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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 XXIV.

NINETEENTH DEVICE—LAUDATION OF JURISPRUDENTIAL LAW.

Wherever jurisprudential law reigns, certainty is impossible: it has no ground to stand upon. Jurisprudential law is sham law: to ascribe stability to this creature of the imagination, is to ascribe stability to a shadow.

Statute law has everywhere a tenor—a determinate collection of words: there is the will, and there is the expression of it:—we know whose will it is, where signified, by what signs expressed, what parts are to be found in it. Jurisprudential law, is law made by nobody, at no time, and in no words.

In statute law, words may here and there be ill chosen; and, from the infelicity of the choice, uncertainty as well as misconstruction may arise; but no sooner is the flaw perceived than it may be remedied. Jurisprudential law is perpetual disease, perpetually unsusceptible of all cure. From statute law, yes: but, so far as statute law extends, jurisprudential law is (or at least ought to be) extirpated; if it be not, the disease, so far from being cured, is aggravated. There is the statute law to give certainty: there is the jurisprudential law to take it away.

In jurisprudential law may be seen, not the parent only, but the protecting guardian, of all these other abuses. In it, the founders of the fee-collecting system have ever beheld the offspring of their own brain, the work of their own hands, the fruit and pledge of their own power. Statute law is the work of whom? Of the legislator—the lawful, the real, legislator. Jurisprudential, of whom? Of the judge—of the underhand workman, always making work, always disavowing it when made—of the Birmingham come making his own trash, and passing it off for the king’s—of the dishonest valet, stealing out in the dark, going about in his master’s name, and receiving homage in his clothes.

By what legislator, by what genuine legislator, recognised as such, and in pursuit of public ends, could any devices such as those over which we have been glancing, have been set up? By what legislator? unless, perchance, under the guidance of some Achitophel member and instrument of the fee-collecting partnership, serving the ends of judicature while talking of the ends of justice.

That which exists not, cannot be known. So far as the dominion of jurisprudence spreads, ignorance is universal, misconception endless.

An article of statute law is a drop of water, in the state of water, or in that of ice: an article of jurisprudential law is the same drop in the state of vapour. In the solid or liquid state, you know where the drop is, you see it, you may weigh it, you may measure it: you see the bounds of it: those bounds are narrow and determinate. In the state of gas or vapour, unless you have it in a bottle, you know not where it is, you do not see it, you cannot weigh it, you cannot measure it: assignable bounds it has none, unless it be the limits of the atmosphere.

Such is an article of jurisprudential law. In the form of statute law, a single line might, perhaps, contain the substance of it, and that perfectly: in the form of jurisprudential, the same article shall fill a folio volume; and the larger the folio, the more indeterminate the import of the article. To a command, there is an end: to a dissertation, there need be none.

In statute law, non-notoriety is an accidental disease: of common law, it is the inseparable essence. In statute law, the disease may be cured as soon as discovered: in common law, every remedy is so much added to the disease.

Non-notoriety is sometimes an inbred but always curable disease, sometimes an extraneous defect, in statute law; not non-notoriety merely, but uncognoscibility, an aggravated and incurable exacerbation of the same disease, cleaves to the essence of jurisprudential law.

Introduced by jurisprudential law, every pretended improvement, every improvement that, if introduced by statute law, would be a real one—every slip of common sense and common honesty forced into a soil so repugnant to both, brings into action the double-fountain principle. Fear not on this ground to earn the praise of liberality. Plant your improvements; round your periods; proclaim the ardour of your zeal for justice: all this you may do, and earn the praise of justice without prejudice to the ends of judicature. While under the genial influence of the double-fountain principle, the old rank weeds are numerous and strong enough to spring up and choke the new plants: all this liberality is but a more refined way of carrying on the manufactory of made business.*

By the uncertainty of the law, the partnership interest is served in three distinguishable ways:—1. The number of suits is increased; 2. The quantity of business receives a further increase, from the quantity of advice which men are necessitated to purchase—advice before a suit, during a suit, and for fear of a suit; 3. In proportion to the degree of uncertainty, the judicial members are invested with a degree of power proportionably arbitrary, and thence applicable to the purposes of the partnership in all imaginable ways.

Going to law, I have a chance—not going to law, I have none: such is the encouraging speech which the interest of the partnership requires should as often as possible be made by the parties, each to himself, on both sides. The oftener a speech to this effect is made and acted upon (provided always it be on both sides,) the greater and more glorious, and thence the richer in profit, the uncertainty.

Out of the manufactured necessity of advice—advice which, by the operation of the same cause that gives birth to the necessity, is so often rendered fallacious—arises that branch of the partnership concern which may be called the opinion trade. Of this, a few words under a separate head.†

Jurisprudential law—the imaginary law extracted by each man for himself out of a mass of jurisprudence—is a vast hot-bed of uncertainty. By statute law, in proportion as it extends, keeping clear of entanglement with jurisprudential law, that most poisonous of all weeds is extirpated.

Hence we have two distinguishable devices, hatched by the technical system, more especially the English branch of it laudation of jurisprudential law—contempt of statutory law.

In two instances that I have chanced to meet with (there may be twenty for aught I know,) the single word policy‡ has served a chief justice or puisne judge of the King’s Bench, for superseding the use, as they have on so many occasions set at nought the declared will, of king, lords, and commons.

Transplanted from parliament (its only proper soil) to the King’s Bench, this word, coupled with the unlimited faculty of applying it (and what limits are ever set to the faculty of applying it?) was of itself sufficient to erect judicature into a despotism. Omnipotence required but a word to create light; jurisprudence required but a word to create darkness.

Not but others, each of them capable of supplying its place, might be found in superfluous abundance, to the right and left, by any one that had taste and courage for the task.

In Christianity is the law of the land:∥ there are seven words; but in those seven words, coupled with the application made of them, there is matter sufficient to supply the place of an inqusition, and to afford to orthodoxy, under each successive change, a perpetual security against disturbance, by barring out all argument on either of two sides at pleasure, and supplying the place of it on the other side.

Temporal tyranny established by a single word, and spiritual added to it by seven more!

What security does any such word as policy afford against the sinister interests and inclinations of the judge?—what security has it ever afforded in taking into his own hands offices, on the abuse of which his power is supposed to afford a check?

Will you believe Lord Mansfield? Judges are higher, better, fitter legislators, than king, lords, and commons. “Common law” (says he in so many words) “is superior to an act of parliament.”* Superior? how so? The reason is not the less brilliant for being unintelligible. “It works itself pure from the fountains of justice:” fountains abundant on the ground-floor of the great hall, unknown (it seems) above stairs. Send a man to common law for purity! Send him to the common sewer to cleanse himself. As he taught, he practised.

Mansfield superior, in his own theory, to king, lords, and commons. Mansfield, when a reforming fit came on him, chose to do everything by himself, with io, mio, and arrio, in the character of mutes and train-bearers.

Another sort of thing, whose reputation for working itself pure is rather better established, is Thames water. Working itself pure on ship-board, it has nothing to do with fountains.

[* ]Compared with the absence of everything that can be called law, imaginary as well as real—of every pre-existing standard which can serve either to the use of the judge in the way of direction, or as against the judge in the way of controul,—even jurisprudential law is a blessing of prime magnitude.

Compared with statute law it is a nuisance.

The use, however, of jurisprudential law, to assist in the making of statute law, is incalculable. In the character of a foundation, it is necessary to the very existence of statute law; at any rate, of a body of statute law grounded on experience; a foundation without which it is incapable of being well adapted to what ought to be its ends.

The materials for the legislator to build with, are cases calling for decision: cases whereby the demand for legal obligations, and for exceptions to these obligations, is, or has been supposed to be, created. In that species of intellectual wealth which consists in collections of those cases, put into method in various ways, no nation is near so rich as the English. The decision may be absurd and pernicious: the case is not the less valuable.

From these considerations, the state of human society in respect of law may be divided into three periods:—

1. The barbarous: in which the judge is suffered, and obliged by physical necessity, to act without any pre-existing rule: and accordingly, as far as depends upon general rules, without controul, as well as without a guide.

2. The semi-barbarous: in which, as depends upon rules, the judge has no surer or more instructive guide, nor any more efficient controul, than jurisprudential law: amended more or less by such particles of statute law as the spur of particular exigencies has called forth.

3. The completely improved or civilized: in which the standard of obedience rests throughout on the basis of statute law; jurisprudential law being completely extirpated—extirpated in form, however preserved in substance.

[† ]Infrà, Chap. XXVI.

[‡ ]Utility would not have served the purpose. Utility is a familiar unassuming word, recognising all men’s competence to judge, and for that purpose inviting them to hear, and look, and weigh, on both sides. Policy involves mystery, importing exclusive wisdom, and excluding from the research all who do not expect to be recognised in the character of politicians.

[∥ ]3 Keb. 307. 1 Vent. 293. Rex v. Carlisle, 3 B. & A. 161.—Ed.

[* ]Atkins, i. 33.