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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 XI.

OF SUPPRESSION OR FABRICATION OF EVIDENCE, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUFNCY.

Supposing the whole mass of evidence actually suppressed, no such discussion (it is evident) can have place, as the inquiry concerning the probative force belonging to any part of it, or the circumstances, by the consideration of which, that force may be diminished.

But, under the head of these several modifications of criminative circumstantial evidence considered as deducible from active deportment, the attempt, successful or unsuccessful, is to be understood: for it is by the attempt, successful or unsuccessful, that the state of the mind is indicated; and it is from the state of the mind, that the criminative inference is (not less properly than naturally) deduced.

Preventing as it were the birth of evidence, by preventing from becoming witnesses (i. e. percipient witnesses) those by whom that character might otherwise have been acquired, is a criminative circumstance already brought to view, viz. under the head of clandestinity. The circumstances in view under the present head, are such as are capable of taking place at a more advanced stage of the business, viz. at any point within the length of time intervening between the moment in which the offence is considered as having been committed, and the moment at which the evidence produced in consequence of prosecution comes to be delivered. The mal-practice here in question is, therefore, any act whereby a person who, in relation to any criminative fact in question, has already been in the condition of a percipient witness, is prevented, or is endeavoured to be prevented, from appearing in the character of a deposing witness. But to draw, for the separation of the two objects, a clear line of distinction applicable to all cases, would be found impossible.

Under one or other of the two general heads here mentioned, the following specific modifications of circumstantial criminative evidence seem comprisable:—

1. Destruction, concealment, eloignment,* or falsification of any already existing source of real or written evidence, tending or supposed to tend to the inculpation of the supposed delinquent.

2. Interception of evidence, oral, real, or written. Measures taken to prevent the forthcomingness or delivery of the evidence of a person whose testimony, in the character of a deposing witness, would tend, as supposed, to the inculpation of the supposed delinquent; or the evidence deducible from the written document, or other thing capable of operating in the character of a source of written or real evidence: ex. gr. by obstacles thrown in the way of whatever antecedent operations may be necessary to the delivery of it.†

3. Subornation: causing a person to deliver false testimony, tending to the exculpation of the supposed delinquent.

4. Fabricating, or causing to be fabricated, evidence, real or written, tending to the exculpation of the supposed delinquent.—N.B. This is one out of several modifications of forgery in relation to real or written evidence.

As to infirmative counter-probabilities, considered as applicable to the criminative circumstances comprehended in this class,—the generally applicable ones already mentioned may perhaps be found, some of them, to be applicable upon occasion here, though in general with but a slight degree of probative (or rather disprobative) force.

The infirmative counter-probability peculiar to this class may be thus designated: apprehension of similar mal-practice on the other side.

The supposition that, in the character of an infirmative counter-probability opposed to any of the criminative circumstances in question, this consideration can operate with any such degree of disprobative force as to render it worth employing, involves the supposition of no ordinary degree of depravity on the part of the national character at the time.

English law affords a story, which, whether meant for truth or jest, may alike serve for exemplification. Pressed for payment on a forged bond, a man applies to his attorney. Client. “What is to be done?”—Attorney. “Forge a release.” On looking back, one cannot say exactly how far, it might not be impossible to find, even in English history, a period in which a story of this sort might have had a foundation in truth.

In some countries there have been said to exist a sort of houses of call, or register offices, for a sort of witnesses of all work, as in London for domestic servants and workmen in different lines, and in some parts of Italy for assassins.

Ireland, whether in jest or in earnest, was at one time noted for breeding a class of witnesses, known for trading ones by a symbol of their trade, straws sticking out of their shoes.

Under the Turkish government, it seems generally understood that the trade of testimony exists upon a footing at least as flourishing as that of any other branch of trade.

[* ]Eloignment, a word adopted from the French into English law language, is wanted, together with its conjugates cloigner, to eloign, in current language. For eloigning a man, the general stock of the language has no better expression than getting him out of the way.

Tampering—viz. with evidence—is a term applied as well to the endeavour to intercept oral testimony, with the consent of him who should have delivered it, as to the endeavour to procure by subornation false testimony, from one who otherwise would not (it is supposed) have delivered any testimony at all, or would not have delivered other testimony than what was true.

Labouring and embracing are words used in law language as synonymous with tampering, but only where the persons tampered with are considered as invested, or about to be invested, with the character of jurymen.

By tampering seems to be meant, an endcavour to cause the person in question to act, on the occasion in question, any part contrary to what is considered as being his duty with reference to the ends of justice. In this sense, it seems applicable with equal propriety to the situation of any person whose duty it is considered to be, in virtue of any function (permanent or occasional,) to render his services in any way conducive to these ends: to the situation consequently of judge (permanent judge,) juryman, or subordinate minister of justice; or in the case of any officer considered in the light of a public officer, prosecutor as well as witness.

As to the means whereby a man may be caused to swerve from the line of his duty, whether by eloigning him (getting him out of the way) or otherwise, they seem comprisable under three heads, viz. corruption, deception, and force: including under the notion of force, as well psychological (i. e. fear of evil) as physical.

[† ]For a list of these operations, see Scotch Reform (Vol. V.) Table I. Col. iii.