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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 III.

OF PECUNIARY INTEREST, CONSIDERED AS A GROUND OF UNTRUSTWORTHINESS IN TESTIMONY.*

In estimating the force of a pecuniary interest in its action upon the testimony of a man whose character in respect of probity is not taken into consideration, two main points are to be considered:—

1. The value of the respective interests in themselves.

2. The pecuniary circumstances of the person.

In estimating the value of a pecuniary interest, four points are to be considered:—

1. The magnitude of the sum by which it is represented.

2. The value of it in respect of time; i. e. according as it is in possession or not in possession.

3. If not in possession, the value of it in respect of certainty, according as the interest is vested, or the possession depending for its commencement upon contingencies.

4. The duration of it: in respect of which (in so far as the interest is represented by a sum of money) perpetuity, unless anything be specified to the contrary, is supposed.

In whatsoever shape the property creative of the interest happens to be—where (for the purpose of comparison with another interest) any correct estimate is to be formed of it,—it must, if not already existing in the shape of a sum of money, be reduced to that shape.

The value, and consequently the mendacity-promoting force, of a pecuniary interest, the money not being in hand, is less and less, in proportion as the time at which it is to be in hand is more and more distant:

So (the time at which, if at all, it is to come in hand, being given,) in proportion as the event of its coming in hand is more or less uncertain; i. e. in the proportion between the number representative of the chances against its coming in hand, and the number representative of the chances in favour of its coming in hand.

In regard to uncertainty, a distinction must be noted between the case where the event depends merely upon physical causes, not depending in ordinary cases upon the will of man (such as the death of Titius before that of Sempronius;) and the case where it depends wholly or partly upon moral causes (such as the will of Titius or Sempronius.) In the former case, the interest will in general have a rateable value; and the force of it may be rated at the sum which, if sold, it would (as supposed) produce. In the other case, it cannot, generally speaking, have any rateable value; and yet the force of it, when acting upon testimony, may be little different from that which it would act with, were the receipt of the sum regarded as not subject to uncertainty.

Suppose a son, the only child of his father, the father a widower, and beyond the age at which it is usual for men to marry, or, if married, to beget children: the estate of the father at his own disposal, not assured to the son by law: of the disposition of the father, in respect of amity towards the son, nothing known, therefore amity to be presumed. At market, the interest of the son in the property in possession of the father (he not joining in the sale) would not be saleable. Yet, suppose the title of the father to the whole estate to be in dispute, and the son examined as a witness: the force with which the mendacity-promoting interest created by the value of the estate, acted upon his bosom, would not be in this case materially less than what it would be had the estate been assured to him by law,—viz. to be received by him after and upon his father’s decease.

In like manner (even setting aside whatever interest might in this case be constituted by the tie of sympathy,) the force with which their respective interests in the estate acted on their respective bosoms, would not, in the bosom of the son, he diminished by a sum so great as the sum representative of the value of the estate for and during the father’s life; inasmuch as, during the life of the father, the son is naturally a sharer in the advantages attached to the father’s property, notwithstanding the legal dependency of the quantum of that share upon the father’s pleasure.

In a rough way, and even in a way sufficiently adapted to divers other purposes, the state of a man’s circumstances may be expressed by the difference between the saleable value of his property in hand, and the sum of the debts (including pecuniary obligations of all sorts) to the discharge of which he stands bound.

But, for the purpose of estimating the seductive force with which a given mass of pecuniary interest may be considered as acting on a man’s testimony, several other circumstances will require to be taken into account, viz.—

1. The state of his pecuniary circumstances in respect of present exigency or the proportion between present need and present means: and this, whether the sum in question be needful for the purpose of procuring greater profit, or of saving him from greater loss. Remember, to this purpose, the story of Esau, who, under the pressure of hunger, sold his birth-right for a mess of pottage.

2. Proportion between his exigencies, in respect of domestic relations, and his pecuniary means; according as the effect of such relations is to charge him with pecuniary obligations, or to afford him pecuniary support. Whether the proposed witness be of the one sex or the other; be unmarried or married; be childless or have children, and in what number, and whether arrived or not arrived at a state of self-maintenance; whether they be respectively of that sex which has fewest wants and most resources, or of that which has most wants and fewest resources; with what other relations (if any) in any of the lines of natural relationship, descending, ascending, or collateral, the witness has any connexion, contributing, as above, to augment the sum of his resources on one hand, or that of his exigencies on the other.

3. Proportion between his pecuniary means (viz. the clear amount of them, after addition of the amount of domestic supplies, and deduction of the amount of domestic charges, as above,) between his pecuniary means thus explained, and his exigencies (if any) in respect of political station in life: since, of two persons with the same quantum of clear pecuniary means—one, low in rank, may be in a state of affluence—another, high in rank, in a state of indigence.

4. Habitual rate of expense is not in this respect altogether without its influence. Two men, in pecuniary circumstances in every respect equal—the one habitually spending his whole income, the other but the half of his,—a sum to a given amount, whether coming in, in the shape of extraordinary gain, or going out, in the shape of extraordinary loss, will be apt to find the testimony of the non-saving man more sensible to its influence than than that of the saving man.

For the guidance of the judge’s mind, in the formation of his estimate of the trustworthiness of the deponent’s testimony, it will in most cases not be worth while for him to subject either the deponent or himself (not to speak of extraneous witnesses) to the vexation attached to a chain of investigation thus particular and intricate. But there are cases in which it may: and since it will often happen that, of the above particulars, a number more or less considerable will come to light in the course of the cause, as it were of themselves, or without any trouble worth regarding,—on this account it seems desirable that the influence of them should be habitually present to the mind of the judge.

The sum in question—and a man’s sensibility to pecuniary induence, in so far as it can be collected from circumstances of an external nature (as above,)—being both given—the influence of the same sum will be greater—much greater, in the case of its going out of hand, in the shape of antecedently unexpected loss, than in the case of its coming into hand, in the shape of antecedently unexpected gain.

Value of a man’s property to-day, say £1000: sum at stake upon his testimony, £500. Let this sum be taken from him to-morrow,—the amount of his property to-day is twice as great as what it will be to-morrow. But let this same sum be given to him to-morrow,—the value of his property to-morrow will not be twice as great as it is to-day.

But suppose that it even were twice as great: the matter of wealth is of no value, but in proportion to its influence in respect of happiness. Multiply the sum of a man’s property by 2, by 10, by 100, by 1000, there is not the smallest reason for supposing that the sum of his happiness is increased in any such proportion, or in any one approaching to it: multiply his property by a thousand, it may still be a matter of doubt, whether, by that vast addition, you add as much to his happiness, as you take away from it by dividing his property by 2, by taking from him but the half of it.

In many instances there will be a difficulty in deciding, in the case of receipt of money, whether it be to be placed to the account of gain, or of exemption from loss: and, in like manner, in case of disbursement, whether to the account of loss, or of non-receipt of gain. Of this difficulty, when it occurs, it concerns the judge to be aware: but there are many instances in which it has no place.

[* ]If the slight sketch, in the way of instruction, here given, be of use with reference to the present purposes, so will it for the purpose of divers other operations performable on the field of judicature: as, for example:—

1. Liquidation of the quantum of punishment, when (in part or in whole) pecuniary.

2. Liquidation of the quantum which, in the name of satisfaction for loss, with or without injury, a plaintiff ought to receive.

3. Liquidation of the quantum which, on the same score, a defendant ought to be compelled to pay.

For, on this ground, the views of the judge will be incomplete and partial, if (where the importance of the cause warrants it, and the difference of circumstances is considerable) the circumstances on both sides be not taken into the account.

4. Adjustment of the pecuniary burthen proper to be occasionally imposed on parties, extraneous witnesses, or third persons, in the course of procedure, rather than that failure of justice or misdecision should take place. See Book IX. Part II. Cases in which Exclusion is proper; Chaps. II. and III. Vexation and Expense.

On all these accounts taken together, a complete and carefully constructed set of instructions on this head would, in every code of procedure, be a fit and useful, not to say a necessary, document.

The present pretends to no other character than that of a sample, and imperfect outline.