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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 IX.

OF FEAR, IN SO FAR AS INDICATED BY PASSIVE DEPORTMENT, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUENCY.

A class of cases has already been brought to view,† in which the principal fact in question (viz. delinquency in this or that shape) cannot be probabilized by the evidentiary fact deposed to before the judge, without the intervention of some other fact or facts, constituting, together with the principal fact and the evidentiary fact, an evidential chain of a peculiar nature. The case where fear, howsoever supposed to be manifested, is the fact considered as evidentiary of delinquency, belongs to this class.

In a chain of this sort, the number of links will be different, according as it is to the perceptions of the judge himself, or to those of some other person by whom, in the character of a deposing witness, it is reported to the judge, that the fact here considered in the character of an evidentiary fact (viz. fear) presents itself.

First, suppose the judge himself the person to whose senses the fear (i. e. the appearance of fear) manifests itself. The links of the evidentiary chain will then succeed one another in the manner following, viz.:—

1. Link the first (group of evidentiary facts immediately presented to the senses of the judge,)—symptoms of fear. These, being objects of sense, must all of them be such as come under the description of physical facts.‡

2. Link the second,—the emotion of fear: a psychological supposed fact, inferred and supposed to be probabilized by these physical appearances;—fear, having for its supposed cause the expectation of the evil consequences (legal punishment included) considered as attached to the offence in question, by means of the ensuing links.

3. Link the third,—self-inculpative recollection: the memory of the supposed delinquent presenting to him the wrongful act as having been committed by him; viz. the physical act, positive or negative, accompanied with its criminative circumstances.

4. Link the fourth,—the criminal act itself, as above.

In an evidentiary chain of this sort, it has been already mentioned as the principal use of, and reason for, the operation of distinguishing link from link, that to each link belongs a distinct set of infirmative considerations, capable of operating in diminution of its probative force. The truth of that observation will be found exemplified in the present instance.

In this case, the chain of inference by which these four distinguishable links are connected stands thus:—1. From the physical appearances, regarded as symptoms of fear, the existence of that emotion is inferred; 2. From the supposed existence of that emotion, the existence of the criminative recollection above mentioned; 3. From the existence (viz. the present existence) of that recollection, the existence (viz. the past existence) of the criminative fact itself.

In relation to the second of the above three inferences, what must be observed is, that, for the purpose of forming the inference, the nature of the occasion is an object that must indispensably be called in; since, but for this, even supposing fear to be the emotion sufficiently established by the symptoms, this emotion might have had any other cause than the particular cause thus ascribed to it.

But for the occasion, the probative force of this circumstance would scarce amount to anything: add the occasion, and of itself it cannot but be very considerable. Infirmative considerations there are, as will be seen, to the disprobabilizing force of which it stands exposed; but of these—of all these taken together, the disprobablizing force (it will be seen) will not in general be very considerable.

The occasion here in question is the circumstance of the supposed delinquent’s being taxed with, or being supposed by himself to be suspected of, the particular act of delinquency in question: the existence of which occasion is always part of the case.

The second link is constituted, therefore, properly speaking, not of the fear alone, but of the fear combined with the occasion; since it is by the occasion that the existence and operation of those other possible causes, which will be brought to view in the character of infirmative possibilities, will be rendered improbable.

It is with this psychological sort of chain, as with a physical one: the chain is the weaker, the greater the number of links which enter into the composition of it. Why? Because each link brings with it is particular infirmative possibilities.

I. Inference forming the joint or connexion between link the first, viz. physical supposed symptoms of fear—and link the second, viz. the emotion of fear itself.

Infirmative possibilities applying to this joint:—

1. The cause of the appearances different: a purely physical fact, viz. bodily indisposition.

2. The cause of the appearances different: a psychological fact, indeed, and that an emotion, but a different emotion, such as grief or anger: grief or anger produced, for example, by the consideration of the wound inflicted on reputation, notwithstanding innocence.

II. Inference forming the connexion between link the second, viz. the existence of the emotion of fear—and link the third, viz. the existence of a criminative recollection, having for its subject the particular offence of which the supposed delinquent understands himself to be accused or suspected.

Infirmative possibilities applying to this inference:—

1. Recollection criminative indeed, but not in the way in question: recollection of an offence committed, but an offence different from that of which the supposed delinquent stands accused or suspected.

2. Recollection of an offence committed, not by the individual himself, but by some other individual connected with him by some tie of sympathy, and in whose instance the inquiry, it is apprehended, may be productive of conviction or suspicion.

3. Recollection of a fact by means of which, without any delinquency on his part, vexation has been, or appears likely to be, produced, in this or that shape, to himself,

4.—or to another person, or even a class of persons, more or less extensive, connected with him by some tie of sympathy.*

5. Apprehension of punishment, notwithstanding innocence. Of this infirmative probability the disprobative force will depend, it is evident, in a considerable degree, upon the general complexion and character of the system of procedure under which the inquiry is made.

6. Contemplation, prospect, of the vexation attached to prosecution, notwithstanding innocence: another circumstance the infirmative force of which will be seen to depend, more or less, on the system of procedure.

III. Inference forming the connexion between link the third, viz. supposed recollection of the criminative fact in question as committed by him—and link the fourth, viz. the actual commission of the act so supposed to be recollected.

Infirmative possibility:—

Falsity of the supposed self-criminative recollection.

The error here supposed will present itself as being of a nature not very apt to be realized. It is capable, however, of taking place, not only in case of mental derangement, but in the case of habitual delinquency; especially if the time of the supposed offence be very remote.

Apprehended and examined, though for a theft in which he had no part, an habitual thief will naturally enough exhibit symptoms of fear; and, confounding one of his exploits with another, may suppose himself to recollect a theft in which in truth he bore no part.

Such are the conceivable facts which, in the character of infirmative probabilities, apply to the criminative force of fear, when the symptoms of it apply themselves without the intervention of any other medium to the senses of the person by whom, in the character of judge, the conclusion is to be formed—the decision grounded on them formed and pronounced.

If, instead of the phenomena themselves being presented to his senses, what is presented to him is but a report made concerning them by some other person, by whom they are stated as having been presented to his senses,—the probative force of them stands, in that case, subject to the infirmative operation which attaches upon supposed unoriginal evidence, as compared with the original evidence itself: an infirmative circumstance of the same nature as that by which (according to a distinction already noticed) supposed real evidence reported, is distinguished from the real evidence itself; and of which a more detailed view will be given in the next succeeding Book.

To the additional joint added to the evidentiary chain by the presence of this fifth link, the following circumstances present themselves as applying in the character of infirmative possibilities:—

1. Possible untrustworthiness (whether in respect of moral or intellectual qualifications) on the part of the reporting witness; viz. the supposed precipient witness, speaking in the character of a deposing witness.

2. Impropriety of the shape in which his testimony was received or extracted.

If to the deciding judge this testimony be presented not in the oral but ready-written form,—3. Inaptitude, whether in respect of moral or intellectual qualifications, on the part of the receiving or extracting judge.

[† ]Chapter I.

[‡ ]The physical symptoms with which theemotion of fear has been known to be accompanied, and of which it may be considered as productive, may be thus enumerated. But amongst them are some which seem indicative of a degree of emotion so high as to be seldom, if ever, produced by the fear of an evil so distant, and so far from being certain, as the evil of a punishment which for its infliction depends on the hand of law.

In some of these instances, the individual is purely passive; no voluntary action, no exertion of the will being necessary, nor, in some of the instances, so much as competent, to the production of the physical symptom.

• 1. Blushing.
• 2. Paleness.
• 3. Trembling.
• 4. Fainting.

• 1. Sweating.
• 2. Involuntary evacuations.

• 1. Weeping.
• 2. Sighing.
• 3. Distortions of the countenance.
• 4. Sobbing.

• 1. Starting.
• 2. Pacing.

• 1. Exclamation.
• 2. Hesitation.
• 3. Stammering.
• 4. Faultering of the voice.

In some of the above instances the physical symptom is altogether independent of the will, it being altogether out of the power of the will to give birth to it. In other instances, though the production of it is not altogether out of the power of the will (and is accordingly effected without the existence of the emotion, in theatrical imitations,) it either takes place without the action of the will, or becomes the cause of the action of the will before it becomes the effect of it.

Of these symptoms, several will be seen to be common to the three emotions of fear, grief, and anger: some of them to result more naturally from either of those other emotions than from fear.

Physical phenomena of this kind, in so far as they point whether to fear or any other emotion as their psychological cause, may be distinguished by the common appellation of pathological evidence.

[*] “Infandum, Regina, jubes renovare dolorem.” Æneas was not upon his trial: but the emotion here was not fear, but grief.

• “—Quis talia fando
• “Temperet ā lacrymis?”