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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 II.

OF INTEREST IN GENERAL, CONSIDERED AS A GROUND OF UNTRUSTWORTHINESS IN TESTIMONY.

Whatsoever be the general disposition and character of the proposed witness, the trustworthiness of his testimony is liable to be affected by the interests of all kinds, to the action of which, at the time of delivering such his testimony, he happens to stand exposed.

Between the ideas respectively denoted by the words interest, motive, hope, fear, good, evil, pleasure, and pain, the connexion is inseparable.

Without motive there is no interest; without hope or fear there is no motive; without good* or evil, there is no hope or fear;† without pleasure or pain there is no good or evil.

To the several sorts of interest, therefore, correspond so many sorts or modifications of motives, hopes and fears, good and evil, pleasure and pain.

The interests, the influence of which is strongest, and most likely to be exerted upon testimony, are those which arise out of the following classes of pains and pleasures:—

• pleasures.
• 1. The pleasures of taste.
• 2. The pleasures of the sexual appetite.
• 3. The pleasures of wealth.
• 4. The pleasures of power.
• 5. The pleasures of reputation.
• 6. The pleasures of case.
• 7. The pleasures of novelty (or gratified curiosity.)
• 8. The pleasures of the religious sanction.
• 9. The pleasures of sympathy.
• 10. The pleasures of antipathy.

• pains.
• 1. The pains of death.
• 2. Severe bodily torments.
• 3. The pains of poverty.
• 4. The pains of disgrace.
• 5. The pains of labour.
• 6. The pains of the religious sanction.
• 7. The pains of sympathy.
• 8. The pains of antipathy.

In regard to pleasures and pains, besides those which are to be found in the above list, a variety of others are exemplified in experience. But, in whatsoever number and variety those which are not inserted in it may be to be found, they will (it is supposed) be found to come, all of them, under this description, viz. that the pleasures are such as to be at the command of whosoever possesses the taste or relish on which their existence depends, and by that means are incapable of exerting an influence on testimony; the pains such, that the avoidance of them depends not upon testimony.

If, in the case of a pleasure, it be of such a nature as to be on some occasions at a man’s command—on other occasions not at a man’s command without his being in possession of some object serving as the instrument of that pleasure, and the possession of such instrument is not to be obtained without money, but is to be obtained by money,—the pleasure, in this latter case, comes under the head of the pleasure of possession, with relation to the matter of wealth—and becomes pregnant with one of the interests capable of acting upon testimony, viz. pecuniary interest.

Thus (as was the case with the earliest astronomers,) if a man, having a taste for astronomy, can content himself with the pleasure of contemplating the celestial objects on a clear night, so far the pleasure he enjoys belongs to the class of those which are not pregnant with an interest capable of operating upon testimony. But if, to enable him to reap this pleasure, he requires an instrument, such as a telescope, the property or use of which is not to be obtained by him but for money,—in that case his pleasure is pregnant with a sort of interest which is either the same with pecuniary interest, or equally capable of exerting an influence on his testimony.

So, again, if it requires him, as the study of astronomy by a clear night without an instrument would do, to be at liberty—and for want of money to purchase his liberty, he is confined to a chamber lighted only from within. So, again, if, having a relish for the pleasures derived from the ideas of the sublime and beautiful, as presented by natural objects, such as the sun, the moon, mountains and valleys, seas and rivers, the objects themselves are not sufficient for him, without the assistance of Macpherson’s Ossian, or Thomson’s Seasons, or Burke on the sublime and Beautiful—and the books are not to be had without money, nor the money without testimony.

So, again, in regard to pains: for example, the pains attendant on this or that disease or indisposition. If, truly or falsely, they are understood to be out of the reach of cure, they too, like the pleasures, are incapable of giving birth to any of those interests by which an influence is occasionally exerted on testimony. But if, being understood to be within the reach of cure, the administration of the cure is (as in general it will be) necessarily attended with expense, then they come within the description of those pains which, by the interest with which they are pregnant, are capable of exerting an influence upon testimony.

Without wine, for example, or without sea-bathing, relief (it is understood) is not to be had; by means of wine, or of sea-bathing, it is to be had: but the wine, or the sea-bathing, is not to be had without money, nor the money without testimony.

Thus much for illustration, and for removal of objections. But in the cases here exemplified, it is sufficiently evident, that, though at a first view it may appear that by the pleasures or pains in question an influence is exerted upon testimony, and that on that score they ought to have been comprehended in the list; yet, upon a closer examination, it appears that the interest by which the testimony is acted upon in those cases, is neither more nor less than pecuniary interest; and that the force of it is proportioned to the pecuniary value of the several instruments in question—the instruments by which the pleasure is expected to be procured, or the pain removed.

The degrees of which the scale of testimonial trustworthiness is susceptible, can rarely be anything better—anything more precise, than merely relative: absolute, the nature of the subject does not, in general, allow them to be. In some instances (as will be seen presently,) and only in some instances, you can say that, whatever be the trustworthiness of the testimony in this first case, it is less in that other case—still less in that third case; but how much less, is what you cannot say in either case: language furnishes you not with the means.

It is not with trustworthiness in psychology, as with temperature in physics; in which you can say not only, it was cooler yesterday at noon than to-day at the same hour; but, by observation taken each day on the thermometer, you can express the difference, by numbering in each case the degrees.

The only state of things in which the force of an interest (whether in the character of a mendacity-promoting or in that of a mendacity-restraining interest) is susceptible of measurement, is that in which the correspondent pleasures or pains have for their efficient cause an object susceptible of mensuration.

Out of all the species of interest, it is only in two that this case is verified, viz. pecuniary interest, and the aversion to labour.

In the case of pecuniary interest, for example, everybody sees, that upon a given person (proximity and probability being in both cases the same,) the operative force of a sum of £20 will be, practically speaking (though not in mathematical strictness,) double that of £10.

So, in the case of aversion to labour, the operative force of a course of labour for two hours, will be, practically speaking, double that of a course of labour of the same sort for one hour, and, mathematically speaking, something more.

The irksomeness of labour depending so much more upon the species than upon the quantity as measured by time; and of labour, the same in species as well as quantity, the degree of irksomeness being so widely different to different individuals, in such sort, that a quantity of labour which to one man is highly irksome, shall to another be not merely indifferent, but highly agreeable;—quantity of labour forms but an imperfect and incompetent subject of mensuration.

There remains, therefore, money, as the only efficient cause of interest, and pecuniary interest as the only interest, the force of which, in the character of a mendacity-restraining or mendacity-promoting interest or motive, is commodiously measurable.

Yet, this measuring rule once obtained,—by reference to this (by means of the principle of commercial or commutative exchange) cases will happen in which the force of any other species of interest may by accident become susceptible of mensuration.

Thus, suppose two political situations affording honour or power (both or either,) without profit:—considering each by itself, it may be difficult to form any sort of estimation of the degree of force with which, in the character of mendacity-restraining or promoting interests, they may respectively operate upon the mind of a given person. But suppose them to have been, each of them, the objects of purchase and sale—the one having been bought and sold for £2000, the other for £4000:—in this case, the force of the interest constituted by them respectively is as susceptible of mensuration as that of an interest constituted by money.

For an injury done, or supposed to be done, the party injured prosecutes the supposed injurer. He knows beforehand, that (such is the course of practice) he will not, even in the event of his succeeding in the prosecution, receive satisfaction in any pecuniary shape: he understands, on the other hand, that the amount of the expense on his side is not likely to be less than £50. He prosecutes notwithstanding, and delivers his testimony. The interest by which he has been engaged to embark in this prosecution, is the interest created by that modification of the pleasure of antipathy, called the pleasure of revenge. Here, then, not indeed the exact force of that interest, but the minimum of it, is given, and expressed in money. It is certain that it acts upon him with a force at least equal to £50,—that is, to the apprehension of losing £50; since he pays £50 for the purchase of a chance of it. With how much greater a force, does not appear: since it does not appear how much more he would have spent in prosecuting, rather than not obtain the pleasure of the revenge.

There are five species of interest, to the action of all, or most of which, a witness is generally exposed: all concurring in exercising on his testimony a tutelary—a mendacity-and-falsity-restraining, influence; an influence such, that the stronger it is, the greater is his trustworthiness: acting consequently in the character of so many sanctions,* contributing, all of them, to bind him to the observance of the laws of truth. They are:

1. The fear of labour, or love of ease; produced by the difficulty of composing, for the occasion, and on the spot, a statement which, being more or less false, must, to answer any purpose that can be answered by falsehood, wear the appearance of being true. Corresponding sanction, the physical sanction, viz. the self-regarding branch.

2. The fear of shame; viz. of the shame, and consequent contempt or ill-will, which mankind in general are apt to entertain towards one who, on any such important occasion, is supposed to have willingly departed from the line of truth. Corresponding sanction, the moral or popular sanction.

3. The fear of punishment—legal punishment; viz. suffering, under the name of punishment, in general expressly attached, by the power of the law, to every departure, at least when wilfully made, on any such occasion, from the line of truth. Sanction, the political sanction.

4. The fear of supernatural punishment—of the punishment to be expected in case of every such transgression, at the hands of Almighty Power. Sanction, the religious sanction.

5. Regret at the thoughts of the evil, of which, at the charge of this or that individual or assemblage of individuals (the witness himself not included,) the transgression in question may be considered as more or less likely to be productive. Sanction, the sympathetic sanction; another branch of the physical sanction, the social branch.†

In the instance of sympathy, the direction in which it acts is far from being so uniformly and steadily on the tutelary or mendacity-restraining side, as that of any of the four preceding sanctions. In a cause of a purely criminal and penal nature, presenting a defendant thereby exposed to punishment, and no individual specially injured on the other side, and the witness satisfied of his guilt;—in this case, the action of this interest (supposing all the other tutelary and mendacity-restraining interests out of the question) would be solely on the mendacity-promoting side. In a suit between one individual and another (punishment out of the question, and nothing in dispute but money or money’s worth, claimed by one, and refused to be given up by the other,) love of justice, as well as all partial regard, out of the question, this interest could have no place on either side. Remains, as the only case in which this interest regularly joins its force to that of the other masses of interest above mentioned as constituting the four regularly acting mendacity-restraining sanctions, the case where, the suit being purely penal, the defendant was not guilty; i. e. does not present himself as being so, to the mind of the person whose testimony is considered.

Of the several sorts of interest mentioned in the table, there is not one that is not capable of acting on a man’s testimony in a sinister direction, that is, in the character of a mendacity-promoting interest.

Nor is there one to which it may not by accident happen to act in the opposite direction; that is, in the character of a mendacity-restraining interest, an occasional, casual, mendacity-restraining interest, acting in conjunction with the standing tutelary or mendacity-restraining motives above mentioned.

Nor is there, consequently, a sort of witness to whose testimony, in almost any sort of cause, it may not happen to be exposed to the action of any number of casual interests on either side, or on both sides.

All other circumstances being the same,—the greater the affliction of the party suffering by the testimony will be apt to appear in the eyes of the witness—and thence (unless in as far as any difference can be seen to have place) the greater it is in reality, i. e. in the eyes of the judge,—the greater the improbability of the testimony being mendacious.

1. One reason is, that the greater the suffering of the party against whom the testimony operates, the greater is the force with which, on a person whose individual character is unknown, one of the five mendacity-restraining sanctions—viz. the force of sympathy—may be expected to act.

Thus, in a criminal case, the punishment being capital, or in any other way ultrapecuniary,—it is less probable, that, by a pecuniary interest of a given magnitude, or by the interest of revenge, a man should be induced to aim at producing the conviction of an innocent defendant by false testimony, than if the affliction to the defendant were confined to a mere pecuniary loss, or any other punishment not beyond pecuniary.

2. Another reason is to be found in that love of justice, which, at least in a civilized state of society, may be considered as having more or less hold on every human breast.*

The criminal fact being by the supposition false, and, by the witness in question, known to be so,—the punishment (supposing the infliction of it produced by the testimony) will, by the supposition, be unmerited, unjust.

Were it not for this love of justice—the punishment about to be produced by the testimony, in case of its being mendacious, being the same—the disinclination to give in to the mendacity would be the same, whether in point of fact the charge were true or false, and the punishment, accordingly, merited or unmerited. But, of a disposition contrary to such indifference, the prevalence seems to be indicated by general experience.

To exert an influence on testimony,—an interest, be it what it may, acting in which of the two opposite directions it may, must exist (the idea of it as existing must at any rate be present to the mind) at the time of delivering the testimony.

If, at that time, a man does not stand exposed to the action of any interest urging in a sinister direction, it matters not to what interest acting in that direction he may have stood exposed at any former period. His testimony will not be a less correct or complete expression of the recollections presented by his memory at that time.

But, should that have happened which is very apt to happen, and which in almost all instances will have happened,—viz. that, antecedently to the judicial statement which a man makes on the judicial occasion under the authority of the judge, he has held discourse relative to the fact in question (whether in writing or vivâ voce) in the presence of any other person or persons;—in this case he has an interest in not delivering, on any judicial occasion, any such testimony as shall be irreconcilable with the antecedent discourse. This interest is, at any rate, the interest of his reputation: the motive for perseverance, the fear of shame: and to this must be added, in many cases, the fear of punishment; viz. of punishment which the falsehood may be a means of drawing down upon him, in case of a prosecution as for perjury, supported by the testimony of the persons in whose presence it happened to him to deliver, on that former extra-judicial occasion, a statement with which his present judicial testimony is irreconcilable.†

To the action of this interest a man stands exposed, whether the antecedent extra-judicial statement was true or false. If false, here, then, are two of the standing tutelary and mendacity-restraining interests—fear of shame and fear of punishment—acting by accident (one or both of them) in the direction and character of mendacity-promoting motives.

Not that in this case they act in general, either of them, with their whole force on the sinister side. For here, the testimony dictated by the fear of shame, with or without the fear of punishment, is, by the supposition, false and mendacious: it being false, the discovery of its falsity will, in a greater or less degree, be probable: and should such discovery eventually take place, then comes the shame and the punishment on that side.

Though it is only where present at the time, that an interest of any kind, acting in a sinister mendacity-promoting direction, can exercise any influence—produce any falsity, in the testimony; yet neither should the influence of any interest by which it may have happened to the testimony to have been acted upon at any antecedent period, be in every case disregarded. Supposing the witness not tied down by any antecedent extra-judicial statement as above, there is no interest prompting him to represent the matter in any other light than that in which it presents itself to his recollection at the time. But the influence of interest is not confined to the operation of delivering the testimony, nor to the point of time at which that operation is performed. At the time when the fact in question took place, it may have influenced, perverted, and partialized, the perceptions presented by it—the sort of cognizance taken of it: at any succeeding point of time, it may have influenced in like manner the recollection of it, the picture retained of it in the mind. For the will is on all occasions liable to be influenced by interest. Attention is in great measure at the command of the will: and by a partial direction given to the faculty of attention, conception and recollection are both capable of being rendered imperfect, and partial to one side.

On looking over the list of interests and motives, this or that one will be apt to present itself as being likely, upon an average, to act with greater force than this or that other. But there is no species of interest, the action of which has not, by the testimony of experience, been proved to be occasionally susceptible of every, or almost every, degree of force, from the lowest to the highest. In particular, there is none the action of which is not susceptible of a degree of force equal at least to that of pecuniary interest created by the greatest sum of money that has ever been depending upon a man’s evidence.

A consequence is, that from the mere observation of the species of the interest to which the action of a man’s testimony is exposed, no just inference can be formed respecting the degree.

Another consequence is, that neither on the number of interests and motives acting on the same side, can any such inference be grounded. For suppose half a dozen motives acting on one side, and on the other no more than one: in the instance of each of the half dozen interests, the degree of force may be so low, and at the same time that of the single interest so high, that the single one may preponderate.

This state of things is actually exemplified in the case of perjury for lucre. In the character of a seducing, a mendacity-promoting motive, the force of pecuniary interest preponderates over that of all the standing tutelary and mendacity-restraining motives—love of ease, fear of shame, fear of punishment, fear of God, sympathy for the injured: two, three, four, or all five of them, as the case may be.

If, from the action of five interests of as many different species on one side, while there is but one that acts on the opposite side, the inference of the preponderancy of the five over the one is not conclusive,—much less can the opposite inference be so—the preponderancy of the one over the five. On this subject, though no just inference, fit for the guidance of judicial conduct, can be deduced from numbers, yet if it were necessary to frame such an inference, the one nearest to truth would be that which should pronounce the chance in favour of the preponderancy of the five to be as 5 to 1.

As the conformity or disconformity of a man’s testimony to the line of truth, will, in relation to each distinguishable fact, depend upon the clear amount of the aggregate force of interest acting upon it in relation to that fact,—and that amount will depend upon the difference between the sums of the forces on both sides,—it is equally the business of the judge (in order to enable himself to form a right judgment concerning the credence due to the testimony,) to bring to light all those interests. To confine his consideration to any one of them, would be as effectual a means as he could employ, were it his desire to be deceived.

The testimony of every man being at all times exposed to the action of the tutelary, the mendacity-restraining interests, some or all of them,—while his being exposed to the action of any interest acting in a sinister direction—acting in the character of a mendacity-promoting interest, is but matter of accident,—it follows, that in the case of any given witness (antecedently to, or abstraction made of, his particular situation and circumstances,) truth is, in every part of his testimony, more probable than falsehood. The only interest he has, acts, on this supposition, on the side of truth.

On this supposition, the absence of mendacity, and even of bias, is on his part certain. The truth of his testimony would also be equally certain, were it not for the infirmities to which, in the character of a witness, the intellectual part of every man’s frame is liable;—viz. 1. Original mis-conception or non-perception; 2. Subsequent oblivion or mis-recollection; 3. Mis-expression.

So many different facts as there are, that it falls in a man’s way to speak of in the delivery of his testimony; to the action of so many different groups of interests may it happen to his testimony to be exposed.

A consequence is, that the testimony of the same man may be true in some parts, false and mendacious in others.

Where a man’s testimony is not exposed to the action of any interest acting in a sinister direction, he will have either no wish at all in relation to the event of the cause, or if he has any wish, it will be on the side of truth and justice.

If, at the same time that it stands exposed to the mendacity-restraining force of the tutelary interests, it is exposed to the force of any interest or group of interests acting in a sinister direction, his wishes will be on that side: and his testimony, if true, will pro tanto have run counter to the current of his wishes. If, at the same time, it is exposed to the force of any particular occasional interest acting on the same side with that of the standing tutelary ones, there will then be interest against interest; and his wishes will be on the one side or the other, according to the comparative force of the contending masses of casual interest.

When the testimony of a man is delivered, in a cause in which he is a party concerned in interest,—in respect of every fact which, to his eyes, presents itself as of a nature to exercise an influence on the event of the cause, his testimony is exposed to the action of interest in a sinister direction; and by whatever part of his testimony (if any) a fact is asserted, the tendency of which is to contribute anything towards causing the suit to terminate to his disadvantage, that part of his testimony runs counter to the current of his wishes. As often as this is the case (i. e. that a fact possessing such a tendency is disclosed by his testimony,) there is, in regard to every such fact so asserted by him, a certainty that the disclosure of it has not been brought about by the action of any sinister interest; and therefore, that, if not true, it is at any rate not believed by him to be false: and that the falsity (if there be any) is the result not of any sinister interest acting on the will, but of some infirmity (as above) the seat of which is in the intellectual branch of his frame. In so far, therefore, as the testimony a man gives is of a nature to operate to his disadvantage, it presents a stronger reason for its being regarded as true, than can be presented by testimony to the same effect by any other person. As far as a man’s testimony makes against himself, it produces naturally on the mind of the judge a stronger persuasion of its truth, than can be produced by the testimony of any extraneous witness.

To gain credence for a fact which, true or false, has been believed by the witness to be true,—instances have sometimes happened, where, by his testimony, he has deposed to facts, of the falsity of which he himself was conscious at the time.*

Hence another consideration, helping to show the weakness of the inference, that, because in one part of his testimony a man has been false, even to mendacity, therefore in all the other parts of his testimony he has also been false: the erroneousness of the rule, False in one thing, therefore in everything; or, Once false, and always false.

Without being mendacious, it may happen to a man’s testimony to be false; and that, too, even in consequence of the action of interest: this is the case of bias.

By the force of bias, understand the force of any interest acting on his testimony in a sinister direction, and in such manner as to produce, on the part of such his testimony, a departure from the line of truth, but a departure such as he is not conscious of.

Falsehoods produced by bias, are such, and such alone, of the falsity of which, he by whom the false testimony is delivered is not conscious at the time.

It is not every sort of falsehood that a man is capable of uttering, or at least apt to utter, without being conscious of.

The sorts of falsehoods into which a man is most apt to be led, are the following, viz.

1. Negative falsehoods; falsehoods consisting in the denial of some fact or circumstance which in reality took place.

A man’s attention is, in a great degree, at his command: which is as much as to say, under the direction of his wishes. What, on any account, he finds a pleasure—an unmixed pleasure, in attending to, he attends to of course: what it gives him pain to attend to (understand, a clear balance on the side of pain,) he withdraws his attention from; unless the pain produced by the perception be so great as to divest him of the command he possesses over his attention in slighter cases.

2. Falsehoods in degree; or, in other words, falsehoods of exaggeration: falsehoods respecting degree,—viz. in number, weight, or measure. Of the exact degree he has no recollection, of the correctness of which he is himself persuaded: if he has, the falsity is mendacity, not the pure result of bias. He is fearful of departing from the truth, to the prejudice of that side to which his wishes are attached: by this fear he is driven into an error on the opposite side—an error to the prejudice of the opposite side. Suppose the falsity consists in representing the degree greater than it is. Under the apprehension of representing it as less than the reality, he has represented it as being greater. The considerations which pleaded in favour of increase being conformable to the bent of his wishes, being agreeable to him, being sources of pleasure, the force of his attention was directed upon them, since it went to increase that pleasure. On the other side, pain being the consequence and accompaniment of the attention, the attention as naturally turned aside from it.

[* ]The word good, in as far as any precise signification is annexed to it, denotes indifferently either pleasure, or the negation of pain (present or future,) or whatever is regarded as a cause more or less probable of pleasure, or of the negation of pain, i. e. as a security against pain. Take away the ideas of pleasure and pain, you have the word good without a meaning: your good, if so you persist in calling it—your good, if such it be, is of no value. By a few obvious changes, this same account will serve as well for evil as for good.

[† ]Expectation of an event, is the persuasion, more or less strong, of its probability. Hope is expectation of good—fear, expectation of evil: in the import of each of these words, therefore, two distinct ideas—one of the persuasion, the internal judgment or sentiment—the other of the event, the exterior subject or object of the judgment, is included.

[* ]See the last Chapter but one of Book I.

[† ]These several species of interest are termed different species, not as corresponding to so many different species of pain or pleasure, but to pain or pleasure in general, considered as apt to flow from so many distinguishable sources.

[* ]This love of justice, commonplace moralists, and even a certain class of philosophers, would be likely to call an original principle of human nature. Experience proves the contrary: by any attentive observer of the progress of the human mind in early youth, the gradual growth of it may be traced.

Among the almost innumerable associations by which this love of justice is nourished and fostered, that one to which it probably owes the greatest part of its strength, arises from a conviction which cannot fail to impress itself upon the mind of every human being possessed of an ordinary share of intellect—the conviction, that if other persons in general were habitually and universally to disregard the rules of justice in their conduct towards him, his destruction would be the speedy consequence: and that by every single instance of disregard to those rules on the part of any one (himself included,) the probability of future violations of the same nature is more or less increased.—Editor.

[† ]Of the influence above spoken of in the text, the case of Elizabeth Canning, anno 1754, reported in the State Trials, affords a memorable example. Out of the knowledge of her friends, she had been absent from home for about a month, upon some love errand. On her return, being pressed by interrogations, she fabricated a story of her having been carried off for the purpose of violation to a house of ill-fame, a few miles from her abode in London; from whence, after being kept without food for weeks, in a manner almost miraculous, she at length made her escape unviolated. The story exciting public attention, two women were apprehended, and tried for their lives, as for having robbed her in that house, and one of them convicted. The story being a compound of improbabilities, the convict was respited; and in the interval, counter-evidence of the alibi kind presenting itself in abundance, she was prosecuted for perjury; and, after a trial of the unexampled duration of fourteen days, convicted: on evidence which—though at that time it divided the bench at the Old Bailey (composed chiefly of aldermena ) into nearly equal parts—leaves, at this time of day, not the smallest doubt. She was in consequence transported to America for seven years.

In this instance, by the force of one of the tutelary interests—fear of shame—the wretched woman was driven (we see) into an enterprise of murder against the lives of two innocent persons: as by the same impulse, so many unhappy women are every day drawn into a transgression, which, by a blind abuse of power, is devoted to the same murderous punishment, because, by an abuse of language, called by the same name.

[* ]To apply this to religion. In perhaps all religions there have been sham miracles performed, and false accounts of miracles never performed. But, from a man’s having joined in the performance of a sham miracle, or fabricated an account of a miracle known by himself never to have been performed, we are not to conclude that in each instance he has disbelieved the existence of miracles of earlier date, said to have been wrought under the same religion. These miracles (says he to himself) are true; but at the present conjuncture they do not produce that general conviction which it were so much to be wished they did. Let us aid the efficacy of truth by a pious and useful falsehood.

By whomsoever else such policy may be condemned, it can never with any consistency be condemned by any of those lawyers who, on such an infinite variety of occasions, and without any assignable specific use, have given invention, currency, or support, to so many pernicious falsehoods.

[† ]Of the influence above spoken of in the text, the case of Elizabeth Canning, anno 1754, reported in the State Trials, affords a memorable example. Out of the knowledge of her friends, she had been absent from home for about a month, upon some love errand. On her return, being pressed by interrogations, she fabricated a story of her having been carried off for the purpose of violation to a house of ill-fame, a few miles from her abode in London; from whence, after being kept without food for weeks, in a manner almost miraculous, she at length made her escape unviolated. The story exciting public attention, two women were apprehended, and tried for their lives, as for having robbed her in that house, and one of them convicted. The story being a compound of improbabilities, the convict was respited; and in the interval, counter-evidence of the alibi kind presenting itself in abundance, she was prosecuted for perjury; and, after a trial of the unexampled duration of fourteen days, convicted: on evidence which—though at that time it divided the bench at the Old Bailey (composed chiefly of aldermena ) into nearly equal parts—leaves, at this time of day, not the smallest doubt. She was in consequence transported to America for seven years.

In this instance, by the force of one of the tutelary interests—fear of shame—the wretched woman was driven (we see) into an enterprise of murder against the lives of two innocent persons: as by the same impulse, so many unhappy women are every day drawn into a transgression, which, by a blind abuse of power, is devoted to the same murderous punishment, because, by an abuse of language, called by the same name.

[a ]This absurd custom of putting aldermen in the commission, was continued by the 4 & 5 Will. IV. c. 36. As most of these gentlemen are engaged in trade, they are frequently absent attending to their own affairs, and then the public business is effectually stopped; for unless there are two commissioners present in each of the two courts, all the proceedings would be void. The rule is to have a real judge, who does the business, with an alderman sitting by his side, reading the newspaper.—Ed.