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• Rationale of Judicial Evidence.
• Book V.: —of Circumstantial Evidence.
• Chapter I.: Circumstantial Evidence, What—how Distinguished From Direct Evidence.
• Chapter II.: Of Probabilizing, Disprobabilizing, and Infirmative Facts—examples of Principal Facts, With the Corresponding Evidentiary Facts—improbability and Impossibility, How Distinguished From the Other Kinds of Circumstantial Evidence.
• Chapter III.: Of Real Evidence, Or Evidence From Things.
• Chapter IV.: Of Preparations, Attempts, Declarations of Intention, and Thrlats, Considered As Affording Evidence of Delinquency.
• Chapter V.: Of Non-responsion, and False, Or Evasive Responsion, Considered As Affording Evidence of Delinquency.
• Chapter VI.: Of Spontaneous * Self-inculpative Testimony, Considered As Affording Evidence of Delinquency.
• Chapter VII.: Of Confessorial and Otherwise Self-disserving Evidence, Extracted By Interrogation.
• Chapter VIII.: Of Confusion of Mind, Considered As Affording Evidence of Delinquency.
• Chapter IX.: Of Fear, In So Far As Indicated By Passive Deportment, Considered As Affording Evidence of Delinquency.
• Chapter X.: Of Clandestinity, Considered As Affording Evidence of Delinquency.
• Chapter XI.: Of Suppression Or Fabrication of Evidence, Considered As Affording Evidence of Delinqufncy.
• Chapter XII.: Of Avoidance of Justiciability, Considered As Affording Evidence of Delinquency.
• Chapter XIII.: Of the Situation of the Supposed Delinquent In Respect of Motives, Means, Disposition, Character, and Station In Life, Considered As Affording Evidence of Delinquency.
• Chapter XIV.: Posteriora Priorum—priora Posteriorum. Fact Indicated, a Prior Event; Evidentiary Fact, a Posterior Event In the Same Series: and E Converso.
• Chapter XV.: On the Probative Force of Circumstantial Evidence.
• Chapter XVI.: Of Improbability and Impossibility. *
• Chapter XVII.: Atrocity of an Alleged Offence, How Far a Ground of Incredibility. ‡
• Book VI: Of Makeshift Evidence.
• Chapter I.: Of Makeshift Evidence In General.
• Chapter II.: Of Extrajudicially Written Evidence.
• Chapter III.: Of Unoriginal Evidence In General.
• Chapter IV.: Of Supposed Oral Evidence Transmitted Through Oral, Or Hearsay Evidence.
• Chapter V.: Instructions Concerning the Probative Force of Extrajudicially Written and Hearsay Evidence. *
• Chapter VI.: Of Supposed Written Evidence, Transmitted Through Oral; Or Memoriter Evidence. *
• Chapter VII.: Of Supposed Oral Evidence, Transmitted Through Written; Or Minuted Evidence.
• Chapter VIII.: Of Supposed Written Evidence, Transmitted Through Written; Or Transcriptitious Evidence.
• Chapter IX.: Of Reported Real Evidence: I. E. Supposed Real Evidence, Transmitted Through Oral Judicial Testimony, Or Through Casually-written Evidence.
• Chapter X.: Of Evidence Transmitted Through an Indefinite Number of Media.
• Chapter XI.: What Ought, and What Ought Not, to Be Done, to Obviate the Danger of Misdecision On the Ground of Makeshift Evidence.
• Chapter XII.: Aberrations of English Law In Regard to Makeshift Evidence.
• Book VII.: Of the Authentication of Evidence.
• Chapter I.: Authentication, What. Connexion of This Subject With That of Preappointed Evidence.
• Chapter II.: Subject-matters of Authentication, What. Modes of Authentication In the Case of Real and of Oral Evidence.
• Chapter III.: Modes of Authentication In the Case of Written Evidence.
• Chapter IV.: Modes of Deauthentication In the Case of Written Evidence.
• Chapter V.: Distinction Between Provisional and Definitive Authentication. Rules For the Legislator and the Judge, Concerning the Authentication of Written Evidence.
• Chapter VI.: Aberrations of English Law In Regard to the Authentication of Written Evidence.
• Book VIII.: On the Cause of Exclusion of Evidence—the Technical System of Procedure.
• Chapter I.: Object of This Inquiry—its Connexion With the Subject of the Present Work.
• Chapter II.: Technical Or Fee-gathering, and Natural Or Domestic, Systems of Procedure, What?
• Chapter III.: Cause of the Vices of Technical Procedure, the Sinister Interest of the Judge.
• Chapter IV.: Particular Exemplifications of the Vices Introduced By the Fee-gathering Principle Into Technical Judicature.
• Chapter V.: List of the Devices Employed Under the Fee-gathering System, For Promoting the Ends of Established Judicature, At the Expense of the Ends of Justice. *
• Chapter VI.: First Device—exclusion of the Parties From the Presence of the Judge.
• Chapter VII.: Second Device—tribunals Out of Reach: Or, Swallowing Up the Inferior Courts.
• Chapter VIII.: Third Device—bandying the Cause From Court to Court.
• Chapter IX.: Fourth Device—blind Fixation of Times For the Oplrations of Procedure.
• Chapter X.: Fifth Device—sitting At Long Intervals.
• Chapter XI.: Sixth Device—motion Business.
• Chapter XII.: Seventh Device,—decision Without Thought; Or Mechanical Judicature.
• Chapter XIII.: Eighth Device—chicaneries About Notice.
• Chapter XIV.: Ninth Device—principll of Nullification.
• Chapter XV.: Tenth Device—mendacity-licence.
• Chapter XVI.: Eleventh Device—ready Written Pleadings.
• Chapter XVII.: Twelfth Device—principle of Jargon, Or Jargonization.
• Chapter XVIII.: Thirteenth Device—fiction.
• Chapter XIX.: Fourteenth Device—entanglement of Jurisdictions.
• Chapter XX.: Fifteenth Device—means of Securing Forthcomingness, Uselessly Divfrsified.
• Chapter XXI.: Sixteenth Device—creation of Needless and Useless Offices.
• Chapter XXII.: Seventeenth Device—sham Pecuniary Checks to Delay, Vexation, and Expense.
• Chapter XXIII.: Eighteenth Device—double-fountain Principle.
• Chapter XXIV.: Nineteenth Device—laudation of Jurisprudential Law.
• Chapter XXV.: Habitual Contempt Shown By Judges to the Authority of the Legislature.
• Chapter XXVI.: Opinion-trade.
• Chapter XXVII.: Extension of the Above Devices to Substantive Law, As Far As Applicable.
• Chapter XXVIII.: Remedies Suggested For the Above Evils.
• Chapter XXIX.: Apology For the Above Exposure.
• Book IX.: On Exclusion of Evidence.
• Part I.: On the Exclusionary System In General.
• Chapter I.: Exclusion of Evidence. Its Connexion With the Ends of Justice.
• Chapter II.: Disregard Shown to the Ends of Justice Under the Exclusionary System.
• Chapter III.: General View of the Mischiefs of the Exclusionary System.
• Chapter IV.: Dicta of Judges On the Exclusionary System.
• Chapter V.: Species of Exclusion.
• Part II.: View of the Cases In Which Exclusion of Evidence Is Proper.
• Chapter I.: General View of the Cases In Which Exclusion Is Proper.
• Chapter II.: Exclusion On the Ground of Vexation, In What Cases Proper.
• Chapter III.: Exclusion On the Ground of Expense, In What Cases Proper.
• Chapter IV.: Exclusion On the Ground of Delay, In What Cases Proper.
• Chapter V.: Exclusion of Irrelevant Evidence, Proper.
• Chapter VI.: Exclusion of the Evidence of a Catholic Priest, Respecting the Confessions Intrusted to Him, Proper.
• Chapter VII.: Remedies Succedaneous to the Exclusion of Evidence.
• Part III.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Ground of Danger of Deception. *
• Chapter I.: Cases Enumerated.
• Chapter II.: Danger of Deception, Not a Proper Ground For Exclusion of Evidence.
• Chapter III.: Impropriety of Exclusion On the Ground of Interest.
• Chapter IV.: Impropriety of Exclusion On the Ground of Improbity.
• Chapter V.: Impropriety of Exclusion On the Ground of Religious Opinions.
• Chapter VI.: Impropriety of Exclusion On the Ground of Mlntal Imbecility, and Particularly of Infancy and Superannuation.
• Chapter VII.: Of the Restoratives For Competency, Devised By English Lawyers.
• Part IV.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Ground of Vexation.
• Chapter I.: Vexation to Individuals Arising Solely Out of the Execution of the Laws, Not a Proper Ground of Exclusion.
• Chapter II.: Enumeration of the Sorts of Evidence Improperly Excluded On This Ground By English Law.
• Chapter III.: Impropriety of the Exclusion Put Upon Self-disserving Evidence By English Law.
• Chapter IV.: Inconsistencies of English Law In Regard to Self-disserving Evidence.
• Chapter V.: Examination of the Cases In Which English Law Exempts One Person From Giving Evidence Against Another.
• Part V.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Double Account of Vexation and Danger of Deception.
• Chapter I.: Impropriety of Excluding the Testimony of a Party to the Cause, For Or Against Himself.
• Chapter II.: Examination of the Course Pursued In Regard to the Plaintiff’s Testimony By English Law.
• Chapter III.: Examination of the Course Pursued In Regard to the Defendant’s Testimony By English Law.
• Chapter IV.: Impropriety of Excluding the Testimony of a Party to the Cause, For Or Against Another Party On the Same Side. Examination of the Course Pursued In This Respect By English Law.
• Chapter V.: Probable Origin of the Above Exclusionary Rules.
• Part VI.: Of Disguised Exclusions.
• Chapter I.: Exclusion of Evidence For Want of Multiplicity.
• Chapter II.: Exclusion By Limitation Put Upon the Number of Witnesses.
• Chapter III.: Exclusion Put By Blind Arrangements of Procedure Upon Indeterminate Portions of the Mass of Evidence.
• Chapter IV.: Exclusion By Rendering a Particular Species of Evidence Conclusive.
• Chapter V.: Of the Rule, That Evidence Is to Be Confined to the Points In Issue. ‡
• Chapter VI.: Of Negative Exclusions.
• Book X.: Instructions to Be Delivered From the Legislator to the Judge, For the Estimation of the Probative Force of Evidence.
• Chapter I.: Preliminary Observations.
• Chapter II.: Of Interest In General, Considered As a Ground of Untrustworthiness In Testimony.
• Chapter III.: Of Pecuniary Interest, Considered As a Ground of Untrustworthiness In Testimony. *
• Chapter IV.: Of Interest Derived From Social Connexions In General.
• Chapter V.: Of Interest Derived From Sexual Connexions.
• Chapter VI.: Of Interest Derived From Situation With Respect to the Cause Or Suit.
• Chapter VII.: Of Improbity, Considered As a Cause of Untrustworthiness In Testimony.
• Chapter VIII.: Of the Comparative Mischief In the Event of Misdecision, to the Prejudice of the Plaintiff’s Or of the Defendant’s Side.
• Chapter IX.: Ulterior Safeguards Against the Inconveniencies Which May Present Themselves As Liable to Arise From the Abolition of the Exclusionary Rules.
• Chapter X.: Recapitulation.
• Conclusion.
• Note On the Belgic Code.

CHAPTER VI.

OF INTEREST DERIVED FROM SITUATION WITH RESPECT TO THE CAUSE OR SUIT.

In every cause, each party (except in so far as it may happen to him to be a mere trustee, and not connected by any tie of sympathy with any party having a self-regarding interest in the cause,) each party has of course, in virtue of his being a party, some sort of interest in the cause: and, supposing him heard or examined in the character of a witness, the direction in which this interest acts (in so far as it acts with any sensible degree of force) will be in the mendacity-promoting line.

But, independently of legal forms (such as that which requires the concurrence of trustees who have no self-regarding interest, and perhaps no interest of sympathy, in the cause) it will frequently happen, that the interest which a man derives from his situation in the character of party in the cause—be it on the plaintiff’s side, be it on the defendant’s side,—will be practically imperceptible. This casual minuteness is, however, confined in a manner to the class of cases which exhibit a multitude of parties on the same side: for if a man stands alone, the fact of his subjecting himself to the vexation and expense incident to litigation, affords effectual proof, that the interest derived from his station in the cause possesses a magnitude sufficient to exert a real influence.

In general, the interest which the proposed witness thus possesses in virtue of his station in the cause, will be the only interest, except that of the standing tutelary interests, to the action of which his testimony will, on either side, stand exposed. But as it may happen to the testimony of any man in the station of extraneous witness, so may it to that of any man in the station of plaintiff or defendant, to stand exposed to the action of any number of casual interests, on either side, or on both sides; and these, each of them, in any degree of force. On any occasion, it may consequently happen, that the force of this standing mendacity-promoting interest shall be counter-balanced and over-balanced by casual interests acting on the other side,—that is, in conjunction with the standing tutelary ones. And to any such casually operating interest it may happen to apply to the whole of the party-witness’s testimony, or to any part or parts of it less than the whole; that is to say, one or more of the entire assemblage of facts comprised in it.

Out of this state of things, several anomalies will be apt now and then to arise; of the possibility of all which, it becomes the judge to be advised.

The interest which a party (be he defendant, be he plaintiff) has in the cause, will not, of itself, be sufficient to restrain him from giving false testimony to the prejudice of that interest, if there be any interest to a greater amount that acts upon him on the opposite side. There is no defendant, who, all other interests apart, would not yield to an unjust demand of £10, and even confess the justice of it, if by so doing he were assured of gaining £20. There is no plaintiff, who, all other interests apart, would not desist from a just claim to the same amount, and even confess the injustice of it, for the same recompense.

But, so far from being absolutely certain and uniformly efficient is even the united force of all the tutelary mendacity-restraining interests, that instances might be found in which the slightest casual interest (of the pecuniary kind, for example) acting in a mendacity-promoting direction, has been seen to overcome their united force. The proposition, therefore, which was true, reservation made of the influence of those tutelary interests, may still be given for true, even without any such reservation.

Of the several species and degrees of interest thus attached to the party’s station in the cause, there is scarce any one to which, by accident, it may not happen to find itself opposed by a stronger interest, acting in a mendacity-promoting direction, and overpowering it.

Feeble as interests of the social class generally are, in comparison with those of the self-regarding class, there is not of the self-regarding class any interest so high and strong as not to be liable to be opposed by an interest of the social class capable of overpowering it. Instances have been known in which delinquents have endured the very extremity of torture, rather than disclose their coadjutors. In England (till comparatively of late years) has existed a practice, in virtue of which, if a defendant in a capital prosecution, on being called upon to say, in general terms, Guilty or Not Guilty, forebore to answer, he was tortured to the very death: but, on condition of his submitting to this infliction, his property, which, in the event of his conviction in the ordinary way, would have been taken from his natural representatives by the king to his own use, was suffered to take its ordinary course. Instances (it is said) have not been wanting, in which men have thus submitted to death, preceded by the extremity of corporal sufferance, rather than expose the objects of their affection to that loss. In this case no falsehood was uttered, nothing at all being uttered; nor was falsehood, in any shape, conducive or necessary to the purpose. But, inasmuch as an interest of any degree of slightness will sometimes be sufficient of itself to overpower the united force of the standing tutelary motives, the supposition has nothing improbable in it, that, for the same purpose, in addition to the corporal agony, falsehood would not have been grudged.

In the case where men have suffered themselves to be tortured to death, rather than give up their companions in delinquency, falsehood must in general have borne a part. For, in all such cases, the defendant has, in course, been plied with questions; and an answer denying his having had any such companions will have been a much more natural result, than a confession of his having had associates, accompanied with a refusal to disclose them.

Even the tutelary interest created by religion, the religious sanction—notwithstanding the uniformity with which it acts, in opposition to mendacity, on all ordinary occasions—may (such have been its anomalies) be regarded, without any extravagant stretch of supposition, as capable of driving a man into this transgression, instead of saving him from it. In Denmark (it is said,) the country was infested by a set of religionists, in whose conceptions there was no road to everlasting happiness so sure as the scaffold; nor to the scaffold any road, on that occasion, so eligible as that of murder; especially if some child, within the age of innocence, were taken for the subject of that crime. If, in that case, instead of a blood-stained hand, a mendacity-stained tongue had been chosen as the more eligible instrument, the aberration from the line of reason and utility would hardly have been more wide.

The cases above brought to view are all of them out of the ordinary course of things: so much so, that there is none of them of which the existence ought to be presumed, or the supposition of it acted upon, unless the probability of the case be indicated by some special circumstance.

In the ordinary state of things, therefore, the following are the rules that may serve for expressing the comparative trustworthiness of self-regarding evidence:—

1. So far as it makes against himself, a man’s own evidence is the best evidence: more so than that of an extraneous witness.

For in this case, such part of his testimony as has this tendency (that is to say, so much of it as is understood by him to have this tendency) cannot, for anything that appears, have found any sinister interest to give birth to it. On the other hand, to prevent the utterance of it, had it been otherwise than true, there was the united force of the several tutelary sanctions, strengthened by the accession of the casual interest in question (whatever it be) that is at stake upon the event of the cause: self-preservation against death, if capital; pecuniary interest, if pecuniary and non-criminal; and so forth.

2. So far as a man’s testimony makes in favour of himself, it is inferior in trustworthiness to that of an extraneous witness not known to have an interest depending on the credence given to or withholden from the facts asserted in such his testimony.

The following cases, however, present themselves as so many exceptions to these rules:—

1. If the interest which the extraneous witness has at stake be of more value than that which the party has by whom the self-regarding testimony is delivered.

2. If, the interest being in both cases equal in value, the party by whom the self-serving or self-disserving testimony is delivered be in point of reputation upon a level superior to the ordinary level: the reputation of the self-serving or self-disserving extraneous witness being on the ordinary level, as is the case where it happens to be perfectly unknown to the judge.

3. If, the reputation of the party being at the ordinary level, the appropriate reputation of the extraneous witness is decidedly below it: as where it has already happened to him to be convicted of testimonial mendacity (denominated in most cases perjury.)

The sum at stake, and all other circumstances (as above mentioned) being equal in both cases,—the force of the interest will in general be greater upon a party testifying in the character of a witness, than upon an extraneous witness: and this on several accounts:—

1. In the instance of the party—the suit on which the money depends being actually on foot, and thus far in advance,—the money, if lost, will in general be sooner parted with, if gained, be sooner received,—than in the instance of the extraneous witness. But if, in this respect, it so happens that there is no difference, then this reason has no place in the account: if the difference is on the other side, then of course the reason operates on the other side.

2. Of a state of litigation, a degree of irritation is a natural, and almost a necessary, accompaniment. By the influence of this irritation, the party is already acted upon; the extraneous witness not yet. This is as much as to say, that the testimony of the party stands exposed to the action of two sinister interests, to but one of which that of the extraneous witness is exposed. If, then, so it happens, that the ill-will borne by the extraneous witness towards his antagonist is more intense than that borne by the party to his, this reason fails.

3. To the pecuniary loss necessarily resulting from the loss of the cause,—the loss resulting from the obligation of reimbursing to the winning party his share of the costs of suit, is a natural, though not an inseparable, appendage. In the instance of the party, this ulterior loss is already in immediate contemplation: in the instance of the extraneous witness, not so certainly: because, in the instance of the extraneous witness, it may happen that, no suit being as yet commenced, none will be commenced: for that the demand will either not be made, or will be acceded to without suit. But this reason also is liable to fail: viz. in the opposite case.

On this account (the sum at stake, and in that respect the strength of the temptation, being the same,) the improbability of mendacity will be less on the part of a party on either side of the cause, if there be no extraneous witness on that same side to that same fact, than on the part of an extraneous witness, if it be a fact that is not supposed to have come under the party’s cognizance.

The reason is, that, in the case of the party deposing in his own favour, there is, in case of mendacity, but one person to be reconciled to the wickedness, and that himself, without need of confession to any one else: whereas, in the case of the extraneous witness, there is a probability that the suit would not have been instituted or defended (as the case may be,) without a concert between the party and the extraneous witness supposed to be mendacious; which concert supposes, on the part of each partaker in the conspiracy, a confession made of his wickedness to the other; and besides the comparative improbability of it, such double wickedness affords additional chances of detection.

In the situation of party delivering his own testimony on his own behalf, it depends upon any man to originate the opportunity of employing, to a purpose chosen by himself, mendacious evidence; viz. by instituting the unjust demand, or hazarding the unjust defence, and then delivering his own testimony in support of it.

In the situation of extraneous witness, neither the demand is instituted, nor the defence determined upon, by the individual whose testimony is in question. Without the previous act of another person (viz. a plaintiff or defendant,) the advantage derivable to the interested testimony cannot be reaped.

In the case of a design to raise money by groundless demands, to be supported by mendacious evidence; a demand to be made by a plaintiff in the character of an informer (i. e. to gain a reward offered by the law, payable in the event of a delinquent’s being convicted of an offence,) presents a more natural and generally practicable mode of carrying into execution, by abuse of law, a plan of depredation to an unlimited amount, than a demand of money as due on account of any of the ordinary transactions between individual and individual: since a transaction of that sort can seldom have taken place without some special relation between the parties,—an incident not necessary in the other case.

As between plaintiff and defendant (to judge from the mere consideration of their respective stations in the cause, and nothing else,) in a cause where money is at stake, the probability of mendacity will be greater on the part of the defendant than on the part of the plaintiff.

The reason is, that, in the station of the defendant (the sum being in both cases equal,) the mendacity-promoting interest is constituted by the fear of loss: in the case of the plaintiff, by hope of gain to the same amount. And, sum for sum, as already observed,* the sufferance from loss is greater than the enjoyment from gain.

But this proposition does not take place, except upon the supposition that the case is such that the defendant has already been established in the habit of regarding the money as his own, the plaintiff not.

Suppose the strength of the persuasion in this respect equal on both sides, the seductive force of the interest will in this respect be equal on both sides: suppose the persuasion stronger on the plaintiff’s side, the strength of the mendacity-promoting interest will be greater on the plaintiff’s side.

Without pretence of title, conscious of his having none, Rapax has contrived to get possession of an article of property belonging to Humilis, confiding in his supposed inability to take upon himself, or to sustain throughout, the burthen of litigation. Circumstances intervening to disappoint the speculation, Humilis seeks his remedy notwithstanding. In this state of things, though, at the commencement of the suit, the subject-matter was in possession of Rapax defendant, yet, though he lose the cause, his condition will be, not that of a man who has sustained a loss, but that of a man who has miscarried in his pursuit of a gain: while that of Humilis, in the event of his failing in his demand, will be not merely that of a man who has miscarried in the pursuit of a gain, but that of a man who has been struck by an unexpected loss.†

[* ]Supra, p. 575.

[† ]In the above case, by the supposition, Rapax is the wrong-doer, Humilis the party injured, and conscious of his being so: a particular supposition naturally included in that general one, is, that of his being persuaded of the truth of the facts to which he deposes: in which case—though subject to the action of an interest promotive of mendacity, had he been in a condition to stand in need of such criminal assistance,—yet, not (by the supposition) standing in need of it, the epithet mendacity-promoting may appear unsuitable to the case.

But this particular case, though naturally, is not necessarily, included in the general case. Though fully, and with perfect reason, persuaded of the general rightfulness of his cause—of his demand, or his defence, whichever it be,—it may happen, that this or that particular fact to which he deposes shall be not only untrue, but fully understood by himself to be so. Consideration had of the weight of the evidence on the other side, it may appear to Humilis that the cause, though altogether just, may stand in need of an apposite falsehood for the support of it. Whether such support will be given to it or no, depends upon the disposition of Humilis: upon the proportion between the force with which the mendacity-restraining interests (the tutelary sanctions,) and the force with which his interest in the cause, is acting on his mind at that same time: and to have been, on a particular occasion, innocent and injured, is an accident which is just as capable of happening to a man of the worst disposition, as to a man of the purest virtue.