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• Rationale of Judicial Evidence.
• Book V.: —of Circumstantial Evidence.
• Chapter I.: Circumstantial Evidence, What—how Distinguished From Direct Evidence.
• Chapter II.: Of Probabilizing, Disprobabilizing, and Infirmative Facts—examples of Principal Facts, With the Corresponding Evidentiary Facts—improbability and Impossibility, How Distinguished From the Other Kinds of Circumstantial Evidence.
• Chapter III.: Of Real Evidence, Or Evidence From Things.
• Chapter IV.: Of Preparations, Attempts, Declarations of Intention, and Thrlats, Considered As Affording Evidence of Delinquency.
• Chapter V.: Of Non-responsion, and False, Or Evasive Responsion, Considered As Affording Evidence of Delinquency.
• Chapter VI.: Of Spontaneous * Self-inculpative Testimony, Considered As Affording Evidence of Delinquency.
• Chapter VII.: Of Confessorial and Otherwise Self-disserving Evidence, Extracted By Interrogation.
• Chapter VIII.: Of Confusion of Mind, Considered As Affording Evidence of Delinquency.
• Chapter IX.: Of Fear, In So Far As Indicated By Passive Deportment, Considered As Affording Evidence of Delinquency.
• Chapter X.: Of Clandestinity, Considered As Affording Evidence of Delinquency.
• Chapter XI.: Of Suppression Or Fabrication of Evidence, Considered As Affording Evidence of Delinqufncy.
• Chapter XII.: Of Avoidance of Justiciability, Considered As Affording Evidence of Delinquency.
• Chapter XIII.: Of the Situation of the Supposed Delinquent In Respect of Motives, Means, Disposition, Character, and Station In Life, Considered As Affording Evidence of Delinquency.
• Chapter XIV.: Posteriora Priorum—priora Posteriorum. Fact Indicated, a Prior Event; Evidentiary Fact, a Posterior Event In the Same Series: and E Converso.
• Chapter XV.: On the Probative Force of Circumstantial Evidence.
• Chapter XVI.: Of Improbability and Impossibility. *
• Chapter XVII.: Atrocity of an Alleged Offence, How Far a Ground of Incredibility. ‡
• Book VI: Of Makeshift Evidence.
• Chapter I.: Of Makeshift Evidence In General.
• Chapter II.: Of Extrajudicially Written Evidence.
• Chapter III.: Of Unoriginal Evidence In General.
• Chapter IV.: Of Supposed Oral Evidence Transmitted Through Oral, Or Hearsay Evidence.
• Chapter V.: Instructions Concerning the Probative Force of Extrajudicially Written and Hearsay Evidence. *
• Chapter VI.: Of Supposed Written Evidence, Transmitted Through Oral; Or Memoriter Evidence. *
• Chapter VII.: Of Supposed Oral Evidence, Transmitted Through Written; Or Minuted Evidence.
• Chapter VIII.: Of Supposed Written Evidence, Transmitted Through Written; Or Transcriptitious Evidence.
• Chapter IX.: Of Reported Real Evidence: I. E. Supposed Real Evidence, Transmitted Through Oral Judicial Testimony, Or Through Casually-written Evidence.
• Chapter X.: Of Evidence Transmitted Through an Indefinite Number of Media.
• Chapter XI.: What Ought, and What Ought Not, to Be Done, to Obviate the Danger of Misdecision On the Ground of Makeshift Evidence.
• Chapter XII.: Aberrations of English Law In Regard to Makeshift Evidence.
• Book VII.: Of the Authentication of Evidence.
• Chapter I.: Authentication, What. Connexion of This Subject With That of Preappointed Evidence.
• Chapter II.: Subject-matters of Authentication, What. Modes of Authentication In the Case of Real and of Oral Evidence.
• Chapter III.: Modes of Authentication In the Case of Written Evidence.
• Chapter IV.: Modes of Deauthentication In the Case of Written Evidence.
• Chapter V.: Distinction Between Provisional and Definitive Authentication. Rules For the Legislator and the Judge, Concerning the Authentication of Written Evidence.
• Chapter VI.: Aberrations of English Law In Regard to the Authentication of Written Evidence.
• Book VIII.: On the Cause of Exclusion of Evidence—the Technical System of Procedure.
• Chapter I.: Object of This Inquiry—its Connexion With the Subject of the Present Work.
• Chapter II.: Technical Or Fee-gathering, and Natural Or Domestic, Systems of Procedure, What?
• Chapter III.: Cause of the Vices of Technical Procedure, the Sinister Interest of the Judge.
• Chapter IV.: Particular Exemplifications of the Vices Introduced By the Fee-gathering Principle Into Technical Judicature.
• Chapter V.: List of the Devices Employed Under the Fee-gathering System, For Promoting the Ends of Established Judicature, At the Expense of the Ends of Justice. *
• Chapter VI.: First Device—exclusion of the Parties From the Presence of the Judge.
• Chapter VII.: Second Device—tribunals Out of Reach: Or, Swallowing Up the Inferior Courts.
• Chapter VIII.: Third Device—bandying the Cause From Court to Court.
• Chapter IX.: Fourth Device—blind Fixation of Times For the Oplrations of Procedure.
• Chapter X.: Fifth Device—sitting At Long Intervals.
• Chapter XI.: Sixth Device—motion Business.
• Chapter XII.: Seventh Device,—decision Without Thought; Or Mechanical Judicature.
• Chapter XIII.: Eighth Device—chicaneries About Notice.
• Chapter XIV.: Ninth Device—principll of Nullification.
• Chapter XV.: Tenth Device—mendacity-licence.
• Chapter XVI.: Eleventh Device—ready Written Pleadings.
• Chapter XVII.: Twelfth Device—principle of Jargon, Or Jargonization.
• Chapter XVIII.: Thirteenth Device—fiction.
• Chapter XIX.: Fourteenth Device—entanglement of Jurisdictions.
• Chapter XX.: Fifteenth Device—means of Securing Forthcomingness, Uselessly Divfrsified.
• Chapter XXI.: Sixteenth Device—creation of Needless and Useless Offices.
• Chapter XXII.: Seventeenth Device—sham Pecuniary Checks to Delay, Vexation, and Expense.
• Chapter XXIII.: Eighteenth Device—double-fountain Principle.
• Chapter XXIV.: Nineteenth Device—laudation of Jurisprudential Law.
• Chapter XXV.: Habitual Contempt Shown By Judges to the Authority of the Legislature.
• Chapter XXVI.: Opinion-trade.
• Chapter XXVII.: Extension of the Above Devices to Substantive Law, As Far As Applicable.
• Chapter XXVIII.: Remedies Suggested For the Above Evils.
• Chapter XXIX.: Apology For the Above Exposure.
• Book IX.: On Exclusion of Evidence.
• Part I.: On the Exclusionary System In General.
• Chapter I.: Exclusion of Evidence. Its Connexion With the Ends of Justice.
• Chapter II.: Disregard Shown to the Ends of Justice Under the Exclusionary System.
• Chapter III.: General View of the Mischiefs of the Exclusionary System.
• Chapter IV.: Dicta of Judges On the Exclusionary System.
• Chapter V.: Species of Exclusion.
• Part II.: View of the Cases In Which Exclusion of Evidence Is Proper.
• Chapter I.: General View of the Cases In Which Exclusion Is Proper.
• Chapter II.: Exclusion On the Ground of Vexation, In What Cases Proper.
• Chapter III.: Exclusion On the Ground of Expense, In What Cases Proper.
• Chapter IV.: Exclusion On the Ground of Delay, In What Cases Proper.
• Chapter V.: Exclusion of Irrelevant Evidence, Proper.
• Chapter VI.: Exclusion of the Evidence of a Catholic Priest, Respecting the Confessions Intrusted to Him, Proper.
• Chapter VII.: Remedies Succedaneous to the Exclusion of Evidence.
• Part III.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Ground of Danger of Deception. *
• Chapter I.: Cases Enumerated.
• Chapter II.: Danger of Deception, Not a Proper Ground For Exclusion of Evidence.
• Chapter III.: Impropriety of Exclusion On the Ground of Interest.
• Chapter IV.: Impropriety of Exclusion On the Ground of Improbity.
• Chapter V.: Impropriety of Exclusion On the Ground of Religious Opinions.
• Chapter VI.: Impropriety of Exclusion On the Ground of Mlntal Imbecility, and Particularly of Infancy and Superannuation.
• Chapter VII.: Of the Restoratives For Competency, Devised By English Lawyers.
• Part IV.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Ground of Vexation.
• Chapter I.: Vexation to Individuals Arising Solely Out of the Execution of the Laws, Not a Proper Ground of Exclusion.
• Chapter II.: Enumeration of the Sorts of Evidence Improperly Excluded On This Ground By English Law.
• Chapter III.: Impropriety of the Exclusion Put Upon Self-disserving Evidence By English Law.
• Chapter IV.: Inconsistencies of English Law In Regard to Self-disserving Evidence.
• Chapter V.: Examination of the Cases In Which English Law Exempts One Person From Giving Evidence Against Another.
• Part V.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Double Account of Vexation and Danger of Deception.
• Chapter I.: Impropriety of Excluding the Testimony of a Party to the Cause, For Or Against Himself.
• Chapter II.: Examination of the Course Pursued In Regard to the Plaintiff’s Testimony By English Law.
• Chapter III.: Examination of the Course Pursued In Regard to the Defendant’s Testimony By English Law.
• Chapter IV.: Impropriety of Excluding the Testimony of a Party to the Cause, For Or Against Another Party On the Same Side. Examination of the Course Pursued In This Respect By English Law.
• Chapter V.: Probable Origin of the Above Exclusionary Rules.
• Part VI.: Of Disguised Exclusions.
• Chapter I.: Exclusion of Evidence For Want of Multiplicity.
• Chapter II.: Exclusion By Limitation Put Upon the Number of Witnesses.
• Chapter III.: Exclusion Put By Blind Arrangements of Procedure Upon Indeterminate Portions of the Mass of Evidence.
• Chapter IV.: Exclusion By Rendering a Particular Species of Evidence Conclusive.
• Chapter V.: Of the Rule, That Evidence Is to Be Confined to the Points In Issue. ‡
• Chapter VI.: Of Negative Exclusions.
• Book X.: Instructions to Be Delivered From the Legislator to the Judge, For the Estimation of the Probative Force of Evidence.
• Chapter I.: Preliminary Observations.
• Chapter II.: Of Interest In General, Considered As a Ground of Untrustworthiness In Testimony.
• Chapter III.: Of Pecuniary Interest, Considered As a Ground of Untrustworthiness In Testimony. *
• Chapter IV.: Of Interest Derived From Social Connexions In General.
• Chapter V.: Of Interest Derived From Sexual Connexions.
• Chapter VI.: Of Interest Derived From Situation With Respect to the Cause Or Suit.
• Chapter VII.: Of Improbity, Considered As a Cause of Untrustworthiness In Testimony.
• Chapter VIII.: Of the Comparative Mischief In the Event of Misdecision, to the Prejudice of the Plaintiff’s Or of the Defendant’s Side.
• Chapter IX.: Ulterior Safeguards Against the Inconveniencies Which May Present Themselves As Liable to Arise From the Abolition of the Exclusionary Rules.
• Chapter X.: Recapitulation.
• Conclusion.
• Note On the Belgic Code.

CHAPTER IV.

OF PREPARATIONS, ATTEMPTS, DECLARATIONS OF INTENTION, AND THRLATS, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUENCY.

§ 1.

Probative force of these circumstances considered in themselves.

I. Preparations;—viz. acts done in the intention of giving birth to the act considered as the principal fact, the fact said to be evidenced.

The event having actually taken place,—if the acts considered as preparations with regard to that event were such as properly come under that name, their probative force with reference to it is out of dispute, and they are assumed to be conclusive.

Of acts of this description, and those others that follow them under the same more extensive denomination of precedential acts, it may be of use at the outset to observe, that—although in point of time the acts themselves are essentially prior to the principal act or other fact—it will frequently happen, that the time when they are understood to be such, the time when their connexion with the principal fact is perceived, and even the time when they themselves come to light, is of later date.* That it should be so is the more natural, inasmuch as—if the design, being of a criminal or in other respects an obnoxious nature, is understood (or though it be but suspected)—a natural though not a necessary result is, that it should be frustrated: that the obnoxious event should be prevented from taking place.

It is in the penal law that acts of this description have been most frequently brought to notice: the purchasing, the collecting, the fashioning, the instruments of mischief; the repairing to the spot destined to be the scene of it.

Not that the facts which are apt to come in question in a non-penal cause are in their nature by any means destitute of this species of circumstantial evidence:—1. Preparations for the ceremony of interment have been brought forward as circumstantial evidence of expected, though more naturally of precedent, death; most commonly to prove a death which really took place: rarely, but not without example, to afford a fallacious proof of the death of a person at that time still in existence.* 2. Preparations for birth (i. e. for parturition) have been brought forward, sometimes to repel the charge or suspicion of the destruction of an illegitimate child by the mother, sometimes to afford proof of filiation, real or pretended. 3. Preparations for the marriage ceremony have been brought forward, sometimes as presumptive proof of the subsequent performance of the ceremony; sometimes as proof of an engagement to that effect, when satisfaction for the breach of it has been claimed.†

When the act projected is of a criminal nature, or where on any other account the discovery of the design threatens to be followed either by the frustration of it, or by any other inconvenience, either to the agent in question, or to any other person or persons, whose welfare is regarded by him with an eye of sympathy,—the natural state of things is, that the preparations should be endeavoured to be concealed. Understand, the preparations for bringing about the event which is particularly and for its own sake endeavoured to be brought about. But in this main and direct design, are involved by accident a various and almost indeterminate multitude of incidental and collateral ones: 1. Preparations for giving birth to productive or facilitating causes, of all kinds and degrees of propinquity or remoteness; for removing obstructions of all kinds from all quarters, and, among others, for obviating suspicion of the design itself; 2. Preparations as it were of the second order, for preventing discovery or suspicion of the preparations of the first order, viz. of those which are pointed most immediately to the accomplishment of the principal design; 3. To these preparations of the second order, imagination will easily add preparations of the third and fourth order, and so on. For it is evident, that to this chain of preparations—to the chain of eventual or intended causes, capable of being thus spun out of the stores of wayward industry—there can be no certain limit.

The measures thus taken for concealment or illusion—for involving facts in darkness, or covering them with false colours—will sometimes appear in the form of discourse, oral or written; sometimes in the shape of deportment,—physical acts at large. Whatever a man does, he does either by his own hands, by his own immediate operative powers, or by the hands of others. When he gives motion to the hands of others, it will generally be by words. So, if the hands or the lips of others be prevented from raising up obstructions to his designs: and, among the persons thus wrought upon—the persons prevented from becoming or continuing to act in the character of opponents, or converted into coadjutors—may be the intended sufferer himself.

On March 30th, 1781, at the assizes at Warwick, Captain Donnellan was convicted of murder, committed by poisoning Sir Theodosius Bonghton, in whose estates he had an interest in right of his wife. Under the present, as well as several succeeding heads, this case will be found pregnant with a variety of instructive illustrations. The determination was formed, that, in some way or other, the death of the young man should take place. To shut the door against suspicion, a notion was to be propagated, that his state of health was desperate; that death—speedy death—was certain; that his imprudence was continually heaping up causes upon causes.‡ The poison employed was distilled laurel water. The plant was to be found of course in the garden; and the murderer, not to have poison to buy, had provided himself with a still for the fabrication of it. He practised distillation frequently; and the room in which he operated was kept by him locked up.∥ The young man had a trifling complaint, for which he was taking medicine: the contents of one of the phials were to be got rid of, and the poison substituted. The phials, as they came in, used to be placed by him in an inner room, which he had been in the habit of locking up. He happened once to forget to take his medicine. “Why” (says Donnellan) “don’t you set it in your outer room? you would not then be so apt to forget it.”—The fatal advice was taken: and thus the necessary opportunity was prepared.

Preparations capable of a specific description are frequently and properly made the subject of a separate prohibition;—converted into distinct offences.

Where the connexion between any such preparatory act and its correspondent principal act is looked upon as sufficiently intimate—where the existence of the former is looked upon as sufficiently conclusive with regard to the existence of the latter—the vigilance of the legislator has not uncommonly exercised itself in laying hold of the preparatory act, and converting it, by his prohibition and punishment, into a separate offence; instead of taking the chance of the judge being able to treat it upon the footing of an evidentiary act, with reference to the corresponding principal act, and so bringing it within the punishment already attached to such principal act. Forgery, coining, but, above all, smuggling, afford so many instances of this line of legislative practice.* Under the head of Indirect Legislation, it has been brought to notice in another place.†

To an operation of this sort an objection presents itself, which, when it is not conclusive as a bar, may at any rate be useful as a caution. Such an operation, it may be said, will be either useless or mischievous: useless, if the effect of it be not to cause a man to be convicted of the offence in a case where otherwise he could not have been convicted; mischievous, in the opposite case. To the judge alone it belongs to be informed of the circumstances of each individual case; to the legislator not. If, in any given instance, to him who is thus informed of those circumstances, the evidentiary act, even with the addition of whatever other evidence the case may happen to furnish, does not appear to afford a sufficient ground for pronouncing the existence of the principal act,—the operation of the legislator—the obligation which he lays on the judge to act as if the ground were sufficient—is an act of injustice: it is productive of punishment where not due:—and, in the only remaining case, justice, at any rate, does not gain by it.

To this objection three answers may be applied.

1. In the first place: the act of the legislator—the act whereby the prohibition is issued, together with its punishment—is (as such) prior in its date to the occasion by which any act in disobedience of it can be produced. The subject has complete and effectual warning of it (for, if not, the answer, it must be confessed, does not apply:) the subject has complete warning of the prohibition put upon the newly-prohibited act, the formerly unprohibited and amply evidentiary act; and the abstaining from it is as much in his power as the abstaining from the principal act. If indeed the law—instead of being a law precedent to the offence, a law issued with the ordinary precedent notice—were a law subsequent to the offence—were, in a word, in the language of English jurisprudence, and after the fashion of every decision of jurisprudence in a new case, that monster of iniquity an ex post facto law;—then, indeed, the objection would be not only applicable, but unanswerable. But this is not supposed to be the case.

2. In the next place: the more effectually to secure innocence from the punishment levelled against guilt,—when an act that accidentally might now and then, in the character of an evidentiary act, have involved the agent in the punishment appertaining to the principal act,—when such an act is taken in hand by the legislator, and converted into a principal and independent offence, care ought to be, and commonly is, taken, to interweave in the description of the new-created offence, explanations, serving to limit it, and make sure of confining the application of the punishment to the case where the quondam evidentiary act, the supposed act of preparation, is really such—is really connected in the mind of the agent with the intention of committing the principal act.

3. In the third and last place: to the last-mentioned precaution may be, and not unfrequently is, added another,—viz. the reducing to a degree below that of the original or principal offence, the punishment annexed to the evidentiary, the new-created offence. Instances of this sort, in no inconsiderable number and variety, would probably be found in the laws of all countries relative to smuggling: they certainly are to be found in the British laws relative to that multifariously-diversified species of offence.

What has been said of preparations may apply, with little variation, to attempts; since—with reference to the ultimate object of intention, the ultimate result—all attempts, all motions previous to consummation, may be considered as preparations. By attempt, we understand action, carried beyond mere preparation, but falling short of execution of the ultimate design, in any part of it.

Between preparations and attempts, the distinction will (it is evident) be, in many cases, very indeterminate; and in different cases it will be widely different. In penal cases, it will be different according to the nature of the species of offence: in offences of the same species, it will be different again, according to the different circumstances in which, the different means by which, the individual offence in question is endeavoured to be committed. In case of homicide, for example,—according as the intended scene is laid on shipboard or by land; on the public way or in a private chamber; by drowning, fire-arms, or poison.

Fortunately, on the present occasion, these distinctions are as useless, as, on any occasion, they would be nice and intricate. So the ultimate design be evidenced, whether the act by which it is evidenced come under the denomination of an attempt, or only of an act of preparation, makes in this respect no difference.

II. Second example of circumstantial evidence decidedly precedent to the fact evidenced, Declarations of Intention:—of the intention to perform the act, the performance of which constitutes the principal fact, the fact evidenced, as above.

This species of circumstantial evidence bears a close analogy to the foregoing. Declarations of intention are expressions of intention purposely conveyed by words: by preparations, purposely or not, the intention is expressed by acts. The former belong to the head of personal evidence by discourse; the latter to that of personal evidence by deportment.

III. Threatening, or Menacement. A threat, an act of menacement, is a name given to a declaration of intention, in the case where the act declared to be intended is of the number of those of which it is supposed that the effects would be of a painful nature, with reference to the person to whom the declaration is addressed.

The reason for giving to a declaration of intention in this case a separate mention under a separate name, is, that it necessarily assumes a separate name in every system of penal law; inasmuch as, where the act declared to be intended is considered and treated as an offence, so is (or at any rate, in cases of a certain degree of importance, so ought to be) the declaration likewise.

A declaration to this effect may be expressed by any other signs as well as by words. Preparations, when open, may have for a collateral object this collateral result.

It matters not whether the threat be addressed immediately to the person on whose mind the unpleasant impression is intended (or declared to be intended) to be made,—or to any other person or persons, to the intent that, in one way or other, at some time or other, it may reach his notice. In a word, if it be in the shape of a discourse, oral or written, that the threat is meant to be conveyed, it matters not whether he be mentioned in the second person or the third.

For the reason given above, menacement is presumptive evidence of the act; i. e. that it was by or with the co-operation of the threatener that the act was done: but, for the reason also given above, the evidence is not of itself absolutely conclusive.

§ 2.

—Infirmative circumstances applicable.

I. Preparations and Attempts:* infirmative circumstances applicable to them.

These circumstances have been already considered in the character of criminative circumstances, evidentiary of the part supposed to have been taken by the supposed delinquent in the production of the noxious result.

Remain to be brought to view the several possible facts by which, in the character of infirmative facts, their probative force, in regard to the part supposed to have been taken by him, is capable of being diminished.

1. Intention different ab initio;† in which case, the result intended to be produced may have been either—1. altogether innoxious;‡ 2. less noxious than the result that actually took place; or, 3. equally or more noxious.∥

2. Intention overshot by the result. But in this case the disprobabilizing, the infirmative force of the infirmative fact, applies, not to the whole of the result, but only to the excess of the result produced over the result intended.*

3. The intention changed; viz. at a time posterior to the attempt or course of preparation, which, being proved, is exhibited in the character of a probabilizing circumstance, evidentiary (as against the supposed delinqent) of a participation in the production of the mischief. Here, as above, it is only on the supposition of the fresh design’s being less mischievous than the original one, that the possibility of the infirmative fact in question can have (or at least ought to have) any influence in practice.

4. Intention persisting, power failing: the result, though intended to be produced by the supposed delinquent, having in fact been produced, not by any act of his, but by other means.†

5. Among co-delinquents, the operation of the immediate criminal agent varying from the common design agreed on. This, a case frequently exemplified, includes the three first cases, being distinguished by no other circumstance than that of the number of the offenders.

Two or three engage in a plan of robbery: one of them, in prosecution of the design, commits a murder—on his part intentional, but not necessary to the design. Whether, in the intention of committing the greater crime, the accomplices in the lesser did or did not take part, is among the questions which (in a case of homicide on the occasion of a design of robbery) have been passed over as not worth notice by the unfeeling negligence of English judges.‡

In an early and rude state of society, the attention of those on whose will the fate of their fellow-creatures depends, has everywhere been almost exclusively pointed to physical facts, regardless of psychological ones. In the instance of the Chinese lawyers, Englishmen being the eventual or intended victims of it, this barbarity has attracted notice. But it, on this score, the first stone be due to the head of the Chinese lawyer, the second is, on a multitude of similar accounts, due to those of his learned brothers on the English bench.

II. Declarations or other expressions of intention: infirmative facts applicable.

To the criminative force of discourse expressive of an intention to commit an offence of the nature of that eventually committed, the supposable facts that apply in the character of infirmative considerations, are, in species and denomination, the same that have been seen applying in the case of preparations and attempts. But, forasmuch as words are apt to be uttered with less consideration than a course of preparation attended with labour and hazard is wont to be engaged and persevered in,—the probative force of the criminative circumstance seems in general less considerable, and at the same time the disprobative force of the infirmative consideration more considerable.

Being of the nature of confessorial evidence, viz. of that species of it which is extra-judicial and spontaneous, differing only in respect of relative time (the confessorial evidence being subsequent to the event, the evidence here in question antecedent,) it stands exposed to the disprobative force of the same infirmative considerations as confessorial evidence, which see.*

1. If the state of things expressed in the former instance by the words intention different ab initio be exemplified here, this is as much as to say, that the declarations that have place here (viz. the declarations of an intention to commit the crime that in fact was afterwards committed) were false. Supposing such to be the case; the inferences that may be drawn from them, and the infirmative considerations that apply to their probative force in the character of criminative circumstances, are the same as in the case of false extra-judicial and spontaneous confessorial evidence, or false responsion, which see.†

The supposition that these declarations are false, may, at first view, be apt to appear inconsistent with the supposition all along made; viz. that the crime in question has actually been committed, and that by whom committed (or rather, whether committed by the supposed delinquent) is the only remaining subject of inquiry. But, whether the crime actually committed, by the supposition, had or had not the supposed delinquent for a sharer in it,—the declarations made of an intention to commit a crime of that or a similar description may, at the time when made, have been false: and declarations of an intention to commit a crime are no less susceptible of being false, than declarations of the opposite cast, viz. declarations of an intention to abstain from the commission of that or a similar crime.

See Chapter VI., in which the various inducements by which a man may have been engaged to avow the commission of a crime, committed or not committed, are brought to view.

III. Threats:—infirmative considerations applicable.

To threaten to do a criminal act is to express an intention of committing it. The only difference is, that, when a man threatens to commit a crime, he not only expresses an intention of committing it, but declares this intention in the design that such his declaration should come to the knowledge, and be productive of fear in the mind, of some person in whose mind (if committed) he expects it would be productive of grief.

Of course, whatsoever infirmative considerations apply to declarations of intention taken at large (viz. declarations of an intention to commit the crime afterwards committed,) apply to threats; viz. to threats bearing relation to the same crime. But in the case of threats, these infirmative considerations seem in some instances to apply with superior disprobative force.

In the case of threats, very commonly the result really intended to be produced is,—not the mischief of the crime, nor, therefore, the crime itself,—but only the apprehension of it—the alarm, the terror naturally attendant on the expectation of it—on the contemplation of it in the character of a mischief likely to take place. If so, it is in this way that the state of things expressed by the words intention different ab initio is here verified.

The consideration that contributes to render the falsehood of the declaration in question in this case probable, and consequently to weaken the probative force of this circumstance in the character of a circumstantial evidence of the imputed delinquency, as against the supposed delinquent, is, the tendency of such a prediction to obstruct and frustrate its own accomplishment. By threatening a man, you put him upon his guard; and force him to have recourse to such means of protection, as the force of the law, or any extra-judicial powers which he may have at command, may be capable of affording to him.

Whatever may be the disprobative force with which, in the character of an infirmative fact, this tendency on the part of an antecedent threat may operate in opposition to its probative (viz. to its criminative) force,—the indication afforded by this infirmative consideration can never be peremptory and conclusive. By the testimony of experience, criminal threats are but too often, sooner or later, realized. To the intention of producing the terror, and nothing but the terror, succeeds, under favour of some special opportunity, or under the spur of some fresh provocation, the intention of producing the mischief; and (in pursuance of that intention) the mischievous act.

Note, that among the tendencies of menacement is that of operating at the same time as an evidence of an ulterior and distinguishable evidentiary fact; viz. operation of corresponding motives, existence of corresponding dispositions: permanent sources of the delinquency in question, in the instance of the supposed delinquent. As to this point, see further in an ensuing chapter.‡

A question which may occasionally arise is, how far mendacity on the part of a witness may be considered as probabilized by evidence proving him to have previously threatened to prejudice by his testimony a party on a side opposite to that on which he is called: in particular, in a criminal case, to have threatened to give such testimony as should render certain, or more or less probable, the conviction of the defendant.

In this supposed circumstantial evidence of mendacity may be seen a very frequent source of delusion, and a very useful instrument in the hands of delinquents and their advocates.

If the threat be conditional, next to nothing is proved by it: if absolute, still less. “If you do not so and so as I would wish, I will testify against you.” With superior and refined morality, it certainly is not consistent for a man thus to render dependent on a compliance with his personal wishes a service which he owes to justice. But does it follow that, because—out of court, and before you have been called upon for your testimony by the official ministers of justice—you reserve to yourself (or rather declare yourself to have reserved to yourself) the faculty of making or not making, as you think fit, the preliminary disclosure which may eventually lead to prosecution,—that therefore, if by the power of justice called upon for your testimony, you will perjure yourself?

A threat, however, of this kind—though, taken by itself, it operates with very little force in the way of presumptive evidence of mendacity—may be of considerable efficacy in corroboration of other circumstantial evidence to the same effect.

[* ]An example will be seen further on, in Donnellan’s case.

[* ]See Causes Célebres.

[† ]In the cases where the act has not been intended, or the event not expected, the preparations, being employed as instruments of deception, have been tinctured with that species of fraud which has, on a former occasion, been distinguished by the name of forgery of real evidence: a deception which, though the object of it is to disguise or suppress genuine evidence, becomes itself evidence when discovered, but evidence on the other side. Every species of deception, which, if successful, would have produced evidence on the side of the deceiver, operates as evidence against him in case of ill success.

[‡ ]Trial, pp. 18, 20.

[∥ ]Ib. p. 41.

[* ]On this principle, for the more effectual prevention of the crime which consists in the murder of an illegitimate child, a punishment has been imposed by English law upon the mere concealment of the birth—an act in itself nowise criminal, but considered in the light of evidence of a criminal intention.a

[† ]Dumont, Traités de Législation (Ed. 1802,) iii. 119. See above, Vol. I. p. 559.

[* ]In some cases the preparation and the attempt will be clearly distinguishable, but in others they will not. To the present purpose, at any rate, they may be brought together under one head: in respect to the infirmative facts capable of applying to them, there will not be found any difference.

[† ]In this case (it may be objected) the fact is not, properly speaking, an infirmative one. By pleading it, a man would not (as in the other cases that have been seen) admit—he would on the contrary deny, the existence of the inculpative fact in question. True: the preparation or attempt was not a preparation or attempt to produce exactly the same result that, in consequence, is understood to have taken place but it was, however, a preparation, an attempt, to do something; and a preparation or attempt of which the mischief in question has been the result. A man is killed by a bullet, shot out of a fowling-piece: whether the intention was to kill or not to kill, suppose the supposed delinquent were, a little before, seen putting a bullet into the fowling-piece, the preparation thus made would not be the less likely or the less fit to be considered in the light of an evidentary circumstance, probabilizing the intention of producing the mischievous result that actually took place.

[‡ ]See Donnellan’s case. Crime—murder, poisoning by water distilled from laurel leaves: criminative fact—preparation for distilling: infirmative supposition—it might have been for water from rose or other leaves; and such was the colour endeavoured to be given to it.

[∥ ]It is only in the character of an infirmative supposition applicable to a criminative evidentiary circumstance, that the state of things here supposed applies to the present purpose. What, on the supposition that the consummation of the act of delinquency is sufficiently proved by the help of ulterior evidence, may be the proper relative quantity of punishment (relation being had to the more ordinary case of an exact conformity between the criminal intention and the noxious result,) is a question that belongs to another place. On this point, see Introduction to Morals and Legislation. Vol. I. p. 35, et seq.

In the State Trials may be seen a trial for maiming, in which the defence was, that the maiming was unintentional, the design being manifestly to kill, for that manning would not answer the purpose. Conviction took place notwithstanding; it is difficult to say whether properly or not: the indictment being grounded on unwritten law, under which neither right nor wrong can have any determinate place. Under the statute law,—where the intention has been equally or more noxious than the result, there will be no difficulty in saying that the punishment allowed to be inflicted ought to be at least equally great, because, in resolving the mischief of the offence into its component elements (viz. into the mischief of the first order, viz. that which falls on the individual specially injured and his immediate connexions—and the mischief of the second order, viz. the alarm and the danger extending to the community,) it will be found that the aggregate mischief, and thence the demand for punishment, is not, in this anomalous and extraordinary case, inferior to what it is in the ordinary case. (See Dumont, and “Introduction,” &c. ut supra.)

[* ]Among a number of considerations, each of which would of itself be sufficient for the abolition of the savage practice of confounding homicide on the occasion of a duel in consequence of mutual consent, with homicide in the way of assassination, one is, that in general the result intended is not death, but only disablement; and the proof is, that no sooner has the disablement taken place, than hostility ceases.

[† ]See Bradford’s case, in a Treatise on Circumstantial Evidence, occasioned by Donnellan’s trial.a Bradford being an innkeeper, a traveller, seen to be well provided with money, put up at his house. The traveller was found weltering in his blood, Bradford in the room, armed as for the crime: he had, however, been frustrated by another traveller, with whom he had had no intercourse on the subject, and who on his deathbed confessed the fact.

[‡ ]Where a number of persons are engaged together in some unlawful pursuit, and one of them, on a sudden, in furtherance of their common purpose, commits a murder, they are all guilty of murder in the eye of the law. Fost, 351 to 354; 2 Hawk, P. C. cap. 29. §§ 8, 9.—Ed.

[* ]Vide infra. Chap. VI.

[† ]Chap. V. & VI.

[‡ ]Infra. Chap. XIII.

[* ]On this principle, for the more effectual prevention of the crime which consists in the murder of an illegitimate child, a punishment has been imposed by English law upon the mere concealment of the birth—an act in itself nowise criminal, but considered in the light of evidence of a criminal intention.a

[† ]See Bradford’s case, in a Treatise on Circumstantial Evidence, occasioned by Donnellan’s trial.a Bradford being an innkeeper, a traveller, seen to be well provided with money, put up at his house. The traveller was found weltering in his blood, Bradford in the room, armed as for the crime: he had, however, been frustrated by another traveller, with whom he had had no intercourse on the subject, and who on his deathbed confessed the fact.

[a ]Concealing or endeavouring to conceal the birth of a child, is made a misdemeanour by 9 Geo. IV. c. 31, § 14, and the offender is liable to be imprisoned for any term not exceeding two years.—Ed.

[a ]There were various tracts on this subject. One will be found editorially quoted (infra, p. 182,) which does not appear, however, to be that referred to by the author.—Ed.