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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 XX.

FIFTEENTH DEVICE—MEANS OF SECURING FORTHCOMINGNESS, USELESSLY DIVFRSIFIED.

For various purposes, on various occasions, the ends of justice require, sometimes that things—sometimes that persons, be forthcoming, at the disposal of the judge.

Sometimes in the character of sources of evidence: sometimes in the character of portions of the matter of punishment: sometimes in the character of portions of the matter of satisfaction; or else as securities or instruments for the obtaining it.

It is in these characters that they find a place, under such titles as mesne process and execution, in the books of technical jurisprudence.

On or by the same object—on or by the same thing, or even the same person—different operations require to be performed, according to the purpose or end to which justice requires that it or he be made subservient.

Where the purpose is the same, different operations may again be requisite, according to the nature of the thing, according to the condition of the person.

Of all these operations, be they what they may, not one, of which vexation, expense, and delay, in quantities variable ad infinitum, are not inseparable concomitants. In each instance, is the quantity or value of this mass of collateral inconvenience greater, or less, than that of the direct mischief consisting of such chance of misdecision or failure of justice, as, for want of the operation, might be the result? On the answer given to this question of fact, the propriety or impropriety of the operation will depend, in each individual instance.

Here, then, are so many demands for diversification: so many circumstances calling fo diversity of arrangement at the hands of the the legislator and the judge.*

If, to the demand thus presented by diversity of exigence, little attention has been paid,—attention has not been wanting to that which is presented by diversity of courts.

Four courts in the one great hall at Westminister: four courts,* each with a mode of its own for compassing the same point. Each mode, of course, abundantly well adapted to the ends of judicature; each mode as abundantly defective, with respect to the ends of justice.

Thank heaven, that of these courts there are no more than four: each of them presenting a compound of impotence and violence; feeble where good is to be done—powerful to do evil. Had there been eight of them, we should have had eight different modes of plaguing a man, to the same end, or on the same pretence: each of them efficient or defective, according to the ends to which (as above) reference is made.†

Uses of this device:—

1. Helping to furnish rubbish, materials for the sham science. For the uses of sham science to the partnership, see the device intituled Principle of Nullification, and the device intituled Jargon, or Jargonization.‡

The remaining uses would be but repetitions of the uses there enumerated: making business, nursing uncertainty, establishing and supporting arbitrary power, blinding the legislator, awe-striking legislator as well as people, driving the legislator by disgust from the task of reformation.

Thus far as to the mere diversity, and its uses. As to the imperfections above spoken of, multitudinous as they are, there is not one of them but has its use: but to exhibit them, each with its train of uses, would require a volume within a volume. If nature, as hath been said, hath done nothing in vain, so neither hath jurisprudence.∥

[* ]For example: when, under the notion of causing a man to deliver up his property for the payment of a debt, a man is thrown into prison,—if the ends of justice were in view, a matter worth inquiring into (especially where, as yet, it has not been ascertained that he owes anything) would be, whether he be in his right mind or no; and whether, upon his removal, speedy or instant death is or is not likely to be the consequence.

Questions of this sort, sitting in a court of natural procedure, a man, if he have the bowels of a man, does not regard as beneath his cognizance.

Accordingly, when, in the case of Daniels (who, being in custody on a charge of fraud, should have been brought before the lord mayor for the purpose of examination,) representation was made, alleging that danger to life might be the consequence of removal, due regard was of course paid to it: for here was an unlearned judge; and cognizance of the apprehended mischief was of course presented to his notice.

Impassible, like the Epicurean gods, learned judges look down with generous disdain on any such trifling exigencies. Accordingly,—so the fees for the capias (or whatever else may be the word) be but secured,—debt or no debt, a man out of his senses forms as fit an inhabitant of a jail, as a man in his senses—a dying man, as a man in health. In either case, apply for redress, you will get none, even for all your fees; these things being among the minima de quibus lex non curat: and here no diversity appears in the practice of the courts.a

[* ]There are literally six courts,—viz. the Queen’s Bench, Common Pleas, Exchequer, the Lord Chancellor’s, the Master of the Roll’s, and the Vice-Chancellor’s.—Ed.

[† ]This topic belongs, in co-ordination with evidence, to the general head of procedure.

[‡ ]Supra, pp. 253 and 280.

[∥ ]Take a grain for a sample of the bushel:—Moveable or immoveables, freehold or copyhold, interest present or future, certain or contingent, money in hand or receivable,—in whatever shape or shapes the property of a debtor happens to be vested, justice requires alike that the creditor should have the benefit of it. Justice? Yes: but not so English regular judicature.b Diversity upon diversity: option upon option: each of course incomplete, and pregnant with injustice. Of immoveables (to a given value,) if copyhold, no part, upon any terms: if leasehold, the whole: if freehold, the half, or, if already halved, the half of that half, and so on: as if a house, like a cheese, were made to be cut out into slices. His body in a jail you might have had till lately, if you had liked it better: but then (except in this, that, or the other case) you must not meddle with any of his property: if you do take it, it is not, it cannot be, of any use to you (unless it be for revenge,) but as a sponge out of which property is to be squeezed: and this use, care was taken that you should not make of it. He was sent to jail, that my Lord and Co. might receive their fees: he was kept in jail, and with all his money in his pocket, that not you, but the jailor, my Lord’s nominee the jailor, might squeeze it out of him, in fees and furnishings: and, lest there should not be enough for jailor and customer, not a penny of the debts due to him were you ever enabled to receive.

[* ]For example: when, under the notion of causing a man to deliver up his property for the payment of a debt, a man is thrown into prison,—if the ends of justice were in view, a matter worth inquiring into (especially where, as yet, it has not been ascertained that he owes anything) would be, whether he be in his right mind or no; and whether, upon his removal, speedy or instant death is or is not likely to be the consequence.

Questions of this sort, sitting in a court of natural procedure, a man, if he have the bowels of a man, does not regard as beneath his cognizance.

Accordingly, when, in the case of Daniels (who, being in custody on a charge of fraud, should have been brought before the lord mayor for the purpose of examination,) representation was made, alleging that danger to life might be the consequence of removal, due regard was of course paid to it: for here was an unlearned judge; and cognizance of the apprehended mischief was of course presented to his notice.

Impassible, like the Epicurean gods, learned judges look down with generous disdain on any such trifling exigencies. Accordingly,—so the fees for the capias (or whatever else may be the word) be but secured,—debt or no debt, a man out of his senses forms as fit an inhabitant of a jail, as a man in his senses—a dying man, as a man in health. In either case, apply for redress, you will get none, even for all your fees; these things being among the minima de quibus lex non curat: and here no diversity appears in the practice of the courts.a

[∥ ]Take a grain for a sample of the bushel:—Moveable or immoveables, freehold or copyhold, interest present or future, certain or contingent, money in hand or receivable,—in whatever shape or shapes the property of a debtor happens to be vested, justice requires alike that the creditor should have the benefit of it. Justice? Yes: but not so English regular judicature.b Diversity upon diversity: option upon option: each of course incomplete, and pregnant with injustice. Of immoveables (to a given value,) if copyhold, no part, upon any terms: if leasehold, the whole: if freehold, the half, or, if already halved, the half of that half, and so on: as if a house, like a cheese, were made to be cut out into slices. His body in a jail you might have had till lately, if you had liked it better: but then (except in this, that, or the other case) you must not meddle with any of his property: if you do take it, it is not, it cannot be, of any use to you (unless it be for revenge,) but as a sponge out of which property is to be squeezed: and this use, care was taken that you should not make of it. He was sent to jail, that my Lord and Co. might receive their fees: he was kept in jail, and with all his money in his pocket, that not you, but the jailor, my Lord’s nominee the jailor, might squeeze it out of him, in fees and furnishings: and, lest there should not be enough for jailor and customer, not a penny of the debts due to him were you ever enabled to receive.

[a ]Commons’ Report on Imprisonment for Debt.—April 1792.

[b ]A vast improvement has been effected in this branch of the law, by the 1 & 2 Vict. c. 110. By § 11, the sheriff, by writ of elegit, is to deliver execution of all the debtor’s lands, tenements, rectories, tithes, rents, and hereditaments, including copyholds. And by the following section, the sheriff, by writ of fieri facias, may seize any money, bank-notes, cheques, bills of exchange, &c.—Ed.