itself under a sort of mixed character. If the transgression, or supposed misconduct, is such as, for the prevention of it in future, and for the rendering due satisfaction for the past, requires not the interference of any public functionary other than the chief of the department to which the office in question belongs,—the use then made of it may be considered as coming under the description of the direct use: and the functionary to whom it is of use, and to the discharge of whose functions it is subservient, is no other than the administrator—i.e. the chief of the department for the use of which the article in question has been produced, or received and preserved.*

In this same case, suppose the gravity of the transgression, in the eyes of those to whom if belongs to pronounce, to be such as to call for a prosecution—non-penal, for the mere recovery of the money so diverted into an improper channel—or penal, for the punishment of him by whose transgression it was thus diverted:—the evidence, which before was evidence for the use of the administrator only, is now become evidence for the use of the judge.

Suppose that, in consideration of some such instances of transgression already committed (as above supposed,) or in contemplation of any such instances of transgression as being liable to happen for want of proper checks and safeguards, it occurs to the legislator to call for the production of the books of the department in question, in the view of observing upon what principle, and in what mode, the operations of that department are carried on and recorded:—here, in the person of the legislator, we have another functionary—the legislator, to whose use, in such his character, the same article or mass of evidence may happen to be found subservient.

The sort of collateral use thus capable of being derived from any article of official evidence, may be termed the statistic use.†

§ 3.

Sources of trustworthiness and untrustworthiness in the case of official evidence.

In point of trustworthiness, whatever superiority can be possessed by officia, evidence considered as such, presents itself as standing upon one or other of two distinguishable foundations:—

1. Pre-eminent responsibility: a degree of responsibility beyond what is to be found in the situation of the majority of the members of the community taken at large. In proportion to the value of the office—of whatsoever elements that value may be composed—emolument, power, and dignity (the efficient cause of the respect habitually paid to the possessor of the office, as such, by the community at large;)—in proportion to the magnitude of that value, in all those shapes taken together, the man in office has so much more to lose (i. e. that he is capable of losing) than the man not in office: so much, by the loss of which he is capable of being subjected to a species and quantity of punishment, to which an individual at large cannot be subjected.

2. Presumable impartiality:—of the situation in which a man is placed by the possession of the office, the effect (it is supposed) being such as to place him out of the reach of those self-regarding and other interests, to the sinister influence of which, the testimony of an individual taken at large stands exposed.

Of responsibility, in the sense above explained, the influence, in the character of an efficient cause of, or security for, trustworthiness in testimony, and in particular in case of official testimony, seems out of dispute.

But, from the efficiency of that influence in the character in question, the same situation affords drawbacks, and those of no mean account, the neglect of which would be productive of much error in practice.

1. Employed in the sense above explained, responsibility—the term responsibility—may be said to be understood in its beneficial sense: in the sense in which, so far as it has place, its operation is purely beneficial to the individual in whom the quality of responsibility is considered as inhering. But in this sense responsibility on the part of any person is no otherwise contributory to the trustworthiness of his testimony, than in as far as he is also responsible in what may be termed its burthensome sense: a sense extremely different from the other, though so habitually confounded with it under the same appellative. It is only in so far as in case of transgression he is liable to lose—actually liable, and eventually subject, to the burthen of loss, or to the bearing of a burthen in some other shape,—that a man’s having more, by the loss of which, if lost, he would be a sufferer, affords any reason for regarding his testimony as superior in point of trustworthiness to that of one who has not so much to lose.

In point of magnitude (i. e. possible magnitude,) the value of the eventual suffering, of which the responsibility and consequent security is composed, is increased: but, in point of probability, it may be diminished.

The existence of responsibility in this its burthensome sense being a causa sine quâ non to the efficiency and utility of its influence, in the respect in question, in its beneficial sense,—the causes by which a deficiency of it in its burthensome sense is liable to be produced, present a claim to notice.

1. Superior and unamenable power. If, in the case of incorrectness or prejudicial incompleteness on the part of his testimony, the situation of the official person in question be such as to place him out of the reach of punishment in any shape,—the security afforded by his responsibility, in the beneficial sense of the word, amounts to nothing. Instead of being less, he is more apt to transgress in this way, than an individual taken at large. Examples are too prominent to need mentioning.*

In this case, the beneficial influence of eventual punishment is done away, because, even supposing detection performed, and transgression manifest, punishment will not follow.

But, in a situation of the kind in question, whether the application of punishment in case of detection be or be not obstructed, detection itself is apt to be prevented or obstructed.

When the operation is thus exempt from danger, lies are a sort of article, which whosoever, having power, conceives it worth his while to bespeak, may command in any quantity, as well as (subject to the condition of security against detection, as above) of any quality, he can desire. Be the proposition what it will, so that in a competent proportion the matter of reward be attached to the act of signing it, it can never want for signatures. And, in such case, what is really the fact of which the signature affords the proof? Not that the subscriber really believes the supposed fact which by his signature he declares himself to believe; but that in some shape or other he has been paid, or expects to be paid, for writing it.

In this case,—so far as the responsibility, in the beneficial sense of the word, is the result of the emolument, power, or dignity attached to the office,—the higher the degree of the responsibility, the more completely is it destructive of the trustworthiness of the office, in regard to the statement or declaration thus made: since the more a man has to gain by falsehood (the force of the tutelary, the mendacity-restraining motives, being the same in both cases,) the more likely he is to commit it.

Take any given mass of absurdity, howsoever palpable:—a man who would not by his signature declare his belief in it for £14 a-year, would with great readiness do so for £14,000, were it only for the sake of the abundance of good which it would be in his power to do with it.

2. If, in the particular instance in question, in case of incorrectness or incompleteness on the part of the statement, the existence of such cause of deception be unknown—unknown to every one but him whose statement it is,—the influence of his situation, on the occasion in question, in the character of a cause of trustworthiness, may be set down as equal to 0.

In this case are all statements concerning any of those self-regarding psychological facts, in regard to which, in case of falsehood, the falsehood finds no physical fact so connected with it as to contradict and disprove it. Take, for example, a declaration of opinion or belief. No absurdity can imagination itself figure to itself greater than many a one in which many a man has declared his belief, and (so far as can be inferred from his actions) even with sincerity and truth. The absurdity of the fact, or rather of the proposition, not being capable of affording any conclusive evidence of the mendacity of the assertion whereby a man declares his belief of it; hence it is, that, so far as the absurdity of the prejudice is a proof of the falsity of the proposition whereby a belief in it is asserted, there is no proposition so absurd, no proposition so palpably false, in which—in office as well as out of office—in the highest, and in the beneficial sense the most responsible offices, as well as in the lowest and least responsible ones—the legislator may not make sure of causing belief to be declared, by any number of persons from whom the extraction of declarations of this sort is regarded by him as conductive to the ends which he has in view.

The words by which the declaration itself is expressed—and, moreover, the fact that it is by the individual in question that such declaration has been made—may be in any degree notorious, known to every member of the community without exception; yet still the abstruseness of the subject, howsoever produced, whether by the nature of the subject or by human artifice, may, in case of falsity, afford such a degree of security against detection, and thence against responsibility in the burthensome sense, as shall be sufficient to do away in a great proportion, if not altogether, whatever degree of security for trustworthiness may stand attached to the office on the score of responsibility in the beneficial sense.

Scarce a day passes in which, in the ordinary course of business—that is, of the fee-gathering husbandry—an English judge, of the learned and superior class on which that official title is in a manner exclusively bestowed, does not, by his signature or by his connivance, give utterance and currency to falsehoods in abundance: but, except to those who are either in the habit or the expectation of deriving profit from the same source, either the fact of the falsity is unknown, or, in consequence of the deception that has been practised upon them, men have been taught to look upon such falsehood as being either necessary, or in some unknown way or other conducive, to the attainment of the ends of justice.

3. Aggregation of a number of colleagues in office in such manner as to constitute a body corporate, or board.

Superiority of power, and non-notoriety of the falsity of the statement made, or (what comes to the same thing) of the part taken by the official person in question in the making of such false statement, have already been mentioned as two circumstances, each of them having its separate operation in the character of a drawback on that degree of superordinary trustworthiness which has the official situation for its source or efficient cause.

By the junction made of the individual in question with others in a board, both these drawbacks are made to centre in the same person. To the power derived from his own situation, each member of the corporate body or board adds the power derived from the situation and connexions of his several colleagues. A board is thus a rampart of defence, behind which each of its members finds a place of security against all attacks of the nature of those of which responsibility in the burthensome sense is the result. Bandied to and fro amongst a number of individuals, on no one of whom it can fasten to the exclusion of the rest, the disrepute (whatever it be) which in the case in question, were it the case of a single individual, would attach itself to the falsity, remains in the present case in a state of suspense, not being able to find any one of them to fix upon. To each of the members which compose it, it is the nature of a board to serve as a screen from responsibility in the burthensome sense—a screen from whatever punishment or disrepute is, in the case in question, meant, or pretended to be meant, to be attributed to transgression: to transgression, as in other shapes at large, so in the shape of falsehood—the only shape in which it comes in question here.

By the want of responsibility in the burthensome sense, attached to the essence of a board, inferiority instead of superiority in point of trustworthiness may be attached, not only to such statements in the delivery of which the members of the board speak in the character of percipient witnesses, but to statements which, having been delivered in the like character by officers subject to the authority of the board, receive from the board an attestation of verity, express or virtual, in the way of discourse or in the way of deportment; viz. by being acted upon by the board as if believed to be true.

In any such subordinate situation, falsehood and misrepresentation may be produced by sinister interest, not only in a pecuinary shape, but in the shape of indolence or love of ease: and not only, as above, by a vicious state of the will, but by a weak or vicious state of the intellectual faculties: particularly where the business of the office is of such a nature, that the statements and representations made by such subordinates are such as come under the denomination of scientific evidence.

In political administration, a board, in contradistinction to individual management, is an invention which, throughout the sphere of its authority, has for its properties and effects the securing transgression against punishment, the depriving merit of its reward, the extinction of emulation and consequent exertion, the perpetuation of incapacity, indolence, and negligence—in a word, of misconduct in every shape imaginable: and this not so much on the part of the members of the board itself, which by the prominence of its situation engages in some measure the public eye, as on the part of the subordinate functionaries; whose functions, while they have little to attract the eye of the public, have much to repel it, and who are the less looked after by the public, in proportion as they are supposed to be well looked after by their superiors at the board.

The tendency of the sort of institution in question to produce misconduct in any other shape than that of falsehood and misrepresentation, belongs not to the present purpose. But, this chapter having among its objects the showing how to form a just estimate of the trustworthiness of official evidence, and how to render it more trustworthy than it has been found to be in practice, it became a necessary task to inquire by what causes its experienced deficiency in point of trustworthiness is produced: and among these causes, one of the most efficient was found to be, the artificial union thus effected among the highest stationed of the hands by which the business of office is performed; viz. in respect of the deficiency thence resulting in point of responsibility, taken in the burthensome sense.*

So much for the drawbacks from the superior trustworthiness supposed to be attached to official evidence on the ground of responsibility. Remains to be estimated the amount of the superior trustworthiness supposed to be attached to it on the ground of presumable impartiality.

Supposing the impartiality perfect, and the existence of this important though negative quality out of doubt, the trustworthiness of the evidence, in so far as depends upon the state of the moral faculties of him whose statement it exhibits, is beyond dispute.

In the case of official evidence, it is no uncommon case for the testimony, so far as depends upon impartiality, to be in this perfect state. In the case where the purpose to which the evidence is applied is a judicial purpose, be the office what it may, this impartiality may, it should seem, be stated as the natural state of things. In an official book an entry is supposed to have been made of the birth of the plaintiff, or the marriage or death of one under whom he claims. It can only be in consequence of same comparatively rare accident, if the keeper of the official book was, at the time in question, exposed to the influence of any interest by which he could have been so much as excited to suppress an entry to the effect in question—to insert an entry totally false—or, in the description given of the fact in question, to insert a circumstance known by him who inserts it to be false: and so in regard to an entry supposed to have been made in this or that book belonging to this or that judicial office; an entry, for example, of a judicial incidental order supposed to have been made, or final judgment supposed to have been pronounced. Impartiality is, in a case of this sort, the ordinary and probable state of the mind of the official narrating witness. Why? For this, amongst other reasons, viz. that, at the time at which the entry is or ought to be made, the application which eventually comes to be made of the evidence to the judicial purpose in question (whether it bears, when it does take place, any relation or not to his interest) cannot be so much as present to his mind.

But this quality, though a natural accompaniment of official evidence, is not a necessary one: and it would be a mischievous error, if, because in ninety-nine instances out of one hundred, the application of the securities for correctness and completeness is unnecessary, in the hundredth in which it is necessary it should, by any such general conception of superior trustworthiness, he prevented from being made.

In judging of the degree of credit due to the testimony of a witness taken at large, a question that can never cease to be relevant is. Had he any interest in misrepresenting the fact in any respect?—and, in judging of the degree of credit due to the statement of the official testimony expressed in writing or otherwise by one official person, the same question can never cease, in this particular case, to be as pertinent and proper as in the general case.

Among the uses above stated as derivable from official evidence, is the use adapted to that accidental and comparatively unfrequent, but never to be neglected, class of cases, in which, on the occasion of some transgression imputed to this or that official person belonging to the office, the same article of official evidence which in the ordinary state of things is of use only to the administrator (i. e. to some one or more of the officers belonging to the department in question, or other officers or individuals holding correspondence with it,) becomes evidence to, and to the use of, the judge. But in this class of cases, and it is not a narrow one, nothing can be more obvious or undeniable, than that, so far as depends upon presumable impartiality and nothing more, official evidence—the official evidence in question, so far from being a point of trustworthiness above the level, will stand below the level, of evidence taken at large.

§ 4.

Rules for estimating and securing trustworthiness in the case of official evidence.

Principles being laid down, a few observations, bringing to view (in principle at least) the arrangements that have presented themselves as conducive to the forming, in the case of official evidence, a just estimate of its trustworthiness, may perhaps be not without their use. And the same rules which serve for showing in what degree such evidence of that description as is found in existence is possessed of that desirable quality, will serve for indicating in some measure such arrangements as promise to be conducive to the giving of that same desirable quality to evidence of the like description as it may be destined to come into existence in future.

Rule 1. To form a just estimate of the trustworthiness of an article of official evidence, look out for the several causes of inferiority that are liable to have place in regard to evidence at large;—viz. 1. That which has place in the case of circumstantial evidence; the fact spoken to not the very fact in question, but a fact considered as evidentiary of it:—2. That which has place in the case of unoriginal evidence; where, between the information supposed to have been given by the percipient witness, and the ear or the eye of him to whom it belongs to judge, one or more media of transmission are supposed to have intervened:—3. That which has place in the case of free and uninterrogated statements, where the information in question, as above (whether any such media of transmission have intervened or no,) has been made without being subjected to the influence of interrogation, or eventual punishment, in the character of securities for correctness and completeness:—4. That which, on the part of a witness of any description (viz. extrajudicially percipient and narrating, extrajudicially reporting, or judicially reporting and deposing witness,) has place in the case of diminished trustworthiness; howsoever the diminution be produced—viz. whether by inferiority in point of intellectual aptitude, by exposure to the action of interest acting in a sinister direction, or by improbity of disposition, considered as rendering his effectual resistance to that sinister force by so much the less probable.

The fact in question, the fact spoken to by the official document, or the statement made by the official person,—is it of the number of those facts by which, according as they are credited or not—according to the opinions entertained concerning them—his own reputation, or that of any other person specially connected with him by any tie of self-regarding interest or sympathy, may, either in a favourable or an unfavourable way, be affected? Is it, for example, an act of his own, or any matter of fact or supposed fact, on the belief or disbelief of which his own act was grounded, or on which the propriety or impropriety of his own conduct may be found to depend? If yes, there is an end of that ground of trustworthiness which is composed of impartiality: exemption from the action of sinister interest.

Rule 2. For a judicial purpose, in the case where, for the purpose of the official business, the evidence in question, having been already committed to writing, exists in the shape of ready-written evidence,—in that same shape, though unsanctioned and uninterrogated, it may in general be presented to the cognizance of the judge, viz. for avoidance of delay, vexation, and expense, notwithstanding the imperfection and comparative untrustworthiness incident to it in that shape.

Rule 3. But if, on any of the grounds mentioned as above, the trustworthiness of it be regarded as diminished, all such operations ought to be allowed to be performed, as, supposing the information to have issued from any ordinary and non-official source, would be regarded as necessary to place the trustworthiness of it (viz. its correctness and completeness) upon the strongest and surest ground: to wit, by tracing out direct evidence of the fact in question through the medium of the circumstantial, or by tracing out percipient witnesses through the medium of judicially or extra-judicially reporting witnesses, and by applying to the testimony of the respective witnesses the ordinary securities for trustworthiness, viz. interrogation, publicity, denunciation of eventual punishment, &c. as the case may be.

Rule 4. Note, that, without any imputation upon the trustworthiness of the witness (the author or reporter of the narrative or statement exhibited by the article of official evidence,) the application of the process of interrogation may, to the purposes of correctness and completeness taken together, but more particularly completeness, be indispensable. For a mass of testimony, though correct and sincere, may to one purpose be complete, to another incomplete: incomplete, and not capable of being rendered complete by any other means than an interrogatory or series of interrogatories adapted to the individual purpose actually in hand.

A distinction requires here to be noted, between the information sought, and the document in and by which it is supposed to be contained and presented. To either of these objects, where an office of this or that description is the source or repository of the information sought or the document consulted, the term official evidence may without impropriety be applied. But a case that may very easily happen is, that—where the matter of the document is more or less false, and would (if trusted to) be deceptitious—true and useful information, information such as to the purpose in question shall be complete, and in every part correct, shall be obtainable and obtained by means of it, viz. by a due and skilful application of the instruments for the extraction of truth—the instruments already mentioned. But, to the ends of justice, the material object is, that the information obtained shall be complete and correct. Whether the document by means of which it was obtained, was or was not possessed of those same qualities, is to this purpose a matter of indifference.

Were this distinction to pass unobserved, official evidence from this source might be in a high degree over-valued or under-valued; and from either error, much practical mischief to justice might be the result. The official documents of which this or that particular office is the repository or the source—i. e. the information already contained and presented by them—is very apt to be false: but if the conclusion were to be, Receive not, credit not, any information that comes through that office, and this conclusion were acted upon, here would be a great mass of light extinguished—of light indispensably necessary to the purposes of justice. From the office in question, true and instructive evidence might, by a suitable application of the instruments for the extraction of truth, at any time, and for any of a variety of purposes, be obtained: but if the conclusion were to be, Receive as true whatever information may be presented by any of the documents of which that office is the repository, and this conclusion acted upon, an habitual course of error, deception, and injustice, would here again be the result.

Rule 5. The same rules, which, in the several cases individually taken, serve for estimating the trustworthiness of an article or mass of evidence—in the present instance, a mass of official evidence—will serve for securing the possession of this desirable property to the whole mass of official evidence taken in the aggregate. The instruments of security in question adapted to the purpose, are—1. The arrangements and operations so often mentioned under the name of securities for trustworthiness; 2. The application of these securities to the purpose of investigatorial procedure: tracing out, in relation to each article of information, the percipient witness (if any such there were) through the medium of the reporting witness or witnesses. In each individual case, to employ these instruments in so far as requisite, or permit them to be employed in so far as requisite, is the function of the judge; and it is by performing it that he enables himself to estimate the trustworthiness of the evidence, and the verity of the facts probabilized by it. To allow or prescribe, as the case may be, the employment of these same instruments in future, is the function of the legislator: and it is by performing it that he does what depends upon him towards securing this desirable result in all future instances.

Of the several purposes, as above distinguished, to which it may happen to official evidence to be found applicable,—the collateral and incidental, the judicial, is the only one that, in the observations just delivered, has hitherto been in view. But if, when applied to that purpose, any of them be found applicable with advantage, they will scarcely be found applicable with less advantage to the direct purpose of the several masses of official evidence, of which the several offices are respectively the repositories or the sources. If, in any such office, in the instance of this or that species of document, the matter be regularly replete with falsehood, arrangements and operations have above been pointed out, by means of which that falsehood may, on any occasion, be converted into a source of useful truth.

Here, then, are two other functionaries—the administrator and the legislator, to whom the above suggestions (if useful to the judge) may also be of use: to the administrator (i. e. to that branch of the executive authority to whom, under the legislator, the conduct of the business in each several office depends,) that he may take such measures as lie within his competence for the substitution of true documents to false ones: to the legislator, that, in default of his subordinance the administrator, he may apply his own superordinate authority to the same salutary purpose.

[* ]See the author’s further remarks on this subject in the Introduction to the Rationale of Evidence, Chap. XVI. supra, p. 72.

[* ]In the official establishment of the city of London there exists still one officer, the remembrancer, whose principal if not sole function originally consisted in the preserving in his memory the remembrance of such facts as it might happen to the city, in its corporate capacity, to have a special interest in bringing to view, especially in presenting to the cognizance of the superior authorities.

When the practice of the act of writing, though not unknown, was still comparatively rare, printing not as yet invented, such was the importance attributed to that branch of learned industry, that the bare custody of the fruits of it constituted an office, to which the judicial constituted but an appendage. In proof of this, note the name of recorder, by which the principal local and permanent judge is designated in some of the principal towns in England, the metropolis included; and the name of master (originally clerk) of the rolls, the sole appellation of the Equity-Court-judge, whose jurisdiction, though subordinate to, wants little of being co-extensive with, the judicial authority of the Lord High Chancellor, the highest amongst the English judges.

[* ]Thus, suppose an office belonging to the department or finance. An officer causes or permits the money lying at the disposal of the office to be applied to his own use, or to some other use not comprised in the number of the uses to which it was destined. From the same books, by which, had the application made of the money been proper, evidence of such proper application would have been presented,—evidence of the improper application in question may be deducible.

[† ]Of the official evidence of which the several public offices are the repositories or sources, the statistic use, as above described, is every now and then made, under the British constitution (though not to a degree of extent or constancy nearly sufficient,) by committees of one or other House of Parliament. Of this use, the operations of the House of Commons finance committee, of the years 1797 and 1798, affords the most extensive and efficient exemplification that is to be found in the history of the British or any other nation.

[* ]Hence, in a constitution such as the British, the danger attendant on placing in any situation of extensive power a person too nearly allied to the crown: the jus nocendi, which, by the necessity of onerously responsible co-operators, has been taken away from the monarch himself, is thus conferred upon his relative.

In the reign of Queen Anne, the husband of the monarch was commander-in-chief of the naval force: in the burthensome sense, the domestic superior of the irresponsible monarch could not, practically speaking, be considered as responsible. But to his office a council was attached; in such sort that the power exercised by him was in fact exercised in and by a board—a board, of which the members were not in the onerous sense irresponsible, their responsibility being in this board not destroyed, nor otherwise weakened than in as far as, in every board acting on the ordinary terms, responsibility is weakened.

Other circumstances contributed, moreover, in this instance, to lessen the inconvenience. Being a foreigner, little acquainted with the state of persons and things in England, the Danish prince was in that respect the less disposed to apply to the business with an independent and peremptory will; while the mildness of his temper, as well as of that of his august consort, concurred in promoting the same salutary result.

[* ]It would be an error, if, from what is said above, a conclusion were formed that there exists not any case in which government by bodies corporate or boards can be conducive to the legitimate ends of government. Where, in the conduct of the business of the department, neither extraordinary talent nor extraordinary exertion are necessary,—as where money is to be received, kept, and given out, according to directions given by other hands,—at the same time that misapplication of the money, if attempted, would be manifest, or easily detected,—there the force of the objections which apply to it in other cases is either done away altogether, or much diminished: and in so far as division of power is necessary to good government, the institution is indispensable.