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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 VII.

OF SUPPOSED ORAL EVIDENCE, TRANSMITTED THROUGH WRITTEN; OR MINUTED EVIDENCE.

If the person by whom the minute is supposed to have been taken, be an official person, acting in virtue of his office,—and the discourse which he is committing to writing be the discourse of a person by whom, on the delivery of it, he is addressed in his official character,—such evidence is a species of preappointed evidence—preappointed official evidence: and, in a word, if the purpose for which, or occasion on which, the minute is thus made, be a judicial purpose or a judicial occasion, the discourse thus orally exhibited and minuted is neither more nor less than a mass of judicial testimony. The minutes taken of the deposition of a judicial witness, whether spontaneously exhibited, or extracted by interrogatories,—taken whether by the judge himself, or by a scribe of his in his presence,—belong to this head of evidence.

If the person by whom the minute is supposed to have been taken, be not an official person, this species of evidence is of a nature that presents itself as having been already included (or at least as capable of being included) under the denomination of casually written evidence.

If, in a memorandum or letter, mention be made of a supposed fact, that fact may as well consist of a discourse supposed to have been holden by another person, as of anything else. If mentioned as being holden by another person, it may be mentioned as being holden by him either at the very time of its being thus committed to writing (as in the case of a judicial deposition or examination, as above mentioned,) or at any preceding point of time, separated from that point of time by any distance.

In general, the judicially scrutinized testimony of any given person will, in all points taken together, be more trustworthy than the casually written evidence of the same person—a memorandum or letter written by him. Yet instances are not wanting in which casually written evidence will present a preponderant probability of standing the closest to the truth.

In the presence of Oculatus, a transaction takes place, of which, on that same day, he gives an account in a letter to a friend. Suppose Oculatus a man of probity, and either not exposed to the influence of any sinister interest, or too firm to be drawn aside by it; and suppose, at the same time, that either discernment or accident has rendered his account of it, not only correct as far as it goes, but complete; nothing can be more evident, than that such a letter will present a much more satisfactory account of the matter than could reasonably be expected from the judicial testimony of the same person, examined, though in the best mode, at a distance say of twenty or thirty years after the event.*

Cæteris paribus, the chance which an article of casually written evidence has of being superior in trustworthiness to the judicial testimony of the same person, will be in the direct ratio of the interval of time elapsed between the day of the event and the day of the examination.†

The length of time, as above, being given,—the advantage of the casually written evidence, in comparison with the judicial testimony, will be inversely as the apparent relative importance of the transaction, the importance which it possesses in his eyes. The real absolute importance will no otherwise contribute to strengthen in his mind the impression made by it, than in as far as its eventual importance happens to be apparent to him, and to be the same in the instance of that particular individual as it would be to an average individual in his place.

Nor, in ordinary instances at least, will the importance of the fact, any other than its relative importance with respect to the percipient witness himself (that is to say, its connexion, real or supposed, with his own happiness,) afford security for permanence and accuracy of recollection.

The state of the witness’s mind at the time is another circumstance by which the strength of the impression made by the transaction at the time, and thence the strength and accuracy of his recollection of it, cannot but be in a very considerable degree influenced. If, by business of a more interesting nature to himself, his attention be pointed another way,—especially if, by the urgency of it in point of time, his mind have been put into a hurry,—the impression made by the transaction in question may be slight, indistinct, and fleeting, and his recollection of it proportionably uncertain and confined; although, in other circumstances, the impression made by a transaction of that same nature might have been sufficiently strong, distinct, and permanent.

A still better, and in every case without exception a more trustworthy, lot of evidence, than can be constituted by judicial testimony alone (how well soever the examination be conducted,) is that which consists of the judicial testimony of the same person, with an article of casually written evidence of his inditing (a letter or memorandum of his penning) at the time (or, if after, the sooner after it the better) for his assistance; the script being at the same time produced, or, at the demand of either party, ready to be produced. Against incompleteness on either side, there is the security afforded by examination and cross-examination against mendacity and bias on one side, there is the security afforded by cross-examination; against simple incorrectness on either side, there is the security afforded by the fortunate script, the fortunate letter or memorandum, the article of casually written evidence.

This composite sort of evidence, when the written element happens to present itself, may be regarded as a sort of super-ordinary lot of evidence, still better than that which in general passes under the denomination of the best. But, eligible as it is when it is to be had, it would evidently be a vain arrangement to exact it in all cases, or even to place it upon the footing of regular and ordinary evidence; since the existence of it is merely fortuitous, depending altogether upon the free pleasure and accidental disposition, as well as literary endowments, of the witness. If it could be required by law, it would come under the notion of preappointed evidence.*

[* ]A witness would be allowed to refresh his memory by looking at such a letter, although the letter itself would not be allowed to be given in evidence, as proposed by the Author, below.—Ed.

[† ]Or, to speak more correctly, instead of the day of the examination, we should rather put the day on which the recollection of the witness came to be pointed to the subject, by the information that his testimony, in the judicial form, would be called for.

[* ]A mass of evidence of this description may be considered as constituting either one complex lot of evidence, or two simple ones emanating from the same source: whether it be to be spoken of under the one denomination or the other, is manifestly a mere question of words.