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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.

SIXTH DEVICE—MOTION BUSINESS.

The principal agent in motion business is the advocate. Except the principal hearing (called in jury causes the trial,) almost all business in which the advocate (as such) has, or is pretended to have had, occasion to address himself in open court to the judge, is referable to this head: it consists in making a motion, or opposing it.

In the aggregate mass of motions, two main branches may be distinguished: motions not of course, and motions of course.* The use of the distinction will appear presently.

The mass of business composed of motions not of course, calls upon us to distinguish it into two branches:—1. Incidental motions; being so many applications made to the judge, in the course of a suit already instituted in some other form. 2. Original or originative motions; giving birth each of them to an individual suit, belonging to that class of suits which on this account may be ternted motion-suits or causes.

All motions not of course have two common properties or characteristic differences, by which they are distinguished from motions of course:—1. Each of them has for its ground and support a mass of evidence; 2. That mass, the whole of it, is of a sort which not only is, but, by all those by whom on a disputed case it is thus employed, is perfectly known, and, upon occasion, openly acknowledged, to be of an inferior and untrustworthy complexion: so untrustworthy, that, when better is to be had without preponderant delay, vexation, and expense (and it is seldom indeed in which it is not to be had even with less delay, vexation, and expense,) it is altogether unfit to be, on any disputed occasion, ever received in any court of justice.

Motion causes, in so far as they extend, are a sort of improvement upon ordinary causes: they are tried in a bad mode, but in a mode somewhat less dilatory: perjury abounds and triumphs; but one way or other the business terminates. As men are dealt with in those courts, he who is soonest out of them is best served. All the rules of evidence are either discarded or reversed. No unwilling witness is compellable; every willing witness is received. Every party is admitted to swear for himself; no party is compelled to swear against himself. Testimony, which would not be received on any other occasion—the testimony of a convicted perjurer—is received on this occasion without difficulty. Every man that chooses to be heard is heard, on condition that his testimony be concerted with an attorney, and that he be not cross-examined.

Incidental motions arise most of them out of factitious business, the business made at the offices. With the help of so many devices, all directed to this end,—exclusion of the parties, mechanical judicature, jargon, fiction, mendacity-licence, nullification,—blunders are made, or pretended to have been made, that application may be made for setting them to rights: these applications are called motions; the incidental motions.

Under any natural system, accidents may arise, producing need of new arrangements, and of application for that purpose to the judge: unexpected absence, sickness, lunacy, death, and so forth. On an occasion of this sort, what truth and justice require is, some person from whose testimony (when present and examined) the judge can deduce sufficient ground for being satisfied about the matter of fact. Instead of that, he sees a lawyer, who, knowing nothing about the matter, stands with a paper in his hand, containing a vamped-up story, which, whether in his own eyes it be true or false, he calls upon the judge to take for true.

Motions of course, are motions that are of no use. Without any one exception, this character belongs to every individual operation of the class thus denominated. Of no use, none whatever: understand always with reference to the interest of the suitor, to the ends of justice. To the ends of judicature, to the partnership in divers of its branches,—yes, of no small use.

A motion of course, is an application supposed to be made to the judge, but which, made or not made, never is refused—never creates on the part of the judge any demand for the exercise of reason—never, in fact, comes under his cognizance.

Motions of course, are again distinguishable into two other classes—1. Motions made; 2. Motions not made.

This distinction is of comparatively recent growth. Originally, all motions used to be made: all are still supposed to be made.

Every motion of course, that has been made, is signed by the advocate, in attestation of his having made it; in attestation of his having received the fee charged by the attorney to the client.

Every motion that has not been made, but is charged to the client as having been made, is also signed by the advocate; viz. in attestation of his having made it, as well as of his having received his fee for it.

Made or not made, they are all alike useless: mere pretences, false pretences, for extracting money out of the pocket of the distressed suitor, to put it into the pockets of the attorney, the barrister—the judge’s protegé, and eventually the judge. Pretence of speaking, is false in many of them; pretence of thinking, is false in all of them.

In conclusion, we have a division of the whole stock of motions: applications that ought not to be made in that manner, and applications that ought not to be made at all: the division is exhaustive.

[* ]Of late years this class of motions has been very considerably reduced by rules of court issued by the judges.—Ed.