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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 IX.

FOURTH DEVICE—BLIND FIXATION OF TIMES FOR THE OPLRATIONS OF PROCEDURE.

The parties once met in the presence of the judge,—in nine instances out of ten, the cause would receive its decision upon the spot; and, execution excepted (or not excepted,) nothing would remain to do in it at any other time.

Yet, circumstances there are, and in no inconsiderable abundance, by any one of which a demand may be created for a quantity of time to which no just limits can be set by general rules.

In any of these cases, whatever at the conclusion of that first meeting remains to be done, the properest time for doing it will be settled of course: settled by the judge, on the joint consideration of the quantity of business which thus remains to be done—the point of time at which it can be done—the convenience of the parties on both sides in that cause—and the convenience of the court, that is, of other parties, who, in other causes, have their several and equal claims upon the disposable portion of the judges’ time.

Thus necessary is it, on the occasion of each cause, that, in respect of fixation of times, the conduct of the judge should be governed by considerations peculiar to that individual cause.

In the way of general regulation (with here and there an exception too inconsiderable and too obvious to be worth particularizing,) fixation of days, of times and intervals, is plainly repugnant to the ends of justice. Fix what day you will, the chances against its being the proper day will be as infinity to one. On each individual occasion, the interval thus blindly allotted will either be too long, involving factitious and needless delay, or not long enough, insomuch that in the course of it either the business cannot be done at all, or cannot be properly done.

1. Under the technical system, neither party being present, exigencies and convenience of all sorts being in all shapes alike uncared for and unknown, discriminative fixation is impossible: the one device forms thus a reason for the other device—the one abuse forms a cover for the other abuse.

The fixation is not so inflexible, as not to have admitted diversities of time corresponding to diversities in place.

Jurisprudence, English jurisprudence, has a geography of its own. In England there are two places, town and country. Town is the spot in which the four courts are situated: reckoning from that place as from the terminus à quo, all places in the country are at the same distance. As the term is one day, so the country is one place. But, forasmuch as there are two places, town and country, so there are two sorts of causes, town causes and country causes. Accordingly, when for a given operation a certain number of days are allowed in a town cause, for the same operation an additional number of days are allowed in a country cause: one and the same additional number in every country cause.

If, as hath been said, the branches of true science are connected, those of sham science are so too. Jurisprudential geography and jurisprudential chronology throw light upon each other.

Regularity and good order are the images presented, and doubtless meant to be presented, by these fixations.

Whatever is according to rule, or reducible to rule, is regular. But, the quantity of the pillage being given, whatever be the degree of regularity, the party plundered is not much the better for it: still less, if the object and effect of the regularity have been to give birth or increase to the quantity of the pillage.

Every order is good order, in the eyes of him who profits by it.

Motions for setting aside proceedings on the ground of irregularity, form no inconsiderable part of the business of the courts. The irregularity is sometimes improbity, sometimes honest departure from regularity, as above delineated.*

Uses to Judge and Co.—

Use 1. Making business.

In each case, whatever be the length of time thus blindly fixed, it will almost always be either too long or too short: longer than necessary, or too short to admit that to be done (or at least properly done) which is required to be done.

If too long, then come the advantages from delay: of which under the next head. If too short, then comes an application for more time. No application but by motion; and no motion without fees: fees to the advocate for making it, or being supposed to have made it; fees to the attorney for preparing it; fees to judicial officers for preparing and registering the result.

The application is either opposable or unopposable. If unopposable, then the application is a sham application, and the fees for making it so much money obtained on false pretences:† moreover, so much more delay, sold thus by the partnership to every dishonest suitor who will pay the price for it. If opposable, and opposed, then comes so much more business: a cause within a cause—a motion cause within a regular cause.

Opposed or no,—if opposable, the application must have its evidence to support it, and warrant the judge in complying with it. This evidence is not received but in the shape of affidavit evidence, bringing with it its fees: fees to the attorney, for manufacturing: fees to judicial officers, for receiving and registering it.‡

Use 2. Affording ease to the judge. Fixation with eyes open, would have consumed time and trouble. To regard the ends of justice—to consult the convenience of the suitors—to attend to the allegations and discussions pro and con, in relation to that convenience,—are irksome operations, beneath the dignity of the court. By blind fixation, time, trouble, and dignity, are all saved.

Use 3. Affording materials for the system of mechanical judicature, or decision without thought; for which see Chapter XII.

Use 4. Making more and more rubbish, with the help of factitious and groundless diversification: thence uncognoscibility, uncertainty, and so forth, as before.

With blind fixations, the ingenuity or the blindness of the man of law has contrived to combine equally blind diversities. Though, from diversity in respect of length of distance, no diversity in respect of length of time allowed, is deduced; yet, from diversity as between court and court, all four in the same hall, correspondent diversities in respect of allowance of time have not been grudged.

As to the mischiefs to the suitor,—in a general view they have been stated already, under the preceding heads: in detail, they may so easily be read through the medium of the benefits derived to the law partnership from the same source, that a separate delineation may, it is supposed, be spared.

[* ]See Chap. XIV. Nullification.

[† ]See Chap. XI. Motion Business.

[‡ ]The principal cause, if tried, will or will not be tried upon evidence in a fit shape: but the shape in which the evidence for or against these applications is presented, is never any other than an unfit shape. The principal cause, if tried, would (suppose) have been tried upon good evidence; but it is prevented from being tried—prevented by the result of an application supported and opposed by bad evidence—by mendacity undetected,—undetcted because presented in that fallacious shape. Trial put off, upon affidavit (suppose) of the temporary absence of a material witness. The alleged material witness has no existence: in the meantime, a really existing material and necessary witness, on the other side, dies, or goes out of reach.