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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 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.*

Thus much as to the sinister interest operating on judges, under the existing system of procedure; and the ends pursued in consequence, the actual ends of judicature, not coinciding with, but opposite to, the ends of justice.

In the pursuit of these ends, a variety of devices have been employed. It may be of use to bring to view a list, or at least a sample, of these devices; the rather, since at the head of the list it will be necessary to place an instance of exclusion; a sweeping operation, in which evidence, and of the best and most necessary sort, is comprehended—evidence, which in most cases constitutes the most instructive part of the whole mass.

There will be a convenience in seeing the list of these engines of iniquity in one view. For enabling the reader to enter into the conception of them, a variety of expressions have been employed. Where one fails, another may answer the purpose. Not having been noticed, at least sufficiently noticed, they have never as yet been named.

1. Exclusion of the parties from the presence of the judge—parties not heard—decision given without hearing the parties—audience refused to suitors, either throughout the cause, or till the end of it.

2. Tribunals out of reach—the county courts swallowed up by the metropolitan courts.

3. Sittings interrupted, interrupted by long and fixed intervals: terms—circuits—days fixed for each step in a cause.

4. Operations without thought—decisions pronounced, judgments, rules, orders, delivered, by subordinate officers, without the privity of the judge. Judicature upon mechanical principles—principle of mechanical judicature.

5. Decision without evidence, or on evidence delivered in under a mendacity-licence—under a general licence given by the judge for the admission of false evidence.

6. Pleading, and more especially special pleading.

7. Principle of nullification—decision on grounds foreign to the merits—decision by quirks and quibbles.

8. Principle of fiction, in all its various branches—the habit of giving from the bench lies for reasons—of telling lies to entrap and fleece the parties—of encouraging parties to tell lies—of compelling parties to tell lies—of punishing parties for not telling lies—of encouraging jurors, and even compelling them by torture, to commit perjury.

9. Principle of jargon, jargonization, or technical language—perversion of language to the purpose of securing ignorance and misconception of the law, on the part of the people—setting and keeping up a cant or flash language, to serve the ends of judicature.

10. Double fountain principle.

11. Eulogization, puffing of jurisprudential law.

12. Multiplication of offices.

On the subject of the several articles comprised in this list, several observations, applicable to them in common, present themselves as having a claim to notice:—

1. There is not one of them that has any place in any of the courts above distinguished by the name of courts of natural procedure.

2. There is not one of them that has not place in the several courts above distinguished by the name of courts of technical procedure.

3. They consequently form so many characteristic differences, by which, on the one hand the courts of natural procedure, on the other hand the courts of technical procedure, may be distinguished from each other.

4. In proportion as the institution of them respectively is found to be repagnant to the several ends of justice, one, more, or all of them together (which, in the case of every one of these devices, will be found to be actually the case,) they will serve to bring to view and demonstrate the existence of so many virtues in the natural, so many vices in the technical system; characterizing the natural system by their absence, the technical system by their presence:—so many vices and (as being the result and product of great labour, carried on by generation after generation, from age to age, and under the impulse of a sinister interest created by the fee-gathering system) so many abuses.

5. They will form so many topics for the exercise of the ingenuity and eloquence of the advocates of the technical system—for the professional advocate, the official judge, the official lecturer or general institutionalist, the unofficial compiler or particular institutionalist. Under each head, a perpetual invitation is given to all these learned persons. In any court of natural procedure has it any place? Of the courts of technical procedure, is there any one in which it has not a place? Is it not more or less conducive to the mischief opposite at least to some one of the ends of justice,—delay, or expense, for example, or both? Can you make it appear that, to any other of the ends of justice, it is in any preponderant degree, or so much as in any degree, conducive? Here is so much delay from it; here is so much expense from it; here is so much vexation from it:—now, where is the use of it?

In this plain speech—not too plain for the plainest man to put or to comprehend—they will feel the spear of Ithuriel: touch them with it, one after another, the unclean spirit will stand confessed.

Of these, there are few which have not place in common, in every civilized country in which the technical system is established, that is, in every civilized country on the face of the globe.

Of the whole list of them, however, no inconsiderable part will be found peculiar, either in toto or in degree, to that modification of it which is established in England: some articles peculiar in toto; many more peculiar in respect of the degree in which they have place in this country, as compared with others.

Devices peculiar in toto, are—1. The distinction between law courts and equity courts; 2. The habit of eulogizing jurisprudential law at the expense of statutory, sham law at the expense of real.

Under the head of devices peculiar in degree, will be found, perhaps more, at any rate the following, viz.—

1. Tribunals out of reach.

2. Sittings at long and fixed intervals.

3. Principle and practice of nullification.

4. Jargon, under its several modifications.

5. Fiction, or mendacious reasons.

6. The use made of the double fountain principle.

7. Motion business; including the business of incidental motions, original motions, and motions of course.

[* ]For further remarks on the subject of this chapter, see “Justice and Codification Petitions” (Vol. V.) and “Delay and Complication Tables,” attached to the Letters on Scotch Reform in the same Volume.