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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 VI.

EXCLUSION OF THE EVIDENCE OF A CATHOLIC PRIEST, RESPECTING THE CONFESSIONS INTRUSTED TO HIM, PROPER.

Among the cases in which the exclusion of evidence presents itself as expedient, the case of catholic confession possesses a special claim to notice.*

In a political state, in which this most extensively adopted modification of the christian religion is established upon a footing either of equality or preference, the necessity of the exclusion demanded on this ground will probably appear too imperious to admit of dispute.

In taking a view of the reasons which plead in favour of it, let us therefore suppose the scene to lie in a country in which the catholic religion is barely tolerated: in which the wish would be to see the number of its votaries decline, but without being accompanied with any intention to aim at its suppression by coercive methods.

Any reasons which plead in favour of the exclusion in this case will, à fortiori, serve to justify the maintenance of it, in a country in which this religion is predominant or established.

These reasons seem referable partly to the one, partly to the other, of two of the heads above mentioned:—viz. 1. Evidence (the aggregate mass of evidence) not lessened; and 2. Vexation, preponderant vexation.

1. First reason in favour of the exclusion: mass of evidence not lessened by it.

Suppose it an established, and thence a known rule of procedure, that a catholic priest is not exempted from the obligation of disclosing (if called upon in a judicial way, like any other witness) statements made to him in such his character, by a person appearing before him in the character of a penitent, in the catholic sense: statements of such a nature, as would operate in the character of self-prejudicing (including self-criminative) evidence, if reported by such his confessor, in or for the use of a court of justice.

What would be the consequence:—That, of that quantity of confessorial evidence which is now delivered in secret for a purpose purely religious, a certain proportion (it is impossible to say what, but probably a very considerable one) would not be so delivered: would be kept back, under the apprehension of its being made use of for a judicial purpose. The rule would operate as a prohibition upon all such confessions for the spiritual purpose, as would be applicable to the temporal purpose: and the penalty would be, whatever consequence of a penal or otherwise burthensome nature might be expected to flow from the decision which such testimony would warrant, and would therefore be calculated to draw forth.

So far as the prohibition thus applied had its natural effect—the effect of preventing the practice,—so far, the support afforded to the exclusion by the reason “mass of evidence not lessened,” would extend. So far as the prohibition failed of being followed by this effect, the reason operating in support of the exclusion would be to be sought for under another head: vexation, preponderant vexation.

Of this vexation, then, what would be the quality and the amount? It would present itself in a variety of shapes:—

I. I set out with the supposition, that, in the country in question, the catholic religion was meant to be tolerated. But with any idea of toleration, a coercion of this nature is altogether inconsistent and incompatible. In the character of penitents, the people would be pressed with the whole weight of the penal branch of the law; inhibited from the exercise of this essential and indispensable article of their religion; prohibited, on pain of death, from the confession of all such misdeeds as, if judicially disclosed, would have the effect of drawing down upon them that punishment; and so, in the case of inferior misdeeds, combated by inferior punishments.

Such would be the consequence to penitents: to confessors, the consequences would be at least equally oppressive. To them, it would be a downright persecution: if any hardship, inflicted on a man on a religious account, be susceptible of that, now happily odious, name. To all individuals of that profession, it would be an order to violate what by them is numbered amongst the most sacred of religious duties. In this case, as in the case of all conflicts of this kind, some would stand firm under the persecution, others would sink under it. To the former, supposing arrangements on this head efficient and consistent, it would have the effect of imprisonment—a most severe imprisonment for life. As to those who sunk under it,—what proportion of the number would on this occasion be visited by the torments of a wounded conscience, and to what degree of intensity those torments would amount in the instance of each individual, are questions, the answer to which must on this occasion be referred by a non-catholic to the most competent judges amongst catholics: but a species of suffering, the estimation of which does not require any such appropriate and precise information, is the infamy that could not but attach itself to the violation of so important a professional as well as religious duty.

The advantage gained by the coercion—gained in the shape of assistance to justice, would be casual, and even rare: the mischief produced by it, constant and all-extensive. Without reckoning the instances in which it happened to the apprehension to be realized, the alarm itself, intense and all-comprehensive as it would be, would be a most extensive as well as afflictive grievance.

But the vexation pointed to as above would not be the only price that would be to be paid for so inadequate an advantage. The advantages of a temporal nature, which, in the countries in which this religious practice is in use, flow from it at present, would in a great degree be lost: the loss of them would be as extensive as the good effects of the coercion in the character of an aid to justice.

To form any comparative estimate of the bad and good effects flowing from this institution, belongs not, even in a point of view purely emporal, to the design of this work. The basis of the inquiry is, that this institution is an essential feature of the catholic religion, and that the catholic religion is not to be suppressed by force.

If in some shapes the revelation of testimony thus obtained would be of use to justice, there are others in which the disclosures thus made are actually of use to justice, under the assurance of their never reaching the ears of the judge. Repentance, and consequent abstinence from future misdeeds of the like nature; repentance, followed even by satisfaction in some shape or other, satisfaction more or less adequate for the past: such are the well known consequences of the institution; though in a proportion which, besides being everywhere unascertainable, will in every country and in every age be variable, according to the degree and quality of the influence exercised over the people by the religious sanction in that form and the complexion of the moral part of their character in other respects.

But, without any violation of this part of his religious duty, and even without having succeeded so far as to have produced in the breast of the misdoer any permanent and efficacious repentance, modes are not wanting in which it may be in the power, as it naturally will be in the inclination, of a conscientious and intelligent confessor, to furnish such information as shall render essential service to the interests of justice. I mean, by ministering to the prevention of such individual misdeeds as, though meditated, are as yet at a stage short of consummation; or of such others as, though as yet not distinctly in contemplation, are in a way to present themselves to the same corrupted mind. Who the misdoer is, the confessor knows better than to disclose; as little will he give any such information as may lead to the arrestation of the delinquent, under circumstances likely to end in his being crushed by the afflictive hand of the law. But, without any such disclosure, he may disclose what shall be sufficient to prevent the consummation of the impending mischief. “At such or such an hour, go not, unless accompanied, to such or such a place: strengthen such or such a door: be careful to keep well fastened such or such a window.”

Warnings of this kind, if I understand a-right, have not unfrequently been given:—warnings, which might have been given, and would have been given in better times, might (had they been given) have operated as preventives to the most grievous public calamities. At the time of the religious wars in France, more than one of the fanatics, who, with different degrees of success, aimed a murderous hand at the person of the monarch, prepared themselves for the enterprise, according to the histories of the times, by previous confessions, in the course of which the design was more or less disclosed. Without exposing the intended assassin, it might naturally have been in the power of the confessor to have frustrated his flagitious project: without opportunity, the attempt would not have been made; and, without the attempt, the design would not have afforded evidence sufficient for the purpose of penal justice.

The discussion has been rendered the more particular, for the purpose of giving the clearer view of the essential differences by which this case stands distinguished from another, with which it might be liable to be confounded: I mean the case of those disclosures which may come to be made by an individual, criminal or non-criminal, to a law adviser, in the character of attorney or advocate; a topic which will come to be considered in its place.*

[* ]For the Author’s farther views on this subject, vide supra, Vol. VI. p. 98.

[* ]Vide infra, Part IV. Vexation; Chap. V. § 2.