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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 II.

TECHNICAL OR FEE-GATHERING, AND NATURAL OR DOMESTIC, SYSTEMS OF PROCEDURE, WHAT?

In consequence of the infirmities attached by nature to the infancy of society, the formation of the system of judicial procedure has nowhere (except here and there by bits and patches) been the work of the legislator; it has fallen everywhere to the share of the judge.

In consequence of the same infirmities, the judge received everywhere (or found means to make for himself,) in the shape of fees* extracted from the suitors, a retribution, necessary or unnecessary, for his trouble, and the use of his power—for the service rendered or supposed to be rendered to them by the exercise of it.

The mode in which the will of a legislator (acting as such) is expressed, is by rules; mostly general, and at any rate laid down beforehand: the sort of law thus produced is called statute law. Very different was the mode in which the will of judges was expressed—of judges acting as such, and, by the exercise of that will, developing the course of procedure, and collecting fees. No rules were laid down beforehand: as occasion called, what was thought right, or pretended to be thought right, upon each occasion, was done: and as to rules, it was left to suitors to collect or rather frame them for themselves as they could, from the observation of what had been done. Law produced in this mode of generation has been called common law; and sometimes jurisprudence, or jurisprudential law.

Rules which are laid down in determinate words, may (in so far as these words are well chosen—adapted to the habits and capacities of those for whose use they are intended,) be understood without art. Rules which, not being laid down in determinate words, can scarcely with propriety be said to exist, cannot be understood,—or rather (since, where nothing exists, there is nothing to understand) guessed at,—without art. The system constructed by such hands, and constructed or left to be constructed in such a mode, may accordingly be termed the technical system of procedure.†

When a man, empowered to pursue a public object, is by the same means empowered to pursue a personal one, it is not in human nature that this private object should be a matter of indifference to him. It will naturally and unavoidably exert an influence over the course taken by him in the pursuit of the public object. In consideration of this influence, the system here denominated the technical system may further be characterized by the name of the fee-gathering or fee-collecting system. The occasions of bringing it into view under this character will be but too numerous. The courts of justice in which the system or mode of procedure chalked out as above, and under such influence as above, is in force, may be termed, by one common appellation, courts of technical procedure. Everywhere they may be seen to be characterized by a common set of features.‡

Before states existed, at least in any of the forms now in existence in civilized nations, families existed. Justice is not less necessary to the existence of families than of states. The mode in which, in those domestic tribunals, created by nature at the instance of necessity, justice was administered, and, for that purpose, facts were inquired into, may for distinction’s sake be termed the natural or domestic mode of judicature.

It is among the characteristics of the natural or domestic mode of judicature, to be exercised (if not absolutely, at least comparatively speaking) without forms—without rules. A man judges, as Monsieur Jourdan talked prose, unconscious of any science displayed—of any art exercised. One of your two sons leaves his task undone, and tears his brother’s clothes: both brothers claim the same plaything: two of your servants dispute to whose place it belongs to do a given piece of work. You animadvert upon these delinquencies, you settle these disputes: it scarce occurs to you that the study in which you have been sitting to hear this is a tribunal, a court—your elbow-chair a bench—yourself a judge. Yet you could no more perform these several operations without performing the task of judicature,—without exercising the functions of a judge, without hearing evidence, without making inquiry,—than if the subject of inquiry had been the Hastings cause, the Douglas cause, or the Literary-property cause.

It is among the characteristics of technical procedure, all over the world, to abound in rules and formalities. In process of time—as occasion presented itself, and irresistible necessity urged inquiry—spite of all prejudices, a discovery was made, that, with little or no exception, these rules and formalities, instead of being necessary, were repugnant to the ends of justice: that an option was to be made between the sacrifice of these rules and formalities, and the sacrifice of certain portions of substantive law, necessary to the existence of the state. Accordingly, certain portions of the field of judicature were marked out, and a course prescribed for the appointment of judges, with authority to proceed and inquire, to hear and determine, as they would do in the bosom of their respective families, paying no sort of regard to any of these rules and formalities. For distinction’s sake, the courts thus constituted may be termed courts of natural procedure or judicature: of natural procedure restored, or (if, in any odd nooks of the field of judicature, discovery should in any instance be made of any little spot which happened to have escaped the fangs of the technical system) natural procedure preserved.

The character of the natural system of procedure (it may already be perceived) is little more than negative. Health is the absence of disease. Liberty, in its original sense, is the absence of coercion. Natural procedure is the absence of those rules and formalities of which technical procedure is composed. But for verse, prose would not have had a name: but for technical, natural procedure would not have had, would not have needed one.

In current nomenclature, the distinction nearest to a coincidence with that between technical procedure and natural, as here explained, is that between regular and summary; but the coincidence is far short of being complete. Thus far, it is true, they agree,—that, in comparison with all technical procedure, all natural is always summary. But technical procedure has its branches which are called summary, as well as its branches which are called regular: for designating that which is not technical, the word summary has therefore been unfitted. Moreover, summary means short: and wherever one course is shorter than another, it may, in comparison with that other, be termed summary. But, in a series of infinite length, the number of degrees is infinite: and in all that number there is no one that can have any exclusive pretension to the epithet of summary.

The final cause of this article of jurisprudential nomenclature, is not difficult to divine. The use of regularity is recognised by everybody: the term regular is eulogistic. Get people to believe that summary procedure is something opposite to regular procedure, you may prevail with them and accustom them to regard the more expeditious procedure with a jealous eye. In an underhand way, you may thus insinuate and get them to believe (what you durst not assert) that there is a sort of incompatibility between the superior dispatch observable in the summary mode, and the superior regularity observable in the regular (that is, in the technical) mode. The utility of dispatch—its title to be regarded as one of the ends of justice—is too plain to be denied: in the technical mode, as compared with the natural, the want of dispatch is also too plain to be denied. To reconcile men, as well as may be, to the repugnancy of the technical system in relation to this end of justice, you thus take the best chance that in so few words can be taken, for getting them to fancy, on the part of the natural course, a repugnancy to the direct and ultimate ends of justice: a conception, the exact reverse of which is the true one.

In every country (so I imagine it would be found,) men of law, unable to find the shadow of an argument, have trusted to the power of this prejudice, preserving a prudent or rather necessary silence. Blackstone, in the fertile soil of England, has been fortunate enough to find another and a still stronger prejudice, applicable to the same purpose. Summary procedure is a mode of procedure to be regarded with jealousy, and with such a degree of jealousy as shall prevent as much as possible the extension of it. With jealousy? Why? Because in summary procedure there is no jury. No jury?—and what then? Is the use of trial by jury to be regarded as an end, or only as a means? Taken altogether, are the ends of justice more completely fulfilled by regular procedure with its jury, than by summary procedure without a jury?—another inquiry in which no lawyer ever ventured to engage, and on which Blackstone knew better than to start. No: where prejudice reigns, everything is to be lost by inquiry, nothing to be gained: by prejudice the same business is done (when it is done) upon much easier terms.

But, in the very word summary, may be seen an indication which, if it does not of itself afford, at least points out the path to, a complete demonstration of the incongruity of that mode to which it stands opposed. What is a summary mode? It is a mode, in and by which an efficient decision is obtained, with a less quantity of delay, expense, and vexation, than that which is attached to the other mode, termed the regular. To the use, then, of the regular mode, a quantity of collateral inconvenience attaches, which does not attach upon the summary mode. From this single statement, admitting it to be true, follows a necessary consequence: viz. that,—unless under the summary there be some deficiency in respect of the security against misdecision, and that deficiency such that the mischief of it is of a magnitude to outweigh the advantage obtained by the defalcation from the mass of collateral inconvenience in the shape of delay, expense, and vexation,—the existence of the regular mode, be it what it will, is an enormous nuisance. Is the summary mode, then, attended with any such disadvantage? Is the regular mode attended with any such disadvantage? If so, in what particular respect? What are the arrangements which, being necessary to the giving the completest security that can be given against misdecision, are to be found in the regular, and not to be found in the summary, mode? The question is a conclusive one: no answer has ever been, none ever will be, given to it. All the wits of all the lawyers by whom civilized society is intested, would sink under the task.

[* ]Definition of a fee:—Money or money’s worth received at the expense of the suitors in a cause (all or any of them) on the occasion of a mass of writing written or supposed to be written, or other act done or supposed to be done, in the course or on the occasion of it.

[† ]The word technical is not unknown to jurisprudence. You may find it there in company with the word reasons. Technical is from the Greek, and scarce yet made English. If you have a mind to do it into English,—instead of it, put absurd: fear not the finding yourself mistaken in any one single instance. The mental endowment displayed in the manufacture of these reasons, is, in the same dialect, called astutia: to render this into English, say folly, or knavery, or both together: the connexion is closer than men are apt to imagine—closer everywhere, but nowhere perhaps so close as in jurisprudence. In Folly, Knavery sees one of her most useful instruments and best friends.

[‡ ]—Facies non omnibus una,

Nec diversa tamen—

Et documenta damus, quâ simus origine nati.