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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 I.

VEXATION TO INDIVIDUALS ARISING SOLELY OUT OF THE EXECUTION OF THE LAWS, NOT A PROPER GROUND OF EXCLUSION.

It has already been proved—that is, observed (for surely this is one of those cases in which to observe is to prove)—that there are cases in which exclusion of the evidence, on the ground of the vexation inseparable from the delivery of it, is a proper measure;—viz. where the collateral mischief consisting of the vexation is preponderant over the direct mischief produced by the chance of misdecision or failure of justice resulting from the want of the evidence.

It was, at the same time, and in the same way, proved, that there are cases in which such exclusion, bottomed on that same ground, is not a proper measure;—viz. all cases in which the balance as between the two mischiefs is on the other side.

The several cases in which the mischief of the vexation resulting from the delivery of the evidence is capable of being preponderant over the mischief of misdecision or failure of justice for want of the evidence, have this common property,—viz. that the vexation is produced by circumstances entirely independent of the uneasiness produced by the obligation of making any disclosure, the effect of which is to subject the proposed witness, or any other person, to any punishment or other burthensome obligation, to which it is the intention of the legislator that he should be subjected. It is produced, in all these cases, by circumstances accidental and extrinsic: for example, disproportionate expense by reason of a long and expensive journey or voyage; irreparable loss of time; disclosure of collateral facts, such as a third person has no right by law to be informed of.

Besides these accidental lots of vexation, there is, however, one, which may be considered as naturally, and in the ordinary course of things, attached to the obligation of giving evidence: and that is, the thought of the unpleasant and more or less prejudicial consequences, which the evidence may have the effect of producing, to the prejudice of the proposed witness himself or some other person, by reason of the execution of a judicial decision, of which such evidence may constitute, or help to constitute, the ground. By the idea of such consequences, considered as liable to be produced by the evidence, an unwillingness to deliver it (which is as much as to say, vexation in the event of its being delivered) will, in many cases, be produced. Concerning this unwillingness, indubitable or presumable, a notion has obtained, that, in many if not in all cases in which the existence of it is regarded as certain or probable, it constitutes of itself a sufficient reason for excluding the evidence to which it is regarded as attached. And, in one of the most enlightened nations of Europe, this notion, having been adopted by judges, and, under their authority having formed itself into a rule or maxim of jurisprudential law, has constituted the basis of an arrangement exercising a most extensive and important influence over the whole fabric of the law of procedure. Regarding it as one of the most pernicious and most irrational notions that ever found its way into the human mind. I propose to allot this whole Part to the task of sifting it to the bottom, in the hope that the labour employed in a task at once so important and so new, will not be regarded as ill-bestowed.

To constitute a just ground of exclusion, the lot of vexation here in question must be a mass of that evil over and above what would have been produced by a decision to the same effect grounded on other evidence—on any evidence to which the lot of vexation in question would not have been attached. For, supposing the exclusionary notion to extend to all other evidence—to other evidence at large—to whatever vexation might come to be produced by evidence of whatever description, having the effect of subjecting some person or other to the punishment or other burthensome obligation in question,—to say that, in consideration of the vexation thus resulting, no such evidence ought to be received, would be as much as to say, there ought not to be any such thing as a punishment or other burthensome obligation ever imposed; in a word, that there ought not ever to be any such thing as a law.

But (it may be said) there are such things as bad laws: and in no country is the body of the laws altogether free from them. Now, the effect of the practice which, in opposition to the exclusionary rule in question, forces testimony from persons of all descriptions, without regard to unwillingness and consequent vexation, is, to give to whatever substantive laws it is employed in giving execution to, a degree of efficiency much beyond what they would possess in the opposite case. But, by giving this extraordinary degree of efficacy to all laws (substantive laws) without distinction, it will give the same degree of efficiency to as many bad laws as it happens to the aggregate body of the laws to include: and forasmuch as in every existing system the extent of this mass of bad laws is more or less considerable, the mischief of the practice against which the door is shut by the exclusionary rule would be proportionably great.

In the character of an argument in favour of the exclusionary rule, the defect of this argument will, I imagine, be found apparent upon the face of it. But inasmuch as, when sifted to the bottom, it will be found to lead to discussions of a very delicate and important nature, I do not propose to leave it ultimately in its present state, to stand altogether upon its own strength or weakness. For the present, however, confining the examination to the question immediately appertaining to the present Book, I shall content myself with bringing to view, by way of answer, the following observations: viz.—

1. Supposing that, for the accomplishment of the purpose stated in the argument, the exclusionary rule is, upon the whole, well adapted, it can be so in no other respect than that of its operating in the character of a debilitative upon the whole of that portion of the body of substantive laws to which it applies; weakening their efficacy,—rendering them so much the less efficacious, in respect of the purposes which they respectively have in view. But, so far as this alone is considered as the result of the rule in question, and that result a beneficial one, it is no otherwise of use than as any other institution or arrangement would be of use, that should in an equal degree contribute to weaken the efficacy of the laws.

On one only supposition would the balance of its effects be on the side of benefit; and that is, if the aggregate body of the laws were so constituted, that the mischief resulting from such as are mischievous, outweighs, upon the whole, the good resulting from such as are of a beneficial character. But, that, even under the worst government of which any accounts are extant, the supposition here in question was ever realized, seems altogether improbable: for, on this supposition, a state of anarchy would be less mischievous than—would be preferable to—such a state of government.

2. The person to whom it is proposed to form his opinion, and consequent decision, respecting the propriety of the exclusionary rule, is the legislator. In the political state in question, either that rule is not as yet established, or it is already established. If not, then, considered as addressed to the legislator, the argument stands thus:—

Monitor. In the state subject to your authority there are a multitude of bad laws: to weaken their efficacy, please to establish this exclusionary rule.

Legislator. Excuse me. Of such laws, if any, as in my judgment are bad laws, I shall not content myself with weakening the efficacy; I shall abolish them altogether. In regard to such of them as in my judgment are good laws, I should be sorry to do this, or anything else, that should in any degree weaken their efficacy.

Shift now the scene to a state in which the exclusionary rule has already been established:—

Monitor. In the state subject to your authority there are a multitude of bad laws. It has been proposed to you to abolish the exclusionary rule. Do no such thing: it is a most useful rule; it serves to weaken the efficacy, and thus to diminish the mischievousness, of your bad laws.

Legislator. Thanks for your caution. But being also fortunate enough to have a multitude of good laws, my wish is, to give to those good laws the highest degree of efficiency they are susceptible of. The effect of this exclusionary rule which you are so anxious to preserve, is (taking your own account of it) to weaken the efficacy of whatever laws, good as well as bad, it is applied to. Taken in its natural state, and unless subject to limitations to which you do not propose to subject it, it applies to all laws, and weakens the efficacy of all: it is for this reason I mean that it should no longer have any application to any of the good ones; and it is in that view that I mean to abolish it altogether. As to the bad laws. I shall not content myself with weakening their efficacy: convince me of their badness, and I shall abolish them.

Monitor. But, among those laws which in your judgment are bad ones, and which accordingly you propose to yourself to abolish, may not there be some, which, regard being had to the affections and prejudices of the people, it would appear to you not advisable to abolish?

Legislator. I should be sorry to find any such: but if such there be, there are several courses, any or all of which I should prefer to the giving up the benefit of the increase which the abolition of the rule would give to the force of such of the laws as to me seem good ones.

1. I would cause to be laid before the people the reasons by which my disapprobation of such laws as to me seem bad ones was produced. Having operated upon my mind, probably enough they may operate on other minds; especially as coming from a station from whence, if tolerably well dealt with, men are apt enough to take their opinions as well as their laws. And, moreover, should it so happen, that, by my reasons thus made known, any others should be brought forth, that in my maturer judgment should prove preponderant over mine, I propose to myself to take the opposite course; viz. to go over to the side of the people, instead of their coming over to mine.

2. In the meantime, if I despaired of being able either to bring over the people to my opinion, or to carry over mine to theirs, I could, if I thought it worth while, leave the debilitative rule to apply itself to the particular laws thus appearing to me to be bad ones. Leaving these laws in that state and degree in which I found them, the people would have no reason to complain of me; and, barring the operation of the rule in debilitation of my good laws, I should give to them all the operative force which it is desirable that good laws should possess.

In the case where the evidence in question is of the self-regarding, the self-criminating kind,—if testimony extracted from a man’s own lips were attended with any the smallest degree of probability of unjust suffering on his part, over and above that which results from testimony extracted from an extrancous and indifferent witness, there would then (on the ground of danger of deception and consequent misdecision) be, in point of reason, a ground, not for exclusion indeed, but, however, for suspicion and cantion more than ordinary on the part of the judge. But who does not see that the supposition thus brought to view for the purpose of illustration and argument, is a supposition which holds good, not in the present case, but in the case directly opposite, viz. that of self-serving testimony? with only this difference, that, whereas in that case there is only a chance of the existence of falsehood on that side, there is a certainty of the non-existence of it in the present case. It is not every man that will swerve from the truth for his own advantage: a man of entire probity will not, to the value of a hair’s-breadth. But there is not that man breathing, who, being in his right mind, and having his own interest alone at stake, ever will knowingly swerve from the line of truth to his own disadvantage.

There is but one sort of evidence which, practically speaking, is free from all danger of producing deception by mendacity; and this is the sort of evidence upon which an exclusion has been put by English lawyers.

Two men have each committed an offence, or done, each of them, an improper act of any other description—an act which in both cases is improper in the same degree and the same way. In the instance of one of them, it so happens that the act can be proved against him without resorting to his own testimony: in the other instance, so it happens that, though with the help of his own testimony it would be proved upon him, yet without that help it cannot. Is there any earthly reason why the lot of one of these men should be better than that of the other? why his suffering should be in the smallest degree less? Yet, under the exclusionary rule, one of them suffers not merely less than the other, but absolutely nothing; while his not more guilty fellow suffers the full rigour of the law.

Cross and pile (whether antecedently or subsequently to conviction) would not, by man in general, would not certainly by English lawyers, be regarded as a just and proper method of determining, amongst two or more equally guilty, which should and which should not suffer. Cross and pile, when called in by the common sense of jurymen for their relief in a situation of honest doubt, has been reprobated with indignation by their learned and official directors. But, in the case here in question, acquittal by cross and pile would be a signal improvement, if substituted to acquittal by the force and virtue of this exclusionary rule. In cross and pile, the naturally-sagacious or learnedly-instructed knave would not behold any means of safety more open to himself than to his less instructed fellows: whereas, it is the nature of the exclusionary rule to operate as a licence for delinquency to all those whose astuteness, seconded by ordinary good fortune, enables them to take advantage of it. Who shall count the multitudes that day after day have been acting under this licence? For it is among the properties of this invitation to guilt, that those who act under it with most felicity and success are those who enjoy the ulterior advantage of not being known to have acted under it.

That, under the protection of this licence, the impunity of the wicked may be as complete, and the encouragement to wickedness as inviting as possible, malefactors and lawyers have joined in another practice. Under circumstances of notorious delinquency, liberated in virtue of this or any other incident foreign to the merits, malefactors may be seen everywhere holding their heads high, and (as often as occasion presents itself) assuming the port and language of injured innocence. Accordingly, when a delinquent has been thus fortunate, to speak of him in the character of a delinquent is an offence punished, and with equal rigour, as in the object of the imputation had been a character of the purest innocence. In a place where (happily for the existence of society) the offensiveness of unwelcome truth to the feelings of evil-doers does not enable them to transfer upon their censors the punishment due to themselves, what a clamour was once raised by the appellation of acquitted felons! As if an acquitted felon was a sort of animal no more capable of finding itself in existence on English ground, than a spider was supposed be in Ireland. All this while, under the genial influence of this and so many other rules so ingeniously and successfully directed to this end, acquitted felons and acquitted malefactors of all sorts and sizes are as much at home in the British Isles, as venomous serpents in Guiana, or crocodiles in the Nile. In a relaxed constitution of the body politic, acquitted and unprosecuted malefactors of all kinds are no less congenial to that artificial body, than, in a constitution of the same character, the tænia, the lumbricus, and the ascaris, are to the natural body. In one particular, the parallel discovers an unhappy failure. In the natural body, it is not in the power, and as little (let us hope) in the wish, of the licensed practitioner, to propagate the breed of the vermin to the plague of which it is exposed: whereas, in the political body, by the instruments which there has been such frequent occasion to bring to view, we have been seeing the hand of the practitioner occupied, with unwearied perseverance, in sowing the seeds of wickedness in every imaginable shape.