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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 IV.

OF INTEREST DERIVED FROM SOCIAL CONNEXIONS IN GENERAL.

Gain or loss may be expected either from the compulsory operation of law, or from the uncoerced conduct of individuals.

The value of the sum at stake being given, and the degrees of proximity and certainty respectively attached to the receipt or loss of it being given,—whether it be from the dispensations of law that the assurance of acquisition or loss is derived, is a question, the answer to which makes (it is evident) no difference in the value of the interest, nor thence in the force with which it is likely to act upon testimony in the character of a mendacity-promoting or mendacity-restraining motive.

If (in respect of the value of the interests created, and the force with which they respectively act upon testimony) acquisition and loss, when considered as resulting from the dispensations of law, are in general superior to acquisition or loss to the same amount when expected from causes with which law does not interfere,—this superiority is far from being constant or universal. Of the operations of law the effect can never be so prompt as the effect of operations in which the law has no concern is in many instances. And, how necessary soever the coercive and protective force of law may in general be, to the giving to men’s possessions a degree of certainty not derivable from any other source,—yet, in many instances, acquisition or loss, looked to from this or that source, will appear to a particular individual still more certain, as well as prompt, than any acquisition or loss to the same amount that could have been expected by him from the hand of law.

For years together a journeyman has been employed by the same master at a guinea and a half a-week: from any other master he would not expect to get above one guinea a-week: it is in the power of the master, any Saturday evening in the year, to break off all connexion with him on paying him the guinea and a half for his week’s work. Says the master to the journeyman, On Friday next you are to appear in such or such a court: if, on that occasion, you do not give testimony to such or such an effect, the wages you receive the next day will be the last wages you ever receive from me. Who does not see that the force with which a threat to this effect acts on the testimony, will be greater than if, in the event of his giving a testimony opposite to that required of him as above, he were to incur a legal debt to the amount of twenty-six guineas (a year’s extra wages,) he not being destitute of the means of paying it?

Vary the case, by substituting for employer and journeyman, customer and dealer: both of these in the condition of masters: the result, in respect of the action of the interest on the testimony of the witness, will not be materially different.

Let the event, on which the supposed debt of twenty-six guineas attaches upon the journeyman, be this,—viz. that of the master’s gaining the cause. Here, then, is an apparent interest, appearing to act upon the witness in such manner as to incite him to testify against his master, though it were at the expense of truth; while yet, in fact, he is incited to testify in favour of his master, by an opposite interest, which, though perhaps not apparent, is much stronger than the apparent one.

Ties of this sort are alike obvious and numerous. In point of force—even supposing the interest created in each instance to be a mere pecuniary interest, unfortified by any mixture of sympathy—it is no more susceptible of any determinate limits than the interest constituted by a liquidated sum payable on the spot. If, then, to the exclusion of these less conspicuous but not less powerful ties, the judge were to keep his eye fixed on the interest constituted by a liquidated pecuniary sum, he would be in a way to be continually deceived.*

If, in the cases where it is thus, as it were, latent and unconspicuous, the single force of pecuniary interest is capable of rising to a level with any to which a conspicuous interest of the same kind is usually wont to rise,—much more is it where it happens to it to be corroborated by the force of sympathy.

In this situation, in the ordinary state of things, are to be found the several descriptions of persons who stand connected with others by the ties of natural relationship:—

1. The child, with reference to the father, or mother, or both.

2. Any person junior in age, by whom expectations are entertained from the bounty of a relation senior in age; whether in the simple ascending line (as grandfather or grandmother,) or in the double or collateral line (as uncle or aunt in any degree, or their descendants in any degrees.)

Exclusive of the complex interest composed of a mixture of pecuniary interest and natural sympathy, is the interest which has place where the one of the parties is subject to the direction and government of the other.

The case in which this sort of interest is capable of existing in its purest state, unmixed with any of the other interests that are so naturally connected with it, is that which, in the bosom of the ward, is created by his dependence on the guardian. Pecuniary interest, howsoever accidentally combinable with it, belongs not to the case: and as to sympathy, if it be a natural accompaniment, neither is antipathy an unnatural one: at any rate, if it be supposed that upon an average there is a balance on the side of sympathy, it cannot be supposed that this balance can in its amount approach near to that which has place in the more ordinary case, where the relationships of guardian and parent are combined in the same person.

Now the interest created by dependence on natural domestic power,—of what is it composed? Of the fear of pains of many kinds, added to the hope of pleasures of most kinds.

The interest capable of being created in the bosom of the domestic subordinate, by his dependence on his correlative superordinate, is so obvious, as scarcely to require mention, though it were only in the way of memento.

The interest capable of being created by the same relationship in the bosom of the superior,—this interest, howsoever obvious, is somewhat less obvious than the interest created in the correlative and opposite case.

In general, and throughout the circle of domestic relationships, the social interest—the interest of sympathy, is apt to exist in greater force in the bosom of the superordinate, than in the bosom of the subordinate—in the bosom of the parent than in the bosom of the child; and so on through the string of more and more distant relationships, which are, as it were, the images, fainter and fainter the oftener they are transmitted or reflected, of the relationship betwixt parent and child. Of this disparity, the cause is to be found in the pleasure of power peculiar to the parent, and in which the child, though the source of it, has no share. If in this or that instance the balance be reversed, the cause is to be looked for partly in the superior sensibility of youth, partly in the idiosyncratic temperament of the individual.

But besides this social interest, the relationship of the superior to the subordinate is susceptible of giving lodgment to an interest of the self-regarding kind, which must not be overlooked. In the case of parent and child, the superior stands bound by a variety of ties to make provision for the sustenance of the subordinate. But, the more of his sustenance the child draws from sources other than the pecuniary funds of the parent, the less is the quantity by which it is necessary he should diminish the amount of these funds. As often, therefore, as money is at stake in a suit to which the child is party, and the parent a witness,—the interest to the action of which the testimony of the witness is exposed, adds to the universally-operative social interest an interest strictly pecuniary, an interest of the self-regarding kind. And so, in regard to all persons standing in this respect in the place of parents: allowance being made for the comparative faintness of the obligation, legal or moral, in their respective cases.

An interest exerting its influence on testimony, is alike capable of being created by the hope of good, and by the fear of evil. On many occasions, the object being given, hope and fear looking to that object run into one another, and are undistinguishable: for when a good of any kind has been habitual in a degree sufficient to keep up expectation of its continuance, it is difficult to say to which of the two denominations, hope or fear, the expectation entertained in relation to it ought to be referred in preference—to the hope of retaining, or to the fear of losing it. In a more particular degree, the observation holds true in regard to that particular species of good, which is composed of, or has for its efficient cause, the matter of wealth: money, money’s worth, and whatever may be to be had by means of money.

Here and there, perhaps, a mass of interest may be found, consisting of the fear of evil, without any hope of good—a mass of interest having no connexion in any way with the matter of wealth. Suppose two persons in office, military or unmilitary; the one, to some purposes, under the direction of the other; from the favour of the superior, the inferior is not in the habit of deriving, nor in the way to derive, money or money’s worth: on the part of the inferior, therefore, the fear of evil (if it exists) exists in a state of relative purity, unmixed with the hope of good. Suppose, then (what is generally the case,) that without committing himself in any way (i. e. without subjecting himself in any degree to legal punishment, or even, to appearance at least, to any certain and decided portion of shame,) it is in the power of the superior to inflict habitual vexation on the other: the force of this vexation, is the force with which the will of the superior is capable, in an influential way, of acting on the conduct of the inferior, on any such occasion as that of delivering testimony, as well as on any other.

Let the degree of vexation thus producible be such, that whereas the official emolument of the inferior is equal to £100 a year,—to rid himself of this vexation, he would be content to render, under another superior, the same official service for £20 a-year less. On this supposition, the non-pecuniary interest by which the testimony of the inferior may be acted upon in any direction, proper or sinister, is equal to a pecuniary interest constituted by the eventual assurance of a loss (he having the means of sustaining it) equal to the present value of an annuity of £20 a year for his life; at twelve years’ purchase, say £120.

In the case of these several relationships, comparison being made between sympathy and antipathy,—sympathy will naturally be regarded as the sort of affection predominant, on an average: the balance of such affections as are not of a self-regarding nature, will naturally be looked for on that side, and as adding its force to whatever may happen to be exerted by the pecuniary interest, and the other self-regarding ones.

But it would be a gross oversight, and a copious source of deception to the judge, if (to the purpose of judging of evidence, or to any other purpose) he were to be altogether unaware of the casual predominance of the dissocial affection of antipathy, even between the nearest relations. On a variety of occasions which force themselves upon his view, he beholds the marks and fruits of their antipathy in the suits to which they are the contending parties: and well may he conceive that the cases in which the antipathy thus manifests itself, form but a part, and that a small part, of those in which it exists, and that in a degree capable of exercising on testimony a sinister influence.

The inference, therefore, which is to be grounded on the several relations, domestic and political, is,—a general presumption of mutual sympathy—stronger or weaker according to the nature and degree of the relationship,—but, on every occasion, liable to be rebutted by special evidence.

[* ]In virtue of the existing exclusionary rules, this state of constant deception has been, time out of mind, the lot of English judges. But, the mischief falling exclusively upon the party in the right, while the advantage of it is shared between the party in the wrong and the firm in which the judges are the acting partners, no deception (it has been seen) was ever submitted to with a more unruffled acquiesence.