The Online Library of Liberty

A project of Liberty Fund, Inc.

• 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 X.

OF CLANDESTINITY, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUENCY.

Under this class of criminative circumstantial evidence, may be noted the following distinctions, viz.:—

1. Clandestinity, by concealment of the forbidden act or principal fact itself: for example, by doing in the dark what, but for the criminal design in question, would naturally have been done in the day; or choosing a spot which is supposed to be out of the view of everybody, for doing that which, but for the criminal design, would naturally have been done in a place open to observation.

2. Clandestinity by concealment of the person of the supposed delinquent while occupied in the act: as in the case of disguise.

3. Clandestinity by concealment of the part taken by the supposed delinquent in the commission of the act—in the production of the mischievous result: concealment, for example, of the purpose for which the act, viz. the physical act, is performed; as, in the case of murder by poison, the several acts by which the poison is prepared, or put into the hands of, or recommended to be taken by, the person intended to be poisoned.

4. Clandestinity, by eloignment or deception of witnesses to the act: exertions employed for removing this or that person from the scene of the intended unlawful action; under the supposed apprehension of his becoming (in relation to the forbidden act, its accompaniments, or consequences) a percipient, and thence eventually a deposing witness.

5. Clandestinity, by eloignment or concealment or destruction of criminative real evidence. Concerning the modifications of real evidence, see above Ch. III.

6. Forgery in relation to real evidence; viz. either by fabrication of exculpative appearances, or by alteration of inculpative into neutral or exculpative. The modifications of which it is susceptible correspond of course with those of real evidence.

Disguise of the person—a mode of clandestinity already brought to view—may be considered as a modification of forgery in relation to real evidence.

On the preceding occasion,* forgery in relation to real evidence was considered as capable of being practised by others, to the prejudice of the supposed delinquent: here, it is considered as practised by him. There, it was an infirmative, an exculpative probability: here, it is an inculpative fact.

Being a mode of deception, effected or attempted—a species of falsehood,—and, as such (no less than forgery in relation to written evidence) a modification of the crimen falsi of the Roman school—falsehood uttered by deportment,—it is in that respect closely allied to falsehood in the same intention uttered by discourse.

It may be moreover considered as being, in relation to real evidence, that which subornation is to personal. As in the one case, so in the other, objects of the class of things are thus pressed into the service of delinquency.

7. Opposition to search made for real evidence. See the next chapter.

Clandestinity, in what manner soever aimed at, may be considered as evidentiary of fear: and in that way, and that way alone (through the chain of inferences of which that emotion constitutes, as above, the principal link,) constituting a circumstantial evidence of delinquency in this or that shape, as explained by the occasion, as above.

In the case of fear, as above explained, the emotion itself, the psychological (and that a pathological) fact, constitutes but the second link in the evidentiary chain: the first link was constituted by the physical symptoms from which that psychological fact is inferred. In the case of clandestinity, under the several modifications as above enumerated, the positive voluntary physical acts by which the concealment is effected or endeavoured at, stand in the place of the involuntary appearances, the pathological symptoms, by which, in the other case, the emotion is betrayed.

1. Intention or design, differently, but equally, or more, culpable; 2. Intention or design less culpable; 3. Intention or design blameless, though requiring secrecy.* These are among the infirmative counter-probabilities which have just been seen, in the case of fear, applying to and weakening the probative and criminative force of that emotion: they may here be seen applying with equal force to the criminative force of clandestinity, in these its several shapes.

To the probative force of the inference, which, in the case of fear, binds together the two first links (viz. the aggregate of the physical or pathological symptoms, and the psychological emotion,) two infirmative counter-probabilities were seen applying themselves; viz. 1. The emotion different (for example, grief, or anger;) and 2. The cause of the physical symptoms, not psychological, but purely physical, viz. bodily indisposition.

In the case of clandestinity, in the place of those infirmative counter-probabilities stands another, characterizable by the word sport: the clandestinity having for its object and its cause, desire of producing sport, merriment, pastime; and not delinquency in any shape.†

At the end of a judicial investigation, it does not often happen that, in a case of clandestinity, the decision, as between sport and criminality, can be attended with much difficulty. But, for want of timely explanation, sport indiscreetly pursued has every now and then been itself an object of pursuit, when thus enveloped in the livery of guilt. A man who endeavours to pass for a ghost, risks the being taken for a thief, or something worse.‡

Forgery, in relation to real evidence, has an infirmative counter-probability peculiar to itself; viz. self-defence:—the individual innocent, exertions made to remove physical appearances, which (whether produced by nature or by human malice, viz. in the way of forgery) tend to fix a criminative imputation on him, in the circumstances in which he happens to be placed.

In the view of removing the imputation from himself, a murderer has been known secretly to deposit in the apparent possession of an innocent person the blood-stained instrument or garment, or some other such article, so circumstanced as to operate in the character of a source of criminative real evidence.* In this case, were it the lot of the innocent man to be observed in the night time retransferring the articles to the place from whence they came, it is to him, instead of the murderer, that the artifice might thus come to be imputed.†

[* ]Chap. III. § 5.

[* ]Love, as well as criminality, seeking clandestinity, servants’ lovers are apt to be taken for thieves: thieves, on their part, endeavour to pass for lovers.

[† ]See, once more, the story of Joseph and his brethren (supra, pp. 16, 17.)

[‡ ]In the vicinity of London, not many years ago, a ghost of this sort was shot dead, and the shooter tried for his life. [This was in 1804. The neighbourhood of Hammersmith had been alarmed by the appearance of a ghost, and Francis Smith, an exciseman, determined to shoot him. While he was on the watch, an unhappy miller passed by, and mistaking him, from the whiteness of his apparel, for the person who was playing the ghost, he unfortunately shot him dead. Smith was tried at the Old Bailey Sessions for murder, and the jury, in the first instance, found a verdict of manslaughter; upon which the judges said, that the facts proved amounted in law to murder, and sent the jury back to reconsider their verdict. They ultimately found Smith guilty of murder, and sentence of death was passed upon him by the recorder. This sentence was afterwards commuted to one year’s imprisonment, on the application of the Lord Chief-Baron to the Home-Office. (See Sessions Papers, and European Magazine.)—Ed.]

[* ]London pickpockets have been known at places of public amusement, to put the empty purses of the persons they have been robbing into the pockets of innocent persons near them, in order that they might accuse them of being the thieves, in case they themselves were taken into custody.—Ed.

[† ]See, again, the story of the Little Hunchback (p. 11, note*.) A body, supposed to be dead, is transferred from neighbour to neighbour, always with the utmost secrecy, under the apprehension of the suspicion that might be produced by it, in the event of a visit from the officers of justice.