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 XVII.

ATROCITY OF AN ALLEGED OFFENCE, HOW FAR A GROUND OF INCREDIBILITY.‡

A crime is the more improbable (it has been said,) the more atrocious; and the practical inference is—

The more atrocious the offence, the greater the force of evidence requisite to prove it.

Thus nakedly given, as we see it frequently, without the requisite explanations, the observation is fitter for a play or a novel than for a treatise on jurisprudence. It proceeds from an indistinct view of the subject; and, in respect of the practical conclusions pointed at, it requires explanation, and distinctions to be made, to prevent it from being productive of pernicious errors in practice.

The imputation is an incredible one: Why? Because the man on whom it is cast bears so excellent a character:—such is the argument, in the case mentioned in a preceding chapter. The imputation is an incredible one: Why? Because he is a man:—such is the argument in the present case. This is what is called sentiment; and being so, is addressed, it is said, to the heart.

The depravity of human nature, and the dignity of human nature, are among the topics on which the practitioners in the arts of rhetoric (that is, of deception) have been fond of skirmishing: some on the one, others on the other, some on either or both, according to the purpose.

Of a man who brings forward this observation, the first question to be asked is, what he means by atrocity? But this is that sort of question which the sort of writer in question takes care not to put to himself; his readers would not thank him for it. Nothing is more troublesome to a man, than to be obliged to know what he means: no error so pernicious, that he would not rather adopt and give currency to, than load himself with so much trouble. To explain or to inquire what it is a man means, is metaphysics:—light is an object of hatred to all owls and to all thieves; definitions, under the name of metaphysics, to all rhetoricians. “I hate metaphysics,” exclaims Edmund Burke, somewhere: it was not without cause.

What then is, on this occasion, meant by atrocity?—the atrocity of the offence—no, not of the offence; that would not be sentimental enough:—of the crime. The word crime, being incurably indistinct and ambiguous, is the word to be employed upon all rhetorical occasions.

Does it mean the mischievousness of the offence? If it does, the proposition is in a great degree erroneous. Of all offences, by far the most mischievous are those which owe their birth, or tend to give birth, to civil war: treason, rebellion, sedition, and the like.—Suppose a civil war:—subject of dispute, title to the throne: question on which the title turns, legitimacy. The nation is equally divided: to-day, one half are traitors; to-morrow, the other half. Whichever half is, for the time being, on the unsuccessful side, and composed thereby of seditionists, rebels, traitors, it is on that side that you find the most disinterested, the most generous, the most heroical of mankind. If, then, by atrocity we mean mischievousness, the proposition, that an offence is the more improbable the more atrocious it is, is not true.

By atrocity is not unfrequently, perhaps most frequently, meant, neither more nor less than odiousness; meaning of course by odious, that which is so (no matter for what reason, no matter whether with or without reason) to the individual by whom the appellation is employed: in a word, that which is the object of his antipathy. To one set of men, the man who differs from them in some peculiarly tender point bearing relation to religion, is the most atrocious character; to another, or to the same, the man who has been drawn into some devious path by the impulse of the sexual appetite. The existence of the Christian, the Theist, the Atheist, I have thus heard successively denied by their respective abominators. In printed books I have observed doubts, next in force to denial, expressed with relation to the existence of those non-conformists who, in company with the wearers of linsey-woolsey, are consigned to destruction in the second edition of the Mosaic law. All passions are cunning; antipathy not less so than any other. On the part of the antipathist, the profession of incredulity is but a pretence and a disguise, to enable him with more decency to give vent to his rage, and with more effect to point the rage of others against the odious object. If the existence of these monsters is so incredible, the practical consequence should be, not to be so ready to devote to perdition this or that individual, under the notion of his being one of them. But the antipathist knows better than to be thus cheated of his prey. The existence of the monster is to be incredible, or next to incredible, for the purpose of rendering him proportionably odious. The odiousness, being the medium of proof for the demonstration of the improbability, is assumed of course; and, forasmuch as an attempt to prove supposes the necessity of proof, and assumption the non-necessity of proof, assumption of a fact is still more persuasive than the strongest proof of it. To screw up the odium against a man to the highest pitch, you begin with declaring his existence—the existence of so odious a character—next to impossible: having thus pointed against him the rage of the judge, you make use of that rage for disposing the judge to believe him guilty. While Louis XIV. was persecuting the Huguenots, it was an established maxim, a fiction of French law, that there were no such persons in existence.

By atrocity may, again, be meant cruelty—cruelty displayed in the commission of the offence. This sense is, of all, the most literal and proper sense. But, if the import given to the word atrocity is thus confined, the application of the maxim, the description of offences to which it is applicable, is proportionably confined. It is almost confined to personal injuries, homicide included. If wilful destruction by fire or water be included, it will be either because homicide, or the imminent danger of that mischief, and upon a large scale, are involved—or because, in its application to property, the amount of the mischief or danger is so indefinitely extensive.

Consider, then, the maxim in this sense. In the case of an offence characterized by cruelty, the seducing motives have to contend with the motive of humanity, sympathy, general benevolence (take which name you will,)—to contend with it in its character of a restraining, a tutelary motive.* The disposition of the individual in question being given (that is, the effective force with which it habitually acts upon his mind,)—the greater the degree of cruelty said to be displayed in the offence said to be committed, the greater the force with which, on that particular occasion, the motive in question must have opposed the perpetration of it.

But the principle of humanity is but one of several principles, which, on every such occasion, are acting upon the human mind, in the character of tutelary and restraining principles. There are, besides this, the three respective forces of the political, the moral or popular, and the religious sanctions. Neither is this by any means the most intense and uniform in its operation, of the four tutelary forces. It may or may not be stronger than the force of the religious sanction—it may or may not be stronger than that of the moral,—but it never can be accounted comparable in strength to that of the political sanction. Many men fear the wrath of Heaven; many men fear loss of character: but all men are acted upon, more or less, by the fear of the jail, the scourge, the gallows, the pillory, and so forth. In this point of view, whatever improbability is given to the supposed offence in question by those other restraining motives, the additional improbability given to it by the circumstance in question seems scarce worth taking into the account.

On the other hand stands a circumstance which must not be overlooked. The force of the political and moral sanctions acts upon a man in the character of restraining motives, only upon the supposition of discovery. The force of humanity has this in common with that of the religious sanction, that the supposition of discovery is not necessary to the application of it; and, besides the comparatively greater extent of its operation when contrasted with the religious sanction, the principle of humanity (whatever may be the force with which it acts,) is surer to be present to the mind. The suffering, of which the injury meditated threatens to be productive, can scarcely fail to be present to the mind of the offender, especially where the pleasure of enmity—the pleasure expected from the suffering of the intended victim, constitutes the motive to the offence. This is what cannot fail to be in a man’s thoughts; whereas the fear of God may be altogether out of his thoughts.

But whatever may be the degree of cruelty displayed in the commission of the offence, or even on whatever other score it may appear psychologically improbable, a most material consideration is this. Supposing the imputation unfounded,—does the innocence of the defendant import, as of necessity, consciousness of such innocence (and consequently mendacity, criminative perjury) on the part of any person in the character of an accusing witness? If yes, the presumption operating in favour of the defendant from this source seems completely destroyed by the counter-presumption in favour of the witness. For (as there will be more occasions than one for observing) with the exception of the imaginary offences invented by superstition, there is no offence so improbable (because in practice so unfrequent) but that the offence of him who by criminative perjury seeks to fasten upon another the imputation of that offence, is still more so. Thus, if (for example) it be always improbable that murder should be compassed in any of the ordinary ways in which that crime is perpetrated,—it seems at least as much so, that it should (which it would be by a false accusation of that crime) be so by this hazardous expedient of calm and deliberate malignity.* Within the compass of the last and present century, the number of persons who have committed robberies has been many thousands; but there will scarce be found ten who have given false evidence of that or any other capital crime.

There remains, therefore, for the only case in which this maxim (whatever may be the force and value of it) can have any application, that in which the evidence operating in crimination of the defendant is purely of the circumstantial kind: unless it be worth while to add those sorts of offences (witchcraft, and so forth) which are not capable of being rendered probable by any quantity of testimonial evidence.

What degree of exculpative force may be proper to be given to the circumstance thus denominated, will rest for a judge to determine, upon a review of all the other circumstances belonging to the case.

The essential practical consideration—the essential warning, is this: not to think of employing it as the foundation for any inflexible rule, requiring as necessary to conviction, this or that particular dose of evidence: such as the testimony of two witnesses, the confession of the defendant, or, in a word, any other determinate mass of criminative evidence.

BOOK VI

OF MAKESHIFT EVIDENCE.

[‡ ]This has appeared to the Editor to be the most proper place for the present dissertation; which clearly belongs to the head of psychological improbability, though apparently not inended by the Author to serve as an illustration of the probative force of the species of evidence indicated by that term.

[* ]“Introduction to Morals and Legislation,” Chap. X. Motives, (Vol. I. p. 46.)

[* ]An exception is to be made respecting those times when the contagion of some extraordinary fanaticism has given to certain accusations, well or ill founded, the colour of virtue—at least, has indisposed the people against the ordinary expedients for sitting out their truth; and when the end to be compassed by their taking effect is looked upon to be of such importance, as to sanctify almost any means. Such were the times of epidemical perjury and Titus Oates.