The Online Library of Liberty

A project of Liberty Fund, Inc.

• 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 II.

DISREGARD SHOWN TO THE ENDS OF JUSTICE UNDER THE EXCLUSIONARY SYSTEM.

Of the ends of justice, under their principal divisions, a view has already been given: as likewise a view of the connexion that subsists between them on the one hand, and the arrangements capable of being taken for the exclusion of evidence on the other.

But, if this statement be correct,—under all established systems, the practice (for theory there exists nowhere any) will be found to be a tissue of errors and inconsistencies: compared with others, each system infinitely various—compared with itself, each system infinitely inconsistent.

But (it may be said) under all their varieties, these exclusions, thus universal, as you yourself admit, and even proclaim, does not their universality prove the prevalence of one common principle? This principle, then, has it not the universal voice of all mankind, or at least of the most civilized and intelligent among mankind, to sanction it, and attest the reasonableness of it?

Yes, indeed: it has that sort of sanction: its reasonableness is proved by that medium of proof, by which, till within this century or two, supernatural evidence of various kinds, evidence by duel, by ordeal, was pronounced superior in trustworthiness to all human or other natural evidence.

No, truly: the concord in this case is far from being alike real as in those. In substance, the mode of inquiry was in those instances the same: if between nation and nation there was a difference, it was confined to formalities, to unessential modes; here the arms employed by the combatants were of one sort, there of another sort; here a ring was to be taken out of bubbling, and supposed boiling-hot, water; there a party, supposed to be blindfolded, was to take a walk between two rows of heated, or supposed to be heated, ploughshares. But in the case of the exclusions put upon evidence, the agreement was rather in words than principles. One nation, or rather some one corrupt or lazy lawyer in that nation, called for exclusion on one ground; another lawyer, that is, the lawyer of another nation, called for it on a different ground: by each of these lawyers, the decision pronounced by the other was reprobated. Just as if there appeared in a cause a gang of lying witnesses, all contradicting one another, each giving a different account of the same business: they all agree, it may be said, for they all agree in lying—they are all liars. Look to words only, you may thus make harmony, in all cases, out of the most discordant elements.

In the established systems (for in one respect they will be found not discordant,) in the established systems, if non-exclusion be taken for the general rule, the exceptions must be searched for in very different sources from the only justifiable ones. Yes: in one respect they do agree; and it is this: that in no instance are the exceptions drawn from the source just mentioned. If at every other step the direct ends of justice are contravened, the contravention is gratuitous: at any rate, in no instance has it for its warrant and its cause a regard for any of the other ends of justice, the collateral ends: in no instance have men stopped to inquire whether the inconvenience inseparable from the execution of law, in the shape of vexation, expense, and delay, will or will not be preponderant when compared with the mischief attached to the non-execution or undue execution of that article of substantive law on which the suit has been grounded.

Various as are the exceptions taken in these systems to the rule of admission, they will all of them (unless here and there one should be found dictated by the mere force of blind and unaccountable caprice) be found referable to one or other of two leading terms: deception and vexation: anxiety, real or pretended, for the avoidance of deception, and consequent misdecision, on the part of the judge; anxiety, real or pretended, for the avoidance of vexation: anxiety to avoid giving birth to inconvenience in that shape.

Of neither of these fears (supposing that the conduct of the man of law has been governed by it,) of neither of these fears can it with propriety be said that it was directed to an improper object. In the first, we see an apprehension pointing to the direct end of justice: in the other, an apprehension pointing to one of the collateral ends of justice.

But, in so far as fear of deception was the actuating principle, we shall find in every case the measures dictated or supposed to be dictated by a regard for that object, altogether unsuitable, or rather directly repugnant, to the avowed purpose. And again, so far as fear of vexation was the actuating principle, we shall find the measures dictated and produced by that principle equally incompetent. The vexation—that vexation which was to afford a sufficient reason for the justification of direct injustice, for the contravention of the direct ends of justice—will be found to be a quantity either evanescent, or purely ideal, or, though real and considerable, balanced and overbalanced by a preponderant advantage inseparably connected with it.

Thus much for the cases which afford room to conceive that reason and utility have in any shape been consulted on the occasion of the exclusions that have been established. But the cases will be but too numerous and various in which the discovery of any the least colour or shadow of reason will be seen to be a problem altogether insolvable by the most penetrating and industrious eye.

In referring to these two heads (deception and vexation) the exclusions put upon evidence by the established systems,—what I mean is, not so much to vindicate the considerations which, in the minds of the authors, were actually productive of those several arrangements (a task in many instances by much too difficult for any human mind,) as, among the legitimate ends of justice, to bring to view that one, to which the arrangement in question, supposing it dictated by the ends of justice, bears the most obvious reference. For supposing the objects in question (deception and vexation) to have been really in view, the arrangements, with whatever sort of success, would at any rate have been directed towards the ends of justice; those of which deception, avoidance of deception, was the object, towards the direct ends of justice; those of which vexation, avoidance of vexation, was the object, towards that one of the collateral ends: in principle, the arrangement at any rate correct, howsoever in the application misguided and unfelicitous.

In regard to the exclusions here ranked under the head of vexation,—incongruous exclusions put upon evidence under the notion of avoiding to produce vexation,—the reality of that object, in the character of a final cause of the arrangement in question, will in many instances appear probable enough, or even indisputable. But howsoever the case may be in respect of humanity, small indeed is the wisdom that can reasonably be inferred from the regard thus paid to one of the ends of justice. Here, as elsewhere, so far as evidence is concerned, everything depends upon proportions. If the avoiding to produce vexation were the only object necessary to be regarded in legislation, no child in leading-strings would be unequal to the task. The result would be, not the putting an exclusion upon evidence in here and there an instance—not the shutting the door against evidence in the instance in which, by the arrangements in question, it was shut,—but the shutting the door against all evidence tendered on the side of the plaintiff, in whatever cause; or, to speak strictly, the abolition of the whole system of procedure, the abolition of all coercive laws.

To judge, therefore, whether, in the instance of a lot of evidence excluded on the score of vexation, the exclusion be warranted or unwarranted,—produced by a childish emotion, or by a considerate and manly regard for the ends of justice,—inquiry must be made whether the advantages attached to the act from which the vexation is seen to flow, have or have not been set against it on the opposite scale. Referring to the proper place for the details, to assist the conception of the moment let one example suffice. A witness being called on the other side, and standing in readiness to be examined,—that to put a question to him, the answer to which, if true, would have the effect of subjecting him to an obligation (a legal obligation, non-penal or penal,) would give birth to vexation in his breast, is not to be doubted. But in that vexation, great or little, is any sufficient reason to be found to warrant his being exempted from the obligation of making answer? By no means. The evil of the vexation, be it ever so great, is more than counterbalanced by the good flowing from the substantive law (coercive as it is,) by which the obligation is imposed. By itself the weight is great: but the weight in the other scale greatly overbalances it.

To this case of a spurious exception on the score of vexation, apply now the example above given of a legitimate exception on the same score, and observe the difference. By deposing to the rubbish, Sempronius, the East-India writer, would have given the public the benefit of the five-shilling penalty, but he would have retarded, to the amount of one knows not how many thousand pounds, the augmentation of his fortune. Place now on the carpet (instead of the future nabob, the East-India writer,) a malefactor, who, in consequence of his answers to the questions about the rubbish he is supposed to have seen laid on the road, comes to be convicted of a robbery and murder committed on that same road.

In this case, if the quantity of the vexation be the only object which the eye of the legislator is open to, how much greater the vexation than in the other! But, in the East-India writer’s case, the benefit of the five-shilling penalty is all that there was to set in the scale against the vexation: all the good that the case affords consists in the benefit of the five-shilling penalty: whereas, in the malefactor’s case, the good is composed of the chance of the benefit of the five-shilling penalty, with whatever benefit depends upon so much of the security afforded by the law against robbery and murder, to add to it.