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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 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.

§ 1.

Of the situation of the supposed delinquent in respect of motives and means, considered as probabilizing or disprobabilizing delinquency.

Between these several objects the connexion is so intimate, that they can scarcely be spoken of, any of them, without reference to the rest. But, with regard to delinquency, the indications they will be seen to afford, are, with reference to one another (though all material) very various, and even discordant; being not uniformly inculpative, but in some respects exculpative—in others directly inculpative,—in others again inculpative, but not so much directly as indirectly, by serving to weaken the force of an exculpative circumstance: and, as such, not admitting any infirmative supposition.

The psychological object designated by the word motive, is, as it were, the basis of all the rest.

The existence of a motive, by which the supposed delinquent might have been led (it is supposed) to the commission of the offence in question, is a fact which, in criminal cases more especially, is very frequently made the subject of proof. Is there any use in doing so? In certain cases, no: and in those, I believe, it never is done: in other cases, yes: and in these, I believe, at the suggestion of common sense, it commonly is done. In what cases, and in what sense of the word motive, it is worth while and practicable to have recourse to evidence or argument for this purpose, seems very generally understood in practice.

Motive is a term applied to the indiscriminate designation of divers objects, which require to be distinguished.

It is applied to designate any desire, when considered as the cause of action: call this the interior or internal motive.

It is applied to designate any corporeal thing, or mass of things, considered as the object of any such desire: call the object by which such desire is considered as excited, or capable of being excited, the exterior or external motive.

Thus, when a hungry man knocks down a baker, for the purpose of stealing a loaf of bread,—hunger is the internal motive of this criminal act, a loaf of bread the external.

A mischievous event being supposed to have been produced, and Titius suspected of having been concerned in the production of it,—What could have been his motive? says a question, the pertinency of which will never be matter of dispute.

The following seem to be the circumstances to which it owes its pertinence:—

Every act which, in the force of any one or more of the tutelary sanctions, finds a source of restraint—every penal, every disreputable, in a religious community every irreligious, act—is on that account rendered more or less improbable, by the consideration of the penal or other evil consequences attached to it. Unless this restrictive force finds an impulsive force, and that stronger than itself, in opposition to it, the culpable act is not merely improbable, but, psychologically speaking,*impossible.

To ask, What, in this case, could have been the motive? is to ask, not what could have been the interior, but what could have been the exterior motive, and that adequate in point of force to the production of such an effect. Not the interior motive; because, without any exception worth noting to the present purpose, all sorts of desires are common to all human beings: but what could have been the exterior motive? In the situation in which the supposed delinquent appears to have been placed, where is the object to be found, which could excite a desire strong enough to give birth (notwithstanding the opposition made by the combined force of the several tutelary sanctions) to an offence of the nature of that which he is suspected of?

To go about to prove on the part of the supposed delinquent the existence of a desire, a feeling, a passion, which presents itself as capable of accounting for the commission of the crime, would be an enterprise frequently impracticable, and always useless. No crime that has not some species of desire for its cause; and, with an exception or two not worth dwelling upon, no human bosom that is not the seat, constantly or occasionally, of every modification of desire.

It is not the mere existence of the desire—the propensity or the relish for this or that source of pleasure, the aversion for this or that source of pain. If it were,—by the same rule that the supposed delinquent is guilty, so is every other human creature. It is the existence of some exterior object, of a nature to call into action this or that desire or propensity, and to infuse into it a degree of force capable of surmounting the joint force of those tutelary motives, by the influence of which men in general are restrained from giving the reins to criminal desire.

Under the denomination of the motive must be comprised, for the present purpose, not only the internal desire, but the contemplation of the exterior event, or state of things, which the desire looks to for its gratification—looks to as the cause which will bring within a man’s reach the good (whatever it be) which is the object of the desire. The existence of the motive in the former sense, is the psychological fact—in the latter, the physical fact. It is in the latter sense, and that alone, that the existence of a motive either requires proof, or is susceptible of it. In this case, the internal motive to the act—the criminal act—is the expectation that the good in question will be brought into a man’s possession by such criminal act. The existence of Titius is sufficient proof of Titius’s being acted upon, and that during the whole course of his life, by the love, the desire, of the matter of wealth. The man who, desiring to live, has no desire for the matter of wealth, exists only in the fancy, or rather in the language, of shallow declaimers: to desire to live, is to desire to eat; and to desire to eat, is to desire to possess things eatable.

What, then, is the matter of fact proved, under the name of the existence of a motive? It is either the actual excitation of this or that desire by this or that assignable cause; or else the existence of this or that object, in a state in which it will naturally, in the breast of the party in question, have had the effect of exciting this or that desire. Man in general is susceptible of enmity—the desire of witnessing pain on the part of the individual who is the object of it. Man in general is susceptible of sexual desire. No human bosom that does not harbour within itself the love, the desire, of the matter of wealth. Thus much is what everybody is sufficiently persuaded of: thus much is what nobody ever thinks of proving. But Clodius had become the object of enmity to Milo: in the bosom of Tarquinius the appetite of sexual desire had attached itself upon the idea of Lucretia with particular force: upon the death of Amerinus, property to a considerable amount was secured to Hæres; of that state of things Hæres could not be unconscious, and had been heard to speak of it with impatience. These are facts which admit of proof, and may well appear to call for it. But, in the case of the happening of the correspondent obnoxious event in question, and a suspicion pointing to Milo, Tarquinius, or Hæres, respectively, as the criminal author of that event,—to prove the existence of these respective facts, is to prove, on the part of these persons respectively, the existence of the appropriate motive.

Thus it is that the consideration of any object pointed to as capable of having operated, in the case in question, with an adequate degree of seductive force, acts in relation to the supposed offence, not so much in the character of a directly probabilizing consideration, as in that of a consideration tending to repel the force of improbability (psychological improbability) acting in the character and direction of a disprobabilizing circumstance. On no occasion (says the defendant) does man ever act without a motive. Admitted (replies the prosecutor:) but here, then, was your motive: such or such may have been the desire excited in your breast: thus or thus was it, or might it have been, gratified by the event, of which, from all the evidence taken together, your act, your criminal act, is concluded to have been the cause. Against this disprobabilizing circumstance—psychological improbability,—the existence of a motive, if proved, may have considerable weight: it may even destroy the force of the disprobabilizing circumstance altogether. Considered in itself, the criminative force of the circumstance consisting in the motive (consisting in this, viz. that the situation in which the supposed delinquent is, is such as subjects him to the action of the motive in question,) amounts to nothing. In the natural course of things, where there is any property, every child has something to gain by the death of a parent. But, upon the death of a father, no one is ever led by any such consideration to look to an act of parricide, in the first instance, as the most probable cause of the death.

Not being properly a criminative circumstance, no counter-probabilities seem applicable to it in the character of infirmative considerations.

The following cases may serve as instances where, in the way above explained, the motive (viz. the exterior motive) became, and with propriety, an object of consideration, in the character of a criminative circumstance.

Anno 1781.—Donnellan’s case at Warwick assizes. Offence, murder of his wife’s brother. Motive, prospect of succession to his property.

Anno 1803.—Fern’s case at Surrey assizes. Offence, incendiarism. Motive, profit by over-insurance.

Anno 1803.—Robert Wilson’s case at Edinburgh. Offence, murder of his wife. Motive, paving the way to a more agreeable connexion with another woman.

Anno 1753.—Mary Blandy’s case at the Oxford assizes. Offence, the murder of her father by a long course of poison. The property of the father was considerable: she was an only child; it would fall to her of course. But, where parricide is the offence, is it in the nature of money to constitute a seducing motive? At that rate, parricide, instead of being as rare as it is horrible, would be among the most frequent of offences. She was enamoured of the wretched Cranston, her seducer, and the existence of the fondest of parents presented itself as an obstacle to an union, which, had she known all, she would have known could not be legalized. What the force of steam is in the physical world, the force of love is in the psychological—capable, when under pressure, of opposing the strongest force. The existence of such pressure is among the most common of all family incidents; the attempt to surmount it by such flagitious means, happily among the most rare. But to bring this motive to view required no separate evidence. The same evidence which showed from what source she had received the poison, showed by what motive she had been led to administer it.

Theophrastus is accused of theft. Fortune, opulent; reputation, unspotted; disposition, generous. The object of small value. Delinquency assumed; what could have been his motive? It was a black-letter book; a cockleshell; a butterfly. Theophrastus was a collector.

Means—i. e. means of producing the mischievous effect in question—seem to come under consideration to much the same purpose as motives. The belief of the existence of whatever means are regarded as necessary to the production of the effect in question, being a condition precedent to the endeavour,—means may in this case be considered as coming under the denomination of motives: power being as necessary an article as desire, in the assemblage of productive causes.

By opportunity seems to be understood an assemblage of such articles, in the composition of the aggregate mass of means, as possess not a permanent, but only a transient existence.

§ 2.

Of the situation of the supposed delinquent in respect of disposition and character, considered as probabilizing or disprobabilizing delinquency.

Disposition is produced by motives.

A man is said to be of such or such a disposition, according as it is to the influence of the motives that belong to this or that class that he is considered as being more or less in subjection: reference being made to the degree of influence supposed to be exercised by these same motives over the minds of the generality of the class of persons with whose conduct his conduct is compared. If the motives of the self-regarding class are considered as predominant, a selfish disposition is ascribed to him: if motives of the social class, a disposition of the social or benevolent cast: if of the dissocial kind, a disposition of the dissocial or malevolent cast.*

The effect of disposition, supposing it in proof, may be either inculpative or exculpative. So far as it is of the virtuous cast, and thence the tendency of its operation exculpative, important as the consideration is, it belongs not to this place. The effect and use of it is, to be opposed to inculpative evidence of all sorts, and, on the ground of a modification of improbability (viz. psychological improbability,) to tend to discredit direct and positive evidence; or, in the character of an infirmative consideration, to diminish the probative force of the inferences drawn from the circumstantial part of the evidence.

So far as the disposition indicated is of the vicious cast, exhibiting a more than ordinary degree of force on the part either of the self-regarding or dissocial motives,—it will generally, though not uniformly, afford inferences tending to probabilize the delinquency of the supposed delinquent, in respect of the offence in question, whatever it may be. In general, however, it admits not of proof on purpose. To take disposition for the subject of express inquiry, would be to try one cause, or perhaps a swarm of causes, under the name and on the occasion of another.

But, not unfrequently, indication of disposition, depravity of disposition, comes in of course, along with other and more directly apposite evidence; and when it does, it is naturally impressive; and, if sufficiently proved, it is scarcely to be wished that it should be otherwise than impressive.

As to infirmative suppositions, they are, here also, plainly out of the question: reasons the same as above.

Character is sometimes used as synonymous to disposition itself; but, more commonly, for the opinion supposed to be entertained concerning the disposition of the individual in question, by such persons as have had more or less opportunity of becoming acquainted with the indications given of it.†

Character is accordingly, on occasions of this sort, the word almost exclusively in use: disposition very seldom: the distinction is scarcely an object of notice.

For the consideration of character (so far as there is any difference) there is evidently still less room, in general, than for that of disposition, for the purpose of probabilizing the act of delinquency in question, on the part of the supposed delinquent.

Cases, however, are not altogether wanting, in which not only the question of dispesition, as indicated by this or that article in the general mass of evidence collected for other purposes, but even the question of character, as distinguished from disposition, may, in a criminative view, present a claim to notice.

Offences having ill-will for their motive—having ill-will for their psychological cause,—seem to be those, in respect of which, in a criminative view, the question of character is most apt to be material. In the case of an offence of this description, take the following examples:—

1. Offence, personal injury; the author uncertain: the character of the supposed delinquent, is it such as to point to him rather than to others?

2. Quarrel mutual; the supposed delinquent a party: the transaction more or less involved in obscurity:—considering the adverse party on the one hand, and the supposed delinquent on the other,—which, in respect of his character, seems most likely to have been in the wrong, or likely to have been most in the wrong?

§ 3.

Difficulties attendant on the admission of character evidence.

In an abstract point of view, it appears obvious and indisputable, that, on the question between delinquency and non-delinquency, considerable light may be expected to be thrown by the consideration of previous character. But, when the occasion calls for applying this general notion to practice, difficulties of no small moment will be seen to arise: some of them such as seem scarce capable of receiving solution but in the Gordian style.

1. Character favourable: tendency of the evidence, exculpative: fact indicated, non-delinquency. Bond of connexion between the evidentiary fact and the fact indicated, improbability of the psychological kind: improbability that a man bearing such a character should have soiled it by such an offence: that a man in whose instance the preponderance of the social motives over the dissocial and self-regarding has been so decided and confirmed, should, in the individual instance in question, have given way to the impulse of the seductive motives.

Whether the character be general or special, in this case the danger of prejudice to justice does not present itself as by any means considerable enough to indicate the propriety of excluding the evidence in any case. 1. Circumstantial evidence so loosely connected with the fact in dispute, is not likely to prevail against a mass of appropriate evidence, whether direct or circumstantial, or both together, to an amount sufficient for conviction. 2. In the case of general bad disposition, and its natural consequence, bad character, it will in general not be easy to obtain testimonials of good character from persons possessing a character of sufficient apparent trustworthiness to present a prospect of material probative force.

Nor would it be safe to put an exclusion upon evidence of this nature: inasmuch as, in case of an inculpative conspiracy, or even an untoward combination of circumstances, it may be the only sort of evidence by which it may be in the power of the purest and most exalted probity to defend itself. In all such cases, general character, it being on the favourable side, is pertinent: nor does it lie open to the objection which we shall see applying to it if employed for the purpose of painting character on the unfavourable side.

What seems the only objection, then, in this case, is referable to the head of vexation: vexation to the judge (which is vexation to the public through the medium of the judge,) by the time that may come to have been consumed in the exhibition of a species of evidence of which the probative force is so inconsiderable and inconclusive: vexation again to the judge, by the quantity of his power of attention that may come to have been expended upon a species of evidence comparatively irrelevant—a species of vexation which, when screwed up to a certain height, becomes dangerous even to the direct justice of the cause.

To the species of vexation attaching itself (as above) to the station of the judge, may be to be added in some cases another lot of vexation attaching itself to the station of witness; viz. to the witnesses from whom the testimony in question is to be extracted. On the other hand, vexation, in this instance, supposes unwillingness on the part of the witness, power to compel his testimony notwithstanding, and that power exercised. A witness who is on such an occasion unwilling to depose in a man’s favour, is not likely (it may be said) to be called upon by him for that purpose: hostility rather than sympathy is the affection in such a case to be expected. But it does not follow by any means, that because a man is unwilling to take upon him the loss of time, and perhaps expense, imposed upon him by his coming forward in the capacity of a witness, his reluctance and resentment should rise to such a height as to engage him to give an unfavourable testimony, in contradiction to his own conscience.

2. The case where the party calling for the evidence of character (the defendant’s character) is the demandant—the prosecutor,—the expected tendency of it consequently unfavourable—presents much greater difficulties.

1. Is it conceived in general terms?—no specification of facts, no instances of particular misconduct on any individual occasion specified?—A wide, and at the same time a safe, door is opened to calumny. The calumny is in its nature unpunishable. By the supposition, no particular fact is or can be specified, nothing which, for the purpose either of punishment or compensation, is capable of being disproved. What is delivered is mere matter of opinion; and that an opinion which, by the power of the law itself, a man is compelled to give.

2. Is it conceived in particular terms? particular facts stated?—Still either the door is left open to calumny, or fresh difficulties present themselves. Neither on this nor on any other occasion ought a man’s reputation to be liable to be destroyed or impaired by mere hearsay evidence. If a punishable or otherwise disreputable act is to be charged upon a man, on this occasion as on others, the charge ought to be made good by a satisfactory mass of evidence. On this as on any other occasion, he ought to be heard in his defence, with liberty to contest the charge, and produce exculpative evidence of all sorts, as in other cases. Under the name of giving evidence of character, what then does the operation here in question amount to? It is trying one cause for the purpose of another cause. Say rather, trying an indefinite number of causes; for it is not a single swallow that makes a summer—a single act a habit, a disposition, a sufficient ground for character, and that unfavourable. Causes thus in any number are tried—one cause, at least, is tried—as it were in the belly of another.

Considered in itself, the trial of any or every such incidental cause cannot, with any consistency, he regarded in the light of an inconvenience. Either the law is a bad one, and as such ought to be repealed, or obedience to it ought to be enforced. Either the law itself is a grievance, or the non-execution of it (bating the particular cases calling for pardon) is a grievance. Far from regret, it should be matter of satisfaction, that, by so cheap and unexceptionable a method, delinquency is brought to light.

But it is by the decision given in these incidental causes, that the decision to be given in the principal cause is to be influenced. On this supposition, perhaps the progress, at any rate the conclusion, of the principal cause, is kept back till after the conclusion of each such incidental cause.

Such are the difficulties, in the case where the imputation clothes itself in specific forms. Where, as above, it confines itself to generals, the difficulty, the ulterior difficulty, that remains to be brought to view, is different, but not less. Those persons on whose opinion or pretended opinion, without any check upon their mendacity, the fate of the defendant is more or less to depend, who are they? What sort of a character is theirs? Character in this case—the case of a witness, a mere witness—presents (it must be allowed,) or at least ought to present a different idea in this instance from what it did in the other, in that of the defendant. In the instance of the defendant,—the character, the disposition in question (it is, by the supposition, of the unfavourable cast,) admits of any modification, according to the nature of the imputed offence: in the case of the witness, it is confined to mendacity; or, if it extend to any other vicious propensity, it is only in so far as a propensity to mendacity may be inferred from it.

But if the character of any one witness ought to be suffered to be put in issue, so, by the same reason, ought that of every other. This being admitted, you put it in the power of the party—of that one of the parties whose interest it is to defeat law and justice—to bring upon the carpet a chain of character evidence without end;—an arithmetical repetend, or, by accident, even an arithmetical circulate.

§ 4.

Rules tending to the solution of the above difficulties.

In judicature, in legislation, difficulties (how great soever) should never be dissembled. From falsehood, from concealment, from imposture in any shape, justice never profits, never can fail of suffering, upon the whole.

The complete removal of the eventual inconveniences and correspondent difficulties being hopeless, all that remains is to present such considerations and expedients as appear calculated to reduce the embarrassment to its minimum.

On the one hand, to compel the admission of this sort of evidence in all cases, on both sides, and of both aspects, favourable and unfavourable—on the other hand, to compel the refusal of it in any case by an unbending rule,—are two extremes, both of which, though not in equal degree, threaten to be prejudicial to the interests of justice. It seems to be one of those cases in which a considerable latitude ought to be given to the discretion of the judge. To abuse it, will not, indeed, be out of his power; but neither is the danger of abuse so great, but that, if he is not fit to be trusted with this power, neither is he fit to be trusted with the other powers attached to his office.

If there were a case in which it would be proper to render the admission of evidence of this species compulsory, it would be the case where, the character in question being that of the defendant, the evidence is called for at his instance, and the punishment attached to the offence is loss of life. Why? Because, in case of an improper refusal, punishment undue, and at the same time irreparable, may be the consequence. But what is the measure indicated by this consideration? Not the making the admission of this species compulsory, even in this case, but the forbearing to employ a mode of punishment, which in this, as well as every other point of view, is adverse to the interests of justice—favourable to them in none.

The case in which the sort of circumstantial evidence afforded by moral character is of greatest importance, is that in which, the station of the party and the witness being combined in one, the cause affords no other evidence on that side.

The demand for this species of evidence is of course doubled, in the case where the same combination of stations takes place on both sides, and on each side is accompanied with the same absence of all other and less suspicious evidence.

In cases not penal, it will constitute a natural safeguard against perjury on the part of a plaintiff deposing in support of his own demand; supposing an habitual course of perjury to be capable of being otherwise engaged in as a source of livelihood. The taint which a few steps in this career would have the effect of imprinting on a man’s reputation, would not fail to oppose a powerful obstacle to his persevering in it with any adequate prospect of success.

The following seem to be the considerations by which the admission or rejection of this species of evidence ought to be determined:

1. The importance of the cause to the demandant’s side, in respect of the mischief of impunity.

2. The importance of the cause to the defendant’s side, in respect of the mischief of undue punishment.

3. The importance of the matter in dispute to each party respectively, in the case of a non-penal cause.

4. The delay threatened by the production of the evidence applied for.

5. The vexation apprehended to third persons, from the production (supposing it compulsory) of the evidence applied for.

6. The doubtfulness of the case, as it stands on the ground of the other more appropriate evidence.

The following rules and observations seem calculated to aid the judge in determining on the admission or rejection of this species of evidence:—

1. No evidence of character, good or bad—no speaking to character, favourably or unfavourably (i. e. at the instance either of the defendant or the demandant)—ought to be admitted, without power to the judge (if he thinks fit) to allow of time for inquiry into the character of the character-givers themselves. Why? For the same reason as in case of alibi evidence.* But the force of the reasons in this case are much less conclusive, the evidence of badness of character being in its nature so much less precise and satisfactory than the evidence of the existence or non-existence of such or such a person, at such or such a time, in such or such a place.

2. Evidence of bad character in crimination of the defendant, ought not to be admitted, unless in so far as it results from evidence admissible on other grounds; or unless, the fact of the offence being clear, the question is, between two persons suspected, which of them was the author? And even in these cases (that the quantity of vexation and delay may not be altogether boundless,) power should be left to the judge to limit the quantity or quality of the evidence, the number and choice of the witnesses, in declared consideration of the apprehended magnitude of these respective inconveniences.

3. If, at the instance of the defendant, evidence in favour of his character is admitted; so, at the instance of the other side, should counter-evidence operating in disfavour of his character be admitted, and time accordingly be allowed for it.†

4. Supposing the extraction of self-criminative evidence from the mouth of the defendant admitted, examination to this point will be as unexceptionable as to any other; and, so far as it extends, the vexation will be kept from reaching third persons; and the additional delay will be less, in the case of evidence extracted from this source, than of evidence extracted from any other.

5. Two considerations operate in diminution of the inconvenience from character-evidence at the instance, and consequently in favour, of a defendant. If the characters of his witnesses are obscure and unknown, the danger of their obtaining undue credence is but little; if suspected, still less:—if known, so as to present a claim to confidence, the inference thence deduced, though not good as to past innocence in respect of the individual offence charged, may be good in respect of the probability of future reformation, in consequence of the impression made by the trial and its attendant terrors.

6. But if, in consideration rather of the prospect of reformation than of the probability of innocence, acquittal be grounded on evidence of preceding good character, as above,—it ought not to extend beyond the amount of punishment under the name of punishment: it ought not to preclude the party injured from satisfaction at the expense of the defendant, if the force of the evidence, upon the whole, would be sufficient to entitle him to a decision in his favour, supposing the case a purely non-penal case.

7. If the appropriate evidence in the cause leans in favour of the defendant, the demand for this inappropriate evidence has no place.

8. Supposing a professional judge or judges, with a jury of occasional judges,—power might be given to the judge to suspend the admission of this character-evidence, so as not to admit it but in case of conviction, or indecision, on the ground of the appropriate evidence. Suppose a professional judge or judges, acting without a jury,—the demand for the conditional decision, as above, has no place. He simply suspends his definitive decision till the evidence of character has been got in.

Character-evidence has this in common with alibi evidence, that it is with the utmost facility and clearness distinguishable from every other species of evidence. What passes in relation to it is therefore, with proportionable facility, susceptible of registration:

1. Whose character it is—the demandant’s or the defendant’s.

2. At whose instance called for—that of the demandant, the defendant, or the judge.

3. When called for by demandant or defendant—whether ordered accordingly, or refused, by the judge.

4. If refused, on what ground:—whether delay, and to whose prejudice—that of demandant or defendant; or vexation, and to whom—whether, 1. to the court and the public in respect of time consumed, or 2. to the witness or witnesses, or 3. to the party repugnant, in respect of the expense.

5. If exhibited, whether prevalent or inoperative; i. e. whether the decision was in favour of that side or of the opposite.

6. Length of time consumed by the evidence of this description, in court, by the exhibition of it,—out of court, in waiting for it: ratio of this length of time to that of the length of time consumed in like manner upon the other evidence, the appropriate evidence in the cause.

7. Names, description, and number of the witnesses of whose testimony this evidence was composed: ratio of this number to that of the whole number of the witnesses whose testimony was exhibited in the course of the cause.

Such is the information by which the advantages and disadvantages attending the employment of this species of evidence would be placed in a distinct and satisfactory point of view. In this place, the statement of the heads occupies space; but, in each cause, the space as well as time consumed by the entry of the matters coming under these heads would be trifling indeed in comparison with the use.

Hitherto, the question regarding the admissibility of character-evidence has been considered only so far as regards the character of the defendant. But there still remains another question:—how far shall it be allowable to produce evidence for or against the character of a witness?

In this case, an imputation conveyed in general terms may, on certain conditions, without any preponderant inconvenience, be admitted. What then are these conditions?

1. In the first place, the imputation, if general, should be confined to that part of a man’s character which respects veracity. The witness, among his acquaintance, is regarded as an habitual liar. A habit of this sort may be ascribed to a man without specific proof: Why? Because a habit of this sort may be the result of a multitude of acts, none of them, perhaps, punishable in course of law, and too numerous to be proved.

2. But in this case it should be allowable for the party by whom the witness is produced, to call upon the impugning witness (viz. upon his cross-examination) to declare, if it be in his power, the particular instances in which this alleged disposition to mendacity became apparent.

3. In the next place, an imputation of this sort ought not to be admitted, unless it has been previously ascertained that there are three witnesses, or two at least, to maintain it. The considerations that suggest this limitation are as follows:—

Of evidence of this sort, if false, the falsity is not, in its nature, capable of being proved for the purpose of punishment. In case of that sort and degree of improbity on the part of the party in question, which prompts to subornation, this is of that sort of false evidence which is procurable with least risk, and therefore with least difficulty.

If an imputation of this sort has really attached upon a man’s character, it can scarce happen but that more witnesses than one may be found to speak to it. There seems, therefore, little danger that the condition in question, if annexed, should operate in exclusion of this species of evidence.

The objection above mentioned as presenting itself on the ground of facility of subornation, will thus be proportionably reduced in force. It is not only twice as difficult—indeed (as on close examination it would appear) more than twice as difficult—to suborn two false witnesses, as one; but, in case of their being procured, the chance of detecting the falsehood is much increased, in respect of the probability of disagreement and mutual treachery, as between individuals thus linked together by community in guilt.

Supposing the general habit of mendacity (viz. extrajudicial mendacity) ever so clearly established, the judge should not regard the inference from such general mendacity to mendacity in the individual case in question (viz. a judicial case,) as being by any means conclusive. On the ordinary occasions of life, a man has no such cogent motives to confine him to the path of truth, no such sanctions to bind him to it, as in this extraordinary one. Without a motive of some sort or other, a man will not encounter any risk; without a motive, and a motive of very considerable force, a man will not subject himself to such serious risks.

So far as specific acts are concerned, there are but two sorts of crime that present themselves as affording any inferences worth regarding in this view. These are—

1. Crimes of mendacity. At the head of these stands actual perjury: underneath, at a considerable distance, stand other crimes of extra-judicial mendacity, such as obtaining valuable things or services by false assertions, which, though made in direct terms, are made without oath: below these again, crimes in which the assertion is indirect and inexplicit, as in case of forgery at large, and those forgeries which have coin or money of any kind for their subject-matter.

2. The other class is composed of such other offences of the predatory cast (such as theft, highway robbery, and housebreaking,) as suppose what may be called a general prostration of character; though here, too, the inference from such an act will be very inconclusive, unless it appear connected with a habit of the same kind. But, in the case of all offences in the description of which mendacity is not involved, the inference will stand lower in the scale of strength by a very determinate and perceptible degree.

As to offences which neither are indicative of any such prostration of character, nor involve any breach of the duty of veracity—in the case of any such offences, the inference may be said to fail altogether. Offences produced by the irascible passions, and offences produced by the sexual appetite, may serve for examples.

In the case of a witness, evidence of good character can scarcely ever be admissible with propriety in the first instance; for no imputation is cast upon a man’s character in this case, as there is in that of the defendant: and, till a ground for a contrary opinion presents itself, the character of the witness, like that of every other man, ought to be presumed a good one. The endeavour to produce evidence of this sort would merely have the effect of producing useless delay, vexation, and expense.

But, in this same case of a witness, if evidence charging him with bad character has been produced on the adverse side, there seems no more reason for excluding evidence of good character in behalf of the same person, than has been seen already in the case of a defendant. On various scores, evidence of good character is liable to much less objection than evidence of bad character. When no evidence of bad character had been adduced, the demand for similar evidence of good character did not exist, but the demand now does exist, the case being reversed.

§ 5.

Of the station of the supposed delinquent, considered as probabilizing or disprobabilizing delinquency.

Station may be considered as indicative of the disposition, and thence of the character, of the class: viz. of the class to which the individual in question belongs: of the class composed of the individuals by whom the station in question is occupied.

To an inculpative purpose, this circumstance can scarcely be considered as having any application. In every political community, the lowest station is that which is occupied by the greatest number of the members.

It is only in the character of an exculpative circumstance, viz. on the ground of improbability—psychological improbability, as above,—that this circumstance is apt to operate with any considerable degree of probative force; and, thus applied, the force (i. e. the disprobative force in respect of the probability of the offence in question on the part of the supposed delinquent in question) with which it operates, is apt to be very considerable.*

The principal application of this species of evidence is that which obtains in a cause (especially a penal cause) where the matter in question is an article of property: more especially in cases where (as in ordinary thefts) the value of it is inconsiderable, in respect of the habitual pecuniary circumstances of the defendant, as indicated by the species of circumstantial evidence in question, viz. his station in life. A man in a station of life thus elevated, is it likely that his necessities should be so urgent as to drive him into a channel of supply at once so scanty and so hazardous?

Compared with moral character, the presumption afforded by this circumstance will, in general, be much more persuasive. Why? Because the matter of fact will, in general, be so much the more notorious, so much the less liable to be misrepresented by the force of bias. The presumptive evidence of habitual opulence afforded by office, visible property, education, habitual expenditure, will, in general, be much more incontestable than any which can be afforded of moral character by general expressions.

Singly (much more if in conjunction,) a certain degree of opulence and rank in life are enough to render scarcely credible on any evidence, a fact for which, in another station in respect of rank and opulence, slight evidence would be sufficient to gain credence. In any of the civilized nations of Europe, what evidence would be sufficient to convict a prince of the blood, or a minister of state, of having picked a man’s pocket of a dirty handkerchief, in a street, or in going into a playhouse?

One particular case there is, in which the force of the presumption derived from this source is not quite so great as, on general considerations, it might appear. This is the case of thefts committed on articles possessing a value of affection; and, in particular, thefts committed by amateurs on fancy articles—rare books, rare pictures, rare plants, shells, minerals, rare anything. A man who might be trusted with safety with a heap of untold gold, might not be capable of resisting the temptation presented by some choice desideratum, which, if to be sold, might be to be purchased for a few shillings.

The warning afforded by this observation is happily of no great use in practice. Thefts of special concupiscence are the offences of the rich: thefts of general concupiscence are the offences of the poor. Thefts of the former description are apt to experience a degree of indulgence, in which the principle of sympathy and antipathy will naturally find much to reprobate, but to which the principle of utility is by no means equally severe. The alarm in this case is extremely narrow: few but amateurs have anything to fear from the thefts of amateurs; and the mischief which the negligence of an amateur has to fear from the concupiscence of another is confined to simple theft: to the more formidable mischiefs of robbery, house-breaking, and murder, the apprehension does not extend. Hence it is that thefts of this description, in the few instances in which they are detected, experience commonly a degree of indulgence such as would not be extended to those which have the plea of necessity, or at least of indigence, for their excuse. Hence too it is that the indulgence extended to them is not productive of any such general mischief to society, as would be the result of the like indulgence, if extended with equal frequency to promiscuous thefts.

In some cases, the question in regard to opulence and rank in life enters into the essence of the cause: the probability and improbability of the main fact in dispute is in a manner governed by them; and in these cases, whether character be or be not expressly held up to view, it is in a manner impossible to it not to act, with more or less force, upon the mind of the judge.

Take the famous case of the Comte de Morangiès, in Linguet’s Plaidoyers. The Count—having occasion to borrow money to the amount of 300,000 livres—with evident, though not unusual imprudence, trusts an obscure female money-broker, and through her means a pretended money-lender, with bills of his, payable to order, to that amount and upwards. Of this large sum no more than 1,200 livres were really delivered. The pretended lender proves the delivery of the whole, by the testimony of three pretended eye-witnesses. The whole cause of the unfortunate man of quality rests upon circumstantial evidence: upon improbability, partly of the physical,* partly of the psychological kind. Station, in respect of rank and opulence, on both sides, but more especially (in respect of opulence) on the part of the pretended lender, became a necessary subject of inquiry. Traced out from the time of the pretended acquisition of this large fortune to the time of the disposition thus pretended to have been made of it, the whole history of her life and conversation concurred in representing the fact of her having possessed it, or anything like it, as scarce credible upon any testimony—absolutely incredible upon the strength of the testimony produced.

[* ]See below, the chapter (Chap. XVI.) on Improbability and Impossibility.

[* ]See Introduction to the Principles of Morals and Legislation, Vol. I. Where a multitude of acts of the same complexion are considered as following one another on the part of the same person (especially if in a series extending over a considerable length of time,) the word habit is applied to the case. From a single act, disposition is apt in some cases to be inferred: à fortiori, from habit.

[† ]Thus in English. In French, caractère seems scarcely ever to be employed to denote anything but the disposition itself: where the opinion entertained of it by others is meant to be brought to view, the word réputation is employed.

[* ]See farther on, Chap. XVI. § 11.

[† ]In English practice, the only counter-evidence which is allowed to be produced is such as may be extracted from the witnesses, who come to speak in favour of the prisoner’s character, in cross-examination.—Ed.

[* ]The distinction between general and special is applicable to the circumstance of station, as well as to disposition and character. Laying out of the case the general distinction between high and low, inferences of an inculpative nature seem to have been deduced from the consideration of this or that particular station or occupation by English law.

Thus, on the ground of supposed hard-heartedness, butchersa have been considered as being (in capital cases at least) excluded from the capacity of serving as jurymen: and, judging on this principle—supposing an act of homicide, or offence attended with bloodshed, committed, and, as between two men, the one a butcher, the other not, the question, which was the man? hanging in suspense—the answer would, if consistent, be, the butcher. It seems questionable, however, whether, upon consulting the annals of criminality, this presumption would be found to have any ground in fact. Against soldiers and sailors it might be supported, perhaps, with a closer appearance of reason; not to speak of surgeons; and even in these instances it seems questionable whether (numbers being taken into the account) the presumption would receive any support from experience.

In a case where, literally speaking, blood is supposed to have been shed, the presumption would, with better colour of reason, plead for the fixing upon the butcher in preference to the non-butcher for the delinquent, than for the exclusion of the butcher from the faculty of officiating in the character of the occasional sort of judge called a juryman. It seems altogether impossible to find a reason why, in a capital case more than in any other, a butcher should be more disposed than another man to do injustice; altogether easy to find a reason why a lawyer should. Lord Chancellor Jefferies and Judge Page, of hanging memory, were not butchers.

[* ]The money, having, according to the evidence on that side, been delivered, by being carried, by the same person, at thirteen different times, a certain distance within six hours,—could not, within that time, have been carried to that distance.

[* ]The distinction between general and special is applicable to the circumstance of station, as well as to disposition and character. Laying out of the case the general distinction between high and low, inferences of an inculpative nature seem to have been deduced from the consideration of this or that particular station or occupation by English law.

Thus, on the ground of supposed hard-heartedness, butchersa have been considered as being (in capital cases at least) excluded from the capacity of serving as jurymen: and, judging on this principle—supposing an act of homicide, or offence attended with bloodshed, committed, and, as between two men, the one a butcher, the other not, the question, which was the man? hanging in suspense—the answer would, if consistent, be, the butcher. It seems questionable, however, whether, upon consulting the annals of criminality, this presumption would be found to have any ground in fact. Against soldiers and sailors it might be supported, perhaps, with a closer appearance of reason; not to speak of surgeons; and even in these instances it seems questionable whether (numbers being taken into the account) the presumption would receive any support from experience.

In a case where, literally speaking, blood is supposed to have been shed, the presumption would, with better colour of reason, plead for the fixing upon the butcher in preference to the non-butcher for the delinquent, than for the exclusion of the butcher from the faculty of officiating in the character of the occasional sort of judge called a juryman. It seems altogether impossible to find a reason why, in a capital case more than in any other, a butcher should be more disposed than another man to do injustice; altogether easy to find a reason why a lawyer should. Lord Chancellor Jefferies and Judge Page, of hanging memory, were not butchers.

[a ]There is no legal objection to butchers serving on juries in capital cases in England, nor do the authorities afford reason to presume that there ever was any. In point of fact, butchers do serve in such cases. It is remarkable that the vulgar error on this subject extends to Scotland, where it is held as traditionary law that butchers cannot serve. Not being excepted by the qualification act, however, they are in the same situation as other citizens. It is usual for the court, probably for the purpose of obviating popular complaint, to excuse them for non-attendance.—Ed.