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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 XXVII.

EXTENSION OF THE ABOVE DEVICES TO SUBSTANTIVE LAW, AS FAR AS APPLICABLE.

Of the two main branches of the body of the law, the substantive and the adjective, it is to the adjective alone that the subject of evidence belongs. The application of the above or any other devices to substantive law, falls not therefore within the compass of the present work. It is for this reason, and for this reason alone, that the few exemplifications which have been given of the application of these devices have been confined within the compass of the law of procedure.

The error, however, would be great, if it were supposed that it is to this comparatively narrow part of the field of judicature that the application of these contrivances for the pursuit of the ends of judicature is confined. True it is, that, of these two great branches, the adjective is that in the arrangement of which the judicial authority has had the greatest share. But, in every country more or less, and in England in particular, the share which that same authority has had in the arrangement of the main branch, the substantive, has been very considerable. Even in this branch, the part taken by the judicial authority may, in comparison with the part borne by the only competent and legitimate legislator, be styled the principal part: jurisprudential law forming the ground, statute law sticking on here and there a few patches upon that ground. In both parts of the work, the action of the same sinister interest being favoured with the same opportunities, the same character and complexion would naturally be exhibited by the work in both instances. As far as power extended and occasion favoured, the system of procedure would be adapted to the ends of judicature; the system of substantive law would be adapted to the system of procedure. The object in respect of the adjective branch, besides the multiplication of suits (understand always profit-yielding suits,) was to adapt the course of procedure to the purpose of extracting from each suit its maximum of profit. What it was in men’s power to do, in working upon the substantive branch, towards the common end of both branches, confined itself to the purpose of giving birth to the greatest possible number of suits: to extract from each the greatest quantity of profit that it could be made to yield, lay exclusively within the province of the adjective branch. Flowers necessary for the crop might be furnished by both branches: it was from the adjective alone that the fruit could be reaped.

Intermediate ends common to each were, the nursing in the mind of the individual, in his character of suitor and client, the qualities of ignorance and error; on the part of the law itself, uncertainty, uncognoscibility, obscurity, ambiguity, and voluminousness.

Of the devices or contrivances directed to those ends, five (viz. exclusion of the parties—tribunals rendered inaccessible by distance—days fixed with long intervals—mechanical judicature—and acceptance of allegations in writing, at successive times, and under a licence for mendacity,)—these five, together with the office-multiplication principle, were arrangements exclusively adapted to the nature and texture of adjective law: the remaining ones, viz. the principle of nullification (with its supports, jargon and fiction, and its compound with the principle of reason and utility, the double-fountain principle,) and the habit of magnifying jurisprudential law at the expense of statutory, of representing devices as more real than realities, shadows more solid than their substances,—these five share in the privilege of being applicable to both branches, the substantive as well as adjective, with equal advantage.

And is it then all delusion, the chief pride and comfort of an Englishman, the matchless excellence of his laws?

By no means: from all that has been said, admitting it all to be just, no such consequence follows.

1. What there is good in the system, will be found to exist in a much larger proportion in the form of statute law, than in the form of jurisprudential law: in other words, to have been in a greater degree the work of king, lords, and commons, the legitimate legislators, than of judges, spurious usurping legislators, making base law underground, as their brother usurpers make base money, and like them, with one everlasting lie in their mouths, disowning their work. Of what has been well done, the far greater part therefore has been done, not by lawyers, but in spite of lawyers: lawyers grumbling at it as much as they dare, and doing what they can to spoil it.

The exertions of the brotherhood have been employed, not so much in the support, as in the destruction, of society. To be assured of this, any eye that is strong and single enough to bear the sight, need but read over the statutes containing the wretchedly scanty provision that has been made by fits and starts for the amendment of the law. In that small but fertile department of parliamentary history, may be read the wickedness of lawyers. It is a history that may match with that of Cartouche, Jonathan Wild, Japhet Crook, and so forth, except that it is without names.

2. It is not in human nature that the character of the technical lawyer should have completely, and in every instance, swallowed up the character of the Englishman or the man. The private interest (it has already been shown) is not on every point, nor on every occasion, in opposition to public interest. Sprinkled here and there over the surface of the law, some good (much or little, according to the object it is compared with,) might doubtless be to be found, that drew its origin from a learned bosom. But, were the proportion much larger than it is, it might not be the less ture, that, if an inventory could be taken of the number of propositions of which the mass of jurisprudential law is composed, nine of them out of ten would be found absurd in themselves, mischievous in their consequences. Take this or that reasonable and useful proposition, you will find it swaddled up in a cluster of perhaps a dozen absurd and pernicious distinctions, extensions, conditions, exceptions, limitations.

But, for judging of the aggregate goodness of a body of law, no tolerably correct criterion can be deduced from the mere comparison of the number of rational and beneficial propositions contained in it on the one hand, compared with the number of irrational and pernicious ones on the other; no more than any estimate can be formed of the severity of a penal code, from the multitude of the penal laws contained in it. As in evidence, weight, so in provisions of law, extent, as well as number, must be taken into account. Sometimes an arrangement, of which the characteristic features may be composed in half a dozen words, shall have so much good in it as to compensate for a mass of irrational and pernicious matter sufficient to fill a volume. Take for instance, in judicature, the principle of publicity.

Were the most enthusiastic admirer of the English body of law as it stands, to be called upon for a list of the provisions on which his admiration grounds itself, he would find perhaps a score or two of pages, not to say a dozen or two, sufficient to contain it. Were he a non-lawyer, there would not be contained in it perhaps one, nor, even if a lawyer, many, of the propositions above alluded to under the description of irrational and mischievous.

The dunghill, were there enough of it to fill Augeas’s stable, would not destroy the value of whatever pearls might be to be found in it; but the dung would not cease to be dung, any more than the pearls would cease to be pearls.*

[* ]If, in the mind of any person by whom the proofs exhibited in the foregoing pages have been perused, there can still remain a particle of doubt of the repugnancy of the technical system to the ends of justice, of its subserviency to the private interest of those by whom it has been administered, or of their consciousness of such repugnancy, as well as of such subserviency (always excepted the persons, whosoever they may be, who, at the time of the present publication, stand invested respectively with judicial offices,)—two sources of information, or either of them, may, to the satisfaction of any eye that may have the curiosity to apply itself to them in this view, afford matter abundantly sufficient for the removal of any such doubt.

1. One of them is, the series of the several acts of the legislature, which, under the particular title of acts for the amendment of the law, or without any such special profession, have touched with a hand more or less strong upon the predominant, the technical, system of procedure; endeavouring, or professing to endeavour, to remove or correct this or that particular imperfection or abuse.

In each of these statutes, besides a source of law, may be viewed a source of history: in the remedy, inadequate or adequate, designed or not to be so, may at any rate (as in a mirror) be seen, in a degree more or less distinct and vivid, the shape and colour of the imperfection or abuse: abuses in number so great as to be counted, one knows not whether to say by dozens, by scores, or by hundreds: and amongst them many a one so flagrant, as to be sufficient of itself, without the aid of any of its numerous associates, to overspread the land with misery.

Two sorts of glasses or mirrors are alike capable of being employed, in taking a survey of this distant scene: one, the lawyer’s, the property of which, like that of the cylindrical mirror, is to give to a mass of universal deformity an artificial symmetry: the other a perfectly plain one, which presents each object in the shape, as well as colours, that really belong to it.

Viewing the scene with a glass of the first sort,—the same which Blackstone is so busy in putting on every occasion into the hands of his pupils,—the object that strikes the eye is the unceasing care and solicitude with which the legislature, having from the hands of its ever faithful counsellor the man of law a system originally wanting but little of perfection, have watched every occasion to supply it with that little.

Viewed with the plain glass, being that through which alone an enlightened lover of mankind would ever bear to view it, the objects that strike the eye will be,—on the one hand, the enormity and multitude of the abuses: on the other hand, the negligence or ignorance of the legislator, and the patience of the people, as manifested by the length of time during which each abuse must have been covering and tormenting society with its baleful effects, before it could obtain its tardy, and almost always its altogether inefficient, or incompletely effective remedy: age after age groaning under the disease, and then at last comes, such as it is, the remedy.a To present the body of information here hinted at, would be to republish the several statutes in question, with a commentary upon each. To point out where and how the information may be obtained, is quite as much as will be deemed suitable to the present purpose.

Secretly, and under favour of the artificial darkness, it has been from first to last the occupation of the man of law, to infuse on every favourable occasion the poison of chicane into the fountains of justice: openly, from time to time, the same insidious hand has been extracting, or making demonstrations of extracting, this or that minute particle of the poison, in great ceremony. In which character is his claim to attention strongest and most reasonable? His real character of poisoner-general, or his assumed character of physician?

2. The other source of information is, the regulations of judicial procedure, established in different countries, as well as in the different courts in this country, by the authority of the judges. In that which has by this authority been done, may be seen (at least to the extent of it) the sufficiency of power; while in what has not been done, as well as in what has been done, may be seen the deficiency of will:—throughout the course of so many generations and centuries, the perpetual andunvaried deficiency or rather utter absence of will (always and completely excepted the venerable persons, whosoever they be, by whom the offices in question may happen to be filled at the time of the publication of the present pages) to render the operations of judicature subservient to the ends of justice,—subservient to any other ends than those so often above designated under the name of the ends of judicature.

[* ]If, in the mind of any person by whom the proofs exhibited in the foregoing pages have been perused, there can still remain a particle of doubt of the repugnancy of the technical system to the ends of justice, of its subserviency to the private interest of those by whom it has been administered, or of their consciousness of such repugnancy, as well as of such subserviency (always excepted the persons, whosoever they may be, who, at the time of the present publication, stand invested respectively with judicial offices,)—two sources of information, or either of them, may, to the satisfaction of any eye that may have the curiosity to apply itself to them in this view, afford matter abundantly sufficient for the removal of any such doubt.

1. One of them is, the series of the several acts of the legislature, which, under the particular title of acts for the amendment of the law, or without any such special profession, have touched with a hand more or less strong upon the predominant, the technical, system of procedure; endeavouring, or professing to endeavour, to remove or correct this or that particular imperfection or abuse.

In each of these statutes, besides a source of law, may be viewed a source of history: in the remedy, inadequate or adequate, designed or not to be so, may at any rate (as in a mirror) be seen, in a degree more or less distinct and vivid, the shape and colour of the imperfection or abuse: abuses in number so great as to be counted, one knows not whether to say by dozens, by scores, or by hundreds: and amongst them many a one so flagrant, as to be sufficient of itself, without the aid of any of its numerous associates, to overspread the land with misery.

Two sorts of glasses or mirrors are alike capable of being employed, in taking a survey of this distant scene: one, the lawyer’s, the property of which, like that of the cylindrical mirror, is to give to a mass of universal deformity an artificial symmetry: the other a perfectly plain one, which presents each object in the shape, as well as colours, that really belong to it.

Viewing the scene with a glass of the first sort,—the same which Blackstone is so busy in putting on every occasion into the hands of his pupils,—the object that strikes the eye is the unceasing care and solicitude with which the legislature, having from the hands of its ever faithful counsellor the man of law a system originally wanting but little of perfection, have watched every occasion to supply it with that little.

Viewed with the plain glass, being that through which alone an enlightened lover of mankind would ever bear to view it, the objects that strike the eye will be,—on the one hand, the enormity and multitude of the abuses: on the other hand, the negligence or ignorance of the legislator, and the patience of the people, as manifested by the length of time during which each abuse must have been covering and tormenting society with its baleful effects, before it could obtain its tardy, and almost always its altogether inefficient, or incompletely effective remedy: age after age groaning under the disease, and then at last comes, such as it is, the remedy.a To present the body of information here hinted at, would be to republish the several statutes in question, with a commentary upon each. To point out where and how the information may be obtained, is quite as much as will be deemed suitable to the present purpose.

Secretly, and under favour of the artificial darkness, it has been from first to last the occupation of the man of law, to infuse on every favourable occasion the poison of chicane into the fountains of justice: openly, from time to time, the same insidious hand has been extracting, or making demonstrations of extracting, this or that minute particle of the poison, in great ceremony. In which character is his claim to attention strongest and most reasonable? His real character of poisoner-general, or his assumed character of physician?

2. The other source of information is, the regulations of judicial procedure, established in different countries, as well as in the different courts in this country, by the authority of the judges. In that which has by this authority been done, may be seen (at least to the extent of it) the sufficiency of power; while in what has not been done, as well as in what has been done, may be seen the deficiency of will:—throughout the course of so many generations and centuries, the perpetual andunvaried deficiency or rather utter absence of will (always and completely excepted the venerable persons, whosoever they be, by whom the offices in question may happen to be filled at the time of the publication of the present pages) to render the operations of judicature subservient to the ends of justice,—subservient to any other ends than those so often above designated under the name of the ends of judicature.

[a ]Examples:—1. Uncontrouled faculty of arrestation for debt. 2. Ditto of outlawries.