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• Rationale of Judicial Evidence.
• Book V.: —of Circumstantial Evidence.
• Chapter I.: Circumstantial Evidence, What—how Distinguished From Direct Evidence.
• Chapter II.: Of Probabilizing, Disprobabilizing, and Infirmative Facts—examples of Principal Facts, With the Corresponding Evidentiary Facts—improbability and Impossibility, How Distinguished From the Other Kinds of Circumstantial Evidence.
• Chapter III.: Of Real Evidence, Or Evidence From Things.
• Chapter IV.: Of Preparations, Attempts, Declarations of Intention, and Thrlats, Considered As Affording Evidence of Delinquency.
• Chapter V.: Of Non-responsion, and False, Or Evasive Responsion, Considered As Affording Evidence of Delinquency.
• Chapter VI.: Of Spontaneous * Self-inculpative Testimony, Considered As Affording Evidence of Delinquency.
• Chapter VII.: Of Confessorial and Otherwise Self-disserving Evidence, Extracted By Interrogation.
• Chapter VIII.: Of Confusion of Mind, Considered As Affording Evidence of Delinquency.
• Chapter IX.: Of Fear, In So Far As Indicated By Passive Deportment, Considered As Affording Evidence of Delinquency.
• Chapter X.: Of Clandestinity, Considered As Affording Evidence of Delinquency.
• Chapter XI.: Of Suppression Or Fabrication of Evidence, Considered As Affording Evidence of Delinqufncy.
• Chapter XII.: Of Avoidance of Justiciability, Considered As Affording Evidence of Delinquency.
• Chapter XIII.: Of the Situation of the Supposed Delinquent In Respect of Motives, Means, Disposition, Character, and Station In Life, Considered As Affording Evidence of Delinquency.
• Chapter XIV.: Posteriora Priorum—priora Posteriorum. Fact Indicated, a Prior Event; Evidentiary Fact, a Posterior Event In the Same Series: and E Converso.
• Chapter XV.: On the Probative Force of Circumstantial Evidence.
• Chapter XVI.: Of Improbability and Impossibility. *
• Chapter XVII.: Atrocity of an Alleged Offence, How Far a Ground of Incredibility. ‡
• Book VI: Of Makeshift Evidence.
• Chapter I.: Of Makeshift Evidence In General.
• Chapter II.: Of Extrajudicially Written Evidence.
• Chapter III.: Of Unoriginal Evidence In General.
• Chapter IV.: Of Supposed Oral Evidence Transmitted Through Oral, Or Hearsay Evidence.
• Chapter V.: Instructions Concerning the Probative Force of Extrajudicially Written and Hearsay Evidence. *
• Chapter VI.: Of Supposed Written Evidence, Transmitted Through Oral; Or Memoriter Evidence. *
• Chapter VII.: Of Supposed Oral Evidence, Transmitted Through Written; Or Minuted Evidence.
• Chapter VIII.: Of Supposed Written Evidence, Transmitted Through Written; Or Transcriptitious Evidence.
• Chapter IX.: Of Reported Real Evidence: I. E. Supposed Real Evidence, Transmitted Through Oral Judicial Testimony, Or Through Casually-written Evidence.
• Chapter X.: Of Evidence Transmitted Through an Indefinite Number of Media.
• Chapter XI.: What Ought, and What Ought Not, to Be Done, to Obviate the Danger of Misdecision On the Ground of Makeshift Evidence.
• Chapter XII.: Aberrations of English Law In Regard to Makeshift Evidence.
• Book VII.: Of the Authentication of Evidence.
• Chapter I.: Authentication, What. Connexion of This Subject With That of Preappointed Evidence.
• Chapter II.: Subject-matters of Authentication, What. Modes of Authentication In the Case of Real and of Oral Evidence.
• Chapter III.: Modes of Authentication In the Case of Written Evidence.
• Chapter IV.: Modes of Deauthentication In the Case of Written Evidence.
• Chapter V.: Distinction Between Provisional and Definitive Authentication. Rules For the Legislator and the Judge, Concerning the Authentication of Written Evidence.
• Chapter VI.: Aberrations of English Law In Regard to the Authentication of Written Evidence.
• Book VIII.: On the Cause of Exclusion of Evidence—the Technical System of Procedure.
• Chapter I.: Object of This Inquiry—its Connexion With the Subject of the Present Work.
• Chapter II.: Technical Or Fee-gathering, and Natural Or Domestic, Systems of Procedure, What?
• Chapter III.: Cause of the Vices of Technical Procedure, the Sinister Interest of the Judge.
• Chapter IV.: Particular Exemplifications of the Vices Introduced By the Fee-gathering Principle Into Technical Judicature.
• Chapter V.: List of the Devices Employed Under the Fee-gathering System, For Promoting the Ends of Established Judicature, At the Expense of the Ends of Justice. *
• Chapter VI.: First Device—exclusion of the Parties From the Presence of the Judge.
• Chapter VII.: Second Device—tribunals Out of Reach: Or, Swallowing Up the Inferior Courts.
• Chapter VIII.: Third Device—bandying the Cause From Court to Court.
• Chapter IX.: Fourth Device—blind Fixation of Times For the Oplrations of Procedure.
• Chapter X.: Fifth Device—sitting At Long Intervals.
• Chapter XI.: Sixth Device—motion Business.
• Chapter XII.: Seventh Device,—decision Without Thought; Or Mechanical Judicature.
• Chapter XIII.: Eighth Device—chicaneries About Notice.
• Chapter XIV.: Ninth Device—principll of Nullification.
• Chapter XV.: Tenth Device—mendacity-licence.
• Chapter XVI.: Eleventh Device—ready Written Pleadings.
• Chapter XVII.: Twelfth Device—principle of Jargon, Or Jargonization.
• Chapter XVIII.: Thirteenth Device—fiction.
• Chapter XIX.: Fourteenth Device—entanglement of Jurisdictions.
• Chapter XX.: Fifteenth Device—means of Securing Forthcomingness, Uselessly Divfrsified.
• Chapter XXI.: Sixteenth Device—creation of Needless and Useless Offices.
• Chapter XXII.: Seventeenth Device—sham Pecuniary Checks to Delay, Vexation, and Expense.
• Chapter XXIII.: Eighteenth Device—double-fountain Principle.
• Chapter XXIV.: Nineteenth Device—laudation of Jurisprudential Law.
• Chapter XXV.: Habitual Contempt Shown By Judges to the Authority of the Legislature.
• Chapter XXVI.: Opinion-trade.
• Chapter XXVII.: Extension of the Above Devices to Substantive Law, As Far As Applicable.
• Chapter XXVIII.: Remedies Suggested For the Above Evils.
• Chapter XXIX.: Apology For the Above Exposure.
• Book IX.: On Exclusion of Evidence.
• Part I.: On the Exclusionary System In General.
• Chapter I.: Exclusion of Evidence. Its Connexion With the Ends of Justice.
• Chapter II.: Disregard Shown to the Ends of Justice Under the Exclusionary System.
• Chapter III.: General View of the Mischiefs of the Exclusionary System.
• Chapter IV.: Dicta of Judges On the Exclusionary System.
• Chapter V.: Species of Exclusion.
• Part II.: View of the Cases In Which Exclusion of Evidence Is Proper.
• Chapter I.: General View of the Cases In Which Exclusion Is Proper.
• Chapter II.: Exclusion On the Ground of Vexation, In What Cases Proper.
• Chapter III.: Exclusion On the Ground of Expense, In What Cases Proper.
• Chapter IV.: Exclusion On the Ground of Delay, In What Cases Proper.
• Chapter V.: Exclusion of Irrelevant Evidence, Proper.
• Chapter VI.: Exclusion of the Evidence of a Catholic Priest, Respecting the Confessions Intrusted to Him, Proper.
• Chapter VII.: Remedies Succedaneous to the Exclusion of Evidence.
• Part III.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Ground of Danger of Deception. *
• Chapter I.: Cases Enumerated.
• Chapter II.: Danger of Deception, Not a Proper Ground For Exclusion of Evidence.
• Chapter III.: Impropriety of Exclusion On the Ground of Interest.
• Chapter IV.: Impropriety of Exclusion On the Ground of Improbity.
• Chapter V.: Impropriety of Exclusion On the Ground of Religious Opinions.
• Chapter VI.: Impropriety of Exclusion On the Ground of Mlntal Imbecility, and Particularly of Infancy and Superannuation.
• Chapter VII.: Of the Restoratives For Competency, Devised By English Lawyers.
• Part IV.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Ground of Vexation.
• Chapter I.: Vexation to Individuals Arising Solely Out of the Execution of the Laws, Not a Proper Ground of Exclusion.
• Chapter II.: Enumeration of the Sorts of Evidence Improperly Excluded On This Ground By English Law.
• Chapter III.: Impropriety of the Exclusion Put Upon Self-disserving Evidence By English Law.
• Chapter IV.: Inconsistencies of English Law In Regard to Self-disserving Evidence.
• Chapter V.: Examination of the Cases In Which English Law Exempts One Person From Giving Evidence Against Another.
• Part V.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Double Account of Vexation and Danger of Deception.
• Chapter I.: Impropriety of Excluding the Testimony of a Party to the Cause, For Or Against Himself.
• Chapter II.: Examination of the Course Pursued In Regard to the Plaintiff’s Testimony By English Law.
• Chapter III.: Examination of the Course Pursued In Regard to the Defendant’s Testimony By English Law.
• Chapter IV.: Impropriety of Excluding the Testimony of a Party to the Cause, For Or Against Another Party On the Same Side. Examination of the Course Pursued In This Respect By English Law.
• Chapter V.: Probable Origin of the Above Exclusionary Rules.
• Part VI.: Of Disguised Exclusions.
• Chapter I.: Exclusion of Evidence For Want of Multiplicity.
• Chapter II.: Exclusion By Limitation Put Upon the Number of Witnesses.
• Chapter III.: Exclusion Put By Blind Arrangements of Procedure Upon Indeterminate Portions of the Mass of Evidence.
• Chapter IV.: Exclusion By Rendering a Particular Species of Evidence Conclusive.
• Chapter V.: Of the Rule, That Evidence Is to Be Confined to the Points In Issue. ‡
• Chapter VI.: Of Negative Exclusions.
• Book X.: Instructions to Be Delivered From the Legislator to the Judge, For the Estimation of the Probative Force of Evidence.
• Chapter I.: Preliminary Observations.
• Chapter II.: Of Interest In General, Considered As a Ground of Untrustworthiness In Testimony.
• Chapter III.: Of Pecuniary Interest, Considered As a Ground of Untrustworthiness In Testimony. *
• Chapter IV.: Of Interest Derived From Social Connexions In General.
• Chapter V.: Of Interest Derived From Sexual Connexions.
• Chapter VI.: Of Interest Derived From Situation With Respect to the Cause Or Suit.
• Chapter VII.: Of Improbity, Considered As a Cause of Untrustworthiness In Testimony.
• Chapter VIII.: Of the Comparative Mischief In the Event of Misdecision, to the Prejudice of the Plaintiff’s Or of the Defendant’s Side.
• Chapter IX.: Ulterior Safeguards Against the Inconveniencies Which May Present Themselves As Liable to Arise From the Abolition of the Exclusionary Rules.
• Chapter X.: Recapitulation.
• Conclusion.
• Note On the Belgic Code.

CHAPTER XI.

WHAT OUGHT, AND WHAT OUGHT NOT, TO BE DONE, TO OBVIATE THE DANGER OF MISDECISION ON THE GROUND OF MAKESHIFT EVIDENCE.

§ 1.

Impropriety of excluding any kind of makeshift evidence.

It has been seen how various in specie, and how abundant probably in number, are the instances in which makeshift evidence of one description or another, is habitually received, and must ever be received, in judicature.

It has been seen, that a danger of deception, and consequent misdecision, is in every instance naturally attached to the reception of makeshift evidence.

It has been seen, on the other hand, how—by the influence of a principle common to human nature, and in particular to men in the situation occupied by men of law—the danger of deception has been generally exaggerated: or, what comes to the same thing, such arrangements have been produced as could not be justified on any other supposition than that of a degree of danger beyond the danger really existing in each case:

That this exaggerated estimate has had for its cause an assumption, which, upon a closer examination, turns out to be decidedly erroneous; viz. that the danger of deception on one part is as the danger of falsity on the other:

That the erroneousness of this assumption is proved by every instance in which the prevalence of it is exemplified in practice; for the exemplification of it in practice consists in the determination formed and executed in each instance—the determination not to pay any regard whatever to the lot of suspected evidence; to consider the falsehood of it as certain, instead of being more or less probable; in a word, to regard it as certain that in each instance the disposition of the judge is to overvalue it: whereas the truth is, that, by every instance in which an exclusion is thus put upon a lot of evidence, a fresh proof is given that the disposition of men in judicial situations is to undervalue it—to treat as if it were incapable of having any weight at all, that which is never altogether without weight, in any instance:

That, under the most natural and extensively prevalent constitution of the judicial establishment, in which the tribunal is composed of one or more permanent and official judges, nothing can be more extravagant or inconsistent than the distrust of which the practice of exclusion is the practical result—whether the object of the distrust be the judge himself by whom the exclusion is pronounced, or his colleagues and successors.

So prone am I to give too much credence to evidence of this description, that I give it no credence at all—that I determine to disregard it altogether. So prone am I to decide on insufficient evidence on the one side, that I decide without evidence, and against evidence, in favour of the opposite side.

So prone are all my colleagues—so prone will all my successors be, to give too much credence to such untrustworthy evidence, that I, who alone am proof against such delusions—I, in order to preserve them against the influence of it, am determined for their sake to pronounce a decision, which, in the character of a precedent, shall tie up their hands, and prevent them from throwing open the door to any such delusive evidence. I, who cannot trust myself with the faculty of pronouncing from the evidence—I, confident in that exclusive portion of sagacity in which I have none to share with me, have determined by this means (such is my prudence) to impose on my colleagues and successors, to the end of time, the obligation of deciding, in every such case, without and in despite of evidence.

The only instance in which this system of exclusion has any colour of rationality, is that in which (as in one of the many forms of English judicature) the tribunal is composed of a set of ephemeral, unofficial, unprofessional, unexperienced judges, placed under the tutelage, and in some respects under the controul, of one or more permanent, official, experienced judges. The jury, were they to be trusted with such evidence, would to a certainty be deceived with it; therefore they never shall be trusted with it.

Supposing the conception of unfitness on the part of the professional judge to be trusted with such evidence—supposing this conception just, in its application to himself and his experienced brethren,—the extension of the same imputation to this unexperienced class of judges, seems, at any rate, clear of the charge of inconsistency,—the absurdity is gross and palpable, but it is all of a piece.

On the other hand, suppose the professional sort of judge to be proof against the influence of this species of delusion,—suppose the danger of being deceived by it not universally extensive, but confined to the non-professional class of judges,—the system of exclusion, even in this limited application of it, is still precipitate and indefensible. You conclude they will be deceived by it: why so hasty in your conclusions? To know whether they have or have not been deceived by it, depends altogether upon yourself. What? can you not so much as stay to hear their verdict? Condemn men unheard?—condemn thus your fellow judges? Apply, where as yet there is no disease, a remedy, and a remedy worse than the disease?—a remedy worse than the disease, when, had you but patience to wait for the disease, a remedy is in your hands as safe and gentle as it is infallible?

Day after day, you annul the verdict of a jury without disguise, and send the cause to be tried by another jury, on the alleged ground of its being a verdict against evidence. Would it cost you anything to extend the allegation to cases of this description? or to add to the cases calling for a new trial, that of a verdict grounded on untrustworthy and deceptitious evidence?

Thus much for supposition and argument. In fact, however, no such distinction has had place: the manacles once constructed, unexperienced and experienced hands are alike confined by them. Peers have been not less ready, not to say eager, to impose it upon themselves, than yeomen and shopkeepers to submit to it. It is by such easy means, and at so cheap a price, that favour, when agreeable and convenient, is seated upon the throne of justice.

Nor is the application of the system of exclusion by any means confined to English judicature. Under the auspices of Roman jurisprudence, it is perhaps, upon the whole, still more extensive. What difference there is, seems to be to the advantage of the English system. On the ground of personal untrustworthiness at least, the causes of exclusion are, on the one hand, still more abundantly extensive than in the English system; on the other hand, the adherence to them seems to be much less steady. The range of cases that afford to the judge the faculty of putting an exclusion upon the witness, is still more extensive: but in each instance it is rather a power than an obligation. Is it his pleasure to put an exclusion upon a witness? He may find a warrant for it. Is it his pleasure not to exclude the witness? He may likewise, and equally, find a warrant for it. In the English system, the cases in which, by the advantage of the conflict between preceding decisions, judges have been at liberty to decide either way, are but too abundant; but, on the other hand, in the cases to which the conflict has not extended, the option and the licence fails: where the decision that stands nearest to the individual case in question is not opposed by any other, usage will not permit its being disregarded.

Adopt the principle of exclusion, in the character of a security against deception,—adopt it in any case whatsoever, there is not any point at which its application can with any consistency be made to cease. Exclude for this reason any one lot of evidence whatsoever, by the same reason you are alike bound to exclude all evidence, and along with it all justice.

Discard the principle of exclusion altogether (that is, in all cases where the exclusion of the lot of evidence in question would have the effect of excluding all evidence from that source—from the source from which the information issues,)—adopt in its stead the principle of universal admissibility,—you do no more than give extension to a principle, the innoxiousness of which, in every point to which the application of it has been extended, has been made manifest by undeviating experience. Among the cases to which it remains to be extended, there cannot be any in which the evidence can be so weak, but that cases in which, being equally weak, it is admitted notwithstanding, abound, and have ever abounded, and without objection or complaint, to an extent, the magnitude of which affords a conclusive proof of the safety with which this sort of liberty may be allowed.

The cases in which weak evidence is admitted—weak to every imaginable degree of weakness—are cases in which whatever danger may be attached to the admission is altogether out of the reach of remedy:—1. Weak circumstantial evidence: evidence, in the case of which, the connexion between the principal fact and the supposed evidentiary fact is loose and remote to any degree of remoteness. 2. Weak direct evidence; in the case where the veracity or correctness of the testimony is endangered by some cause of illusion, or by some sinister interest, which either in specie is not taken into the account, or, in the individual instance, is out of the reach of observation.

The inconveniences attached to the observance of the principle of exclusion are altogether out of the reach of all remedy, palliative as well as curative. The dangers attached to the principle of universal admissibility are not only in themselves inferior, in a prodigious degree, to the mischiefs attached to the principle of exclusion; but, whatsoever they may amount to, at the worst, arrangements are not wanting by which (in one way or other) defalcations may be made, reductions may be applied, and at any rate certain limits may be set, to the mischief; that is, to the number of the instances of misdecision capable of flowing from this source.

These arrangements, such as the nature of the subject has suggested, remain to be brought to view in this place.

§ 2.

Arrangements for indicating the amount of the danger.

Arrangements having for their object to lessen the danger of misdecision from the admission of makeshift and other weak evidence, may be distinguished, in the first place, into such as have for their more immediate object the making known the actual amount of the danger, and such as have for their more immediate object the lessening the amount of it.

Arrangements having for their immediate object the lessening the amount of it, may combat it in either of two ways: by lessening the frequency of it, or by lessening the amount of it when it happens.

Provisions having for their result the bringing to view, in the shape of experience, the utmost possible amount of the mischief from this source, that is, the limits of that amount, would, in a variety of ways, be of unquestionable use:—

1. They will constitute a sure, and the only sure, basis of legislation, in this as in so many other cases: facts, showing, by the light of experience, the effects of existing institutions.

2. They will form a natural, proper, and most satisfactory accompaniment of any such arrangements as might be thought fit to be made, on this part of the ground of evidence, tending to do away, or narrow, the application of the excluding system.

3. They will form, in the first instance, a visible security against any durable and considerable inconvenience, considered as derivable from any such defalcation from the authority of the excluding system. Should deception, and consequent misdecision, be suspected, justly or unjustly, or running in any increased stream, from any branch of the newly-opened and apprehended source,—measures may thereupon be taken for remedying the mischief, at any time, and at its earliest stage. They will also serve as an anodyne to any panic terrors that might otherwise be produced by the contemplation of an innovation, which to some eyes may be apt, in spite of the clearest deductions of reason and even experience, to appear a formidable one.

4. On the supposition of the adoption of the other proposed remedial arrangements,—they will serve to give a correct view—the only tolerably correct view that can be given, of the degree in which those arrangements prove conducive to their intended purpose.

If the different modifications of makeshift evidence, and the other sorts of evidence particularly liable to prove weak, and, by their weakness, deceptitious, have been here delineated and explained with sufficient clearness,—a judge, and the scribes his subordinates, will find no difficulty in committing to paper, as often as a lot of evidence appertaining to any of these heads presents itself, the head to which it appertains. In such or such a cause (naming it,) on the side of the plaintiff, the evidence was of this or that description (naming it,) and no other; on the side of the defendant, there was no evidence, or evidence of this or that description (naming it:) the decision was in favour of the plaintiff, or vice versâ.

Referring a lot of evidence to the species to which it appeared to belong, in a system of nomenclature thus constructed, would be a sort of exercise analogous to that scholastic exercise, which, in the language of grammatical instruction, is called parsing; referring each word to that one of the genera generalissima of grammar, the eight or nine parts of speech to which it appears to belong.

If the principle thus brought to view—the principle of methodical registration—were applied to every suit without exception, whether turning or not turning upon any suspicious species of evidence,—the sort of register thus produced would, in more ways than one, be conducive in no inconsiderable degree, to the ends of justice; as has been shown in treating of preappointed evidence.

From a register of this kind, the utmost possible amount of the mischief produced by the admission of evidence of a suspicious complexion, as thus distinguished—produced by the aggregate of suspicious evidence, of all sorts taken together, and of each sort in particular—may be indicated, with the utmost degree of exactness that can be desired: and, by comparing year with year, it will be seen whether it be in a stationary state, in a state of increase, or of decrease.

Suppose, for example, that, in a given year, the number of instances in which, on one side, no other evidence was exhibited than what belonged to one or another of the species of makeshift or other suspicious evidence, amounted to 100; and, of this number, in 50 instances the decision went in disfavour of the side on which the suspicious evidence was exhibited; in the 50 other instances, in favour of that side. This last number would represent the utmost possible amount, on one hand, of the mischief (as likewise, on the other hand, of the good) produced by the leaving or throwing open the door to evidence of this sort. Thus much as to the aggregate of the cases of all sorts put together: and the same instruction would be afforded in relation to each sort taken by itself.

Though the number of the instances in which benefit or mischief has been produced by the admission of evidence of this description, would thus be given; yet, to exhibit the aggregate quantum of the benefit on the one hand, and of the mischief on the other, would require another head or two, having for their object the indication of the quantum of benefit or mischief thus produced in each cause. To furnish this information would require a statement of the species of causes to which the individual cause belonged, in each instance (for example, penal or non-penal; and, if penal, relative to what species of offence:) and, in the cases where money or money’s worth was at stake, the amount of the value adjudged, or claimed and refused to be adjudged, to either side.

§ 3.

Arrangements for diminishing the amount of the danger.

We come now to the second class of remedial arrangements applicable to the diminution of the quantum of mischief from this source: arrangements aiming, in a direct way, at the diminution of the frequency of it.

I. Oath of credence or sincerity on the part of the exhibitant (the party by whom the article of makeshift evidence in question is exhibited:) his declaration to this effect, viz. that, according to his persuasion, the information presented by the article of evidence is, so far as concerns the purpose for which he presents it, correct and true: such declaration being given under the sanction of an oath (where that ceremony is in use) or solemn declaration, and subject to vivâ voce examination as to the grounds and causes of such persuasion.

The test of sincerity thus proposed is no other than what, on a former occasion, was brought to view in the number of those securities, the refusal of which, on any occasion whatsoever, was represented as an omission altogether repugnant to the ends of justice.* It nevertheless seemed to call for a separate mention here: partly, lest, on an occasion on which the use of it is so manifest, it should fail of presenting itself to view; partly, because, on the occasion of its application to the present purpose, it finds the case attended with material circumstances, such as do not apply to it in other cases—with circumstances which call for particular observation.

The cases in which the demand for this security is most imperative, are those in which the evidence presented immediately to the judge, presents itself, not in the oral, but in the written form; viz. casually-written evidence, and minuted evidence, with any number of media interposed. In the cases where the evidence presented immediately to the judge is in the oral form, whatever security for sincerity is afforded by judicial examination in the usual manner, is applied, of course, to the judicial witness. Where there is no extraneous witness, this security is wanting; and hence the demand for a supply to the deficiency, by the examination of the party by whom the evidence (in this case the written evidence) is exhibited.

No good reason could be given why this same security (whatever be the worth of it) should not be applied, in like manner, to those modifications of transmitted evidence, in the case of which the evidence immediately presented to the judge is presented in the oral form; viz. hearsay evidence, and memoriter evidence. Indeed, unless excluded by special appointment of law, the general liberty of examination, applying itself to self-regarding as well as extraneous evidence, would involve the points in question in the present case. In the way of distinction, all that can be said here is, that, where there is another person (viz. the extraneous witness) to whom the security applies, the demand for the application of the like security to the testimony of the party, in the character of a self-regarding witness, is not quite so great.

In a certain point of view, the security thus afforded may be apt to present itself as little worth. A party, who, having been dishonest enough to procure or fabricate an article of evidence of this sort, is dishonest enough to make use of it, will come prepared for all the consequences; nor will he shrink from perjury—from the scarce punishable perjury necessary to give this support to it. True: but, in regard to the written evidence of this kind, many a man who, either knowing or suspecting the falsity or incorrectness of it, would present it notwithstanding, and thus let it take its chance, would at the same time be far enough from supporting it at the peril of the punishment of detected, or though it were only the shame of suspected, perjury: and, in regard to the oral evidence of this kind, not only would many a man, notwithstanding any secret suspicion entertained by him of its falsity or incorrectness, suffer it, if proffered to take its chance as before; but there are also others, who, though not bold enough to support a tale of perjury with their own lips, would yet be dishonest enough to send other lips upon the adventure.

Thus, in two cases, both of them but too common, the arrangements proposed would afford considerable security. At present, under every system of technical procedure, this security is altogether wanting. When judges, on so many occasions as we have seen, not only apply no discouragement to insincerity, but apply encouragement and even compulsion to the production of mendacity—when judges, by the whole tenor of their practice, proclaim a predilection for insincerity,—can it with any reason be expected that suitors in general, or more particularly that their professional guides and agents, the worshippers of the judicial hierarchy, should in general be averse to it, or, when employable with safety, backward to employ it?

II. To this head also belongs another arrangement, all along proposed, for allowing to the judge (to be exercised at his discretion) the power of exacting from the party in whose favour the decision operates in the first instance, security for eventual reinstatement; for affording to the other party completely adequate satisfaction, in case, by the subsequent exhibition of more trustworthy evidence from the same original source, the decision having the makeshift evidence for its ground should turn out to be erroneous.

On those occasions, the description of the contingency was confined to the particular event bearing a special relation to the case then in contemplation—the event of the disproof of the makeshift evidence, by other evidence emanating from the same original source. But, from what source soever any such subsequently corrective evidence may have issued,—if it be true, and the decision called for by it be different from that which it finds in force, the practical inference (it is evident) is precisely the same.

III. In what cases, for the remedying of the injustice liable to be produced by the decision of one tribunal, liberty should be granted or obligation imposed of submitting the cause to the cognizance of another, is a question that belongs not to the present subject, nor to the present work.

In the extraordinary sort of case here in question, that of a decision grounded on such weak and comparatively untrustworthy evidence,—such reference might perhaps with propriety be prescribed or allowed of, in causes and circumstance in which, supposing the decision grounded on evidence of the ordinary stamp, such reference might not be eligible. Without attempting at present to decide upon the eligibility of any of these arrangements, the present indication will be confined to such remedies of this stamp as the nature of the case admits of. The question of their ultimate eligibility properly appertains to another subject, that of Procedure.

1. Liberty of appeal; i. e. of appealing to another tribunal, whose decision shall have for its ground this same body of evidence, without either addition or defalcation. The person by whom such appeal (if preferred at all) will be preferred, is of course a party, and that party to whose prejudice the decision, having the supposed insufficient evidence for its ground, is regarded by him as having operated.

2. Liberty of reference: power given to the judge to refer the decision, in a case of this sort, to another tribunal (naturally a superior tribunal,) if he thinks fit; with or without a provisional decision of his own annexed to it.

An arrangement of this description is superseded (it may be thought) by the one immediately preceding it: if appeal be allowed, the party in whose disfavour the decision (the decision grounded on the comparatively untrustworthy evidence) operates, will, if he considers it as being injurious to him, appeal of course: if he does not regard it as injurious to him, the case calling for a reference does not exist: so that, in each and every case, such reference is of no use.

To this it may be answered—1. The party, howsoever willing to appeal, may be disabled by the expense. 2. He may be deterred by the contemplation of the expense and vexation added together. 3. He may be deterred by the consideration of the weight and authority of the opinion declared by the court below. The court above—whether, if it had to frame a decision on the subject in the first instance, it would or would not have pronounced the same as that which has been pronounced below—may not regard the case as clear enough to warrant the reversing a decision already pronounced by a competent judicature.

Upon all these considerations taken together, it will probably appear that the demand for the power thus proposed to be given to the judge, would by no means be superseded by the power of appeal, if given to the party.

Moreover (in case of appeal,) argument, and consequently expense or vexation on the part of the appellant, and consequently on the part of the adversary, would be naturally (though, it should be added, not necessarily) allowed: whereas, in case of a reference made (as above) by one tribunal to another, such argument, with the vexation and expense attached to it, would not be so much in course.

3. Obligation of reference—obligation superadded to the power above proposed to be given to the judge: the reference in this case being or not being accompanied by a provisional decision previously pronounced by himself.

4. In the case of trial by jury,—power to the judge (the professional directing judge) to order a new trial, if dissatisfied with a verdict given on the ground of the suspicious evidence.

This arrangement takes for granted a previous charge, or direction from the judge, warning the jury against the error into which the order for a new trial assumes them to have fallen, by deciding in favour of the evidence, the insufficiency of which is thus assumed.

In English law (it has already been observed,) new trial granted, at the instance of a party, on the ground of the verdict’s being against evidence, is in familiar use: the extension would be a very slight one, were the power extended to the case of a verdict supposed to be grounded (as above) on insufficient evidence.

In the case of exclusion in general, the assumption is, that, if the jury were suffered to hear the evidence, they would be sure to be deceived by it. Experience, had judges but patience to consult her, would have superseded the demand for this rash suspicion. Will they be deceived by it? Stay and see. Should their decision prove erroneous, then, and not till then, it may be proper to take measures for obtaining a new one.

§ 4.

Importance of admitting makeshift in the character of indicative evidence.

The principle employed for fixing the conditions to be annexed to the admission of makeshift evidence, was this:—viz. not to admit any such comparatively untrustworthy evidence, where evidence to the same effect is to be had in a more trustworthy shape, from the same source.

But, supposing the sources of information to exist, will the information be always to be obtained from them in any such more trustworthy shape? He whose interest it is to bring forward the information in question, will it be in his power to draw it forth from those superior sources? This will depend upon the sagacity and industry displayed on this ground by the legislator—upon the care taken by him to afford the requisite powers to him (whosoever he be) whose inclination and will is in a state of preparation for this service.

The powers in question are those which are requisite to the investigation of a chain or thread of evidence—to the discovery of such evidence as the individual nature of the case may have happened to afford; and (when discovered) to the securing of its forthcomingness for the purposes of justice.

To take the arrangements adapted to this purpose, constitutes one of the principal functions of the system of procedure: to that subject accordingly they belong, and not to the subject of the present work. A brief intimation of the mode in which evidence, fit or unfit to constitute a ground for definitive decision, may be applied to this incidental purpose, may, not without reason, be expected to be found here.

By the term indicative evidence, I understand, not any particular and separate sort of evidence, such as circumstantial, direct, self-regarding, and so forth,—but evidence of any sort, considered as being productive of a particular effect; viz. the indicating or bringing to view the existence, certain or probable, of some other article of evidence. Indicative evidence is evidence of evidence.

To apply the distinction to the subject of makeshift evidence. If the rule above laid down in this behalf be a proper one, no article of makeshift evidence ought to be received (viz. into the list of the articles constituting on that side the ground for decision,) where evidence in a more trustworthy form is to be had from the same source: in other words, no such article of evidence ought to be received into the budget of documents designed by the judge for ultimate use. Be it so: but neither of this description, nor of any other conceivable description, can any sort or article of evidence be named, which it may not be proper to employ in the character of indicative evidence; viz. as a help to the discovery or procurement of other evidence, such as may be fit for ultimate use.

Thus, for example, in the instance of hearsay evidence—hearsay evidence of the second degree—supposed oral evidence transmitted through two media. Says deposing witness, in his examination before the judge,—Middleman, as he said to me, heard Percipiens say, that he was by, and saw what passed, when the defendant gave Occisus his death’s wound; and there ends his evidence. Now then, Middleman and Percipiens, are they both alive? The evidence is plainly unfit to be received into the budget for ultimate use: accordingly, neither would it in any case be so received into any such collection under English law.

But ought such information to be altogether unemployed and lost? By no means. Unfit, in the character of evidence, for ultimate use, it is not the less fit for serving in the character of indicative evidence. Let Percipiens be convened before the judge; and if, on being examined, he gives evasive answers, or says he knows nothing about the matter, let Middleman be convened to confront him;—that, by means of Middleman’s testimony, the misrecollections (if any) in the evidence of Percipiens, may, if possible, be corrected—the deficiencies in his recollection may, if possible, be supplied.

The same explanations are alike applicable to every other modification of makeshift evidence. Casually written evidence is indicative, with relation to the judicially extractable oral evidence of the writer of the script: transcriptural evidence is indicative, with relation to the original script: minuted evidence is so, with relation to the writer of the minute, as well as to any extrajudicial witness whose oral statement or narration is the subject of it: memoriter evidence is so, with relation to the script, the supposed tenor, purport, or effect of which, is thus reported: reported real evidence is so, with relation to the real evidence which is the subject of the report: and, in case of the interposition of divers media, transmitted evidence of any degree is indicative, of course, of all superior degrees of evidence from the same original source.

From the bare description of this species of evidence (that is, of the use thus to be made of any species of evidence,) it will be manifest beyond dispute that any system, which, for the purpose of any sort of cause, penal or non-penal, should (unless for the avoidance of preponderant delay, vexation, and expense) omit to make use of makeshift or other evidence in this way,—to make use of it to the utmost, for the purpose of discovering and obtaining such information as is to be had in a state fit for ultimate use,—is, to the amount of such omissions, defective, and unconducive to the ends of justice.

The proposition is not a purely hypothetical one. In the instance of the English system of procedure, exemplifications of it but too extensive may be observed. In the penal branch, in cases of felony unclergyable and clergyable,* or (to speak without nonsense) in first and second rate crimes, evidence, applicable or not to ultimate use, becomes by accident applicable to this use: it serves for the discovery, and thence perhaps for the obtainment, of evidence ultimately employable. This incidental use is extendible always by accident,—(for design (design, at least, directed to the legitimate ends of justice) is an incident still wanting to the jurisprudential system of English procedure.)—this use is extendible, to a certain degree, to inferior offences. But, to causes non-penal, carried on in any branch of the regular mode (whether it be the branch called the common-law branch, or the branch called the equity branch,) it is scarce in any case extendible. If the evidence which the witness whom you have summoned has it in his power to give, happens to be of that sort which is applicable to ultimate use, well and good,—it may be put to use accordingly: if not, the arrangements of procedure will not suffer it to be put to the other use: if you have no evidence from any other source, be the evidence obtainable from this source ever so conclusive, you lose your cause.

[* ]Vide supra, Vol. VI. p. 325.

[* ]By 7 & 8 G. IV. c. 28. § 6, the benefit of clergy with respect to persons convicted of felony is abolished.—Ed.