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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 VII.

OF IMPROBITY, CONSIDERED AS A CAUSE OF UNTRUSTWORTHINESS IN TESTIMONY.

On the present occasion, the object is, to determine, with what degree of assurance expectations of mendacious testimony in the cause in hand can with propriety be grounded on moral improbity in its several shapes, and in particular in the shape of testimonial mendacity, as manifested on some former occasion or occasions.

Though all men are not liars (at least on occasions so important as those of judicial testification,) yet in that situation all men are almost continually exposed to the temptation of becoming so.

Supposing it certain, that, at the time in which the witness is delivering his testimony, he is not exposed to the action of any mendacity-promoting interest,—it is equally certain, that improbity (in whatsoever shape or degree his disposition be stained by it,) cannot exert any sinister influence on his testimony; that mendacity—wilful and intentional mendacity—is no more to be apprehended from him, than from the most virtuous of mankind; and that, in respect of trustworthiness, between the one and the other the only difference is, that, in consequence of the habitual influence of the tutelary sanctions, the virtuous man will apply himself to the giving to his testimony that completeness as well as correctness of which it is susceptible, with a degree of solicitous attention, which in the case of the profligate man will find a substitute in indifference.

But it is seldom that any such certainty either presents itself, or can by any scrutiny be acquired.

One case there is, in which the opposite certainty presents itself: that is, where the person whose testimony is in question is a party in the cause: which conspicuous interest is, however, by accident, liable (as before observed* ) to be counter-balanced and even outweighed by other and stronger latent interests acting on the other side.

Another case is, where, though not a party, he has a known and manifest interest in the event of the cause.

In all cases, whether he have or have not any manifest interest in it, he is liable to be exposed (as well in the mendacity-promoting as in the mendacity-restraining direction) to the action of latent interests, of any nature and in any number.

Suppose the point ascertained, that the individual in question (at present an extraneous witness) cannot be under the action of any sinister interest, unless the impulse has the suborning solicitations of the party for its source,—in such case, if the party be regarded as incapable of seeking to exert any such sinister influence, the probity of the party operates on that supposition as a security, and that an effectual one, against the improbity of the witness.

By this circumstance, in so far as it has place, the probability of mendacity is, it is evident, diminished: but what is equally evident is, that it is not altogether done away.

From past improbity, established by any manifest and notorious inquiry—from past improbity, though, to indicate the disposition, there be no more than a single act,—mankind are apt enough to predict, and infer with sufficient assurance, the manifestation of the like disposition on any individual occasion that presents itself. If on this head instruction be needful to the judge, it is not so much for the purpose of pointing out to him the inference, as for the purpose of putting him upon his guard against the propensity to allow it to take a stronger hold on the mind, than, upon an attentive consideration, it would be found entitled to possess.

Of the testimony of this or that person, on whose part improbity (in the shape of mendacity, or even in other shapes) is supposed to be notorious, it has been a common expression to say, It is entitled to no credit whatsoever,—or, No regard whatsoever ought to be paid to it. Applied to judicial testimony, the impropriety of any such proposition, will, on a more attentive consideration, be found (it should seem) undeniable. And this, not only because falsehood, known falsehood, is frequently a key as well as a guide to truth; but because, everything depending upon interest, a man of the most depraved character, of whom it could be ascertained that he was not under the action of any sinister interest, would with more safety be depended upon, than an average man deposing under the action of any interest, the magnitude of which could, reference being had to his situation, be pronounced considerable.

In a general point of view, and denoted by the concisest expression that can be found for it, the degree of probity habitually manifested in the disposition of a human being, will be directly (and that of improbity inversely) as the force habitually exercised upon it by the permanent tutelary interests and motives so often spoken of, in comparison with the force habitually exercised upon it by the seductive interests and motives.*

As it is only through the medium of the habitual frame of mind, that any indication can be drawn from past acts, relative to the present frame of mind or disposition of the witness, and thence relative to the probability of a departure on the part of his testimony from the line of truth,—it concerns the judge to look, in the first instance, to the habitual frame of mind, and in that view alone to have regard to any individual act.

One practical use of this caution is, to preserve him from deducing too strong a persuasion from some single act, as established by some conspicuous proof, and not deducing a persuasion sufficiently strong from habit, i. e. repeated acts, as established or indicated by proofs or tokens less conspicuous.

By a judicial conviction (of theft, for example,) improbity on the part of the convict (viz. the degree of improbity necessary to the commission of such a crime) is established by proof of the most conspicuous kind. But, however conspicuous the proof, no stronger presumption is afforded of a frame of mind habitually disposed to the commission of that crime, than what is capable of being afforded by one single act.

On the other hand, suppose it established in the mind of the judge, to a degree of probability sufficient for this purpose, that to another witness, Furfur, it had twice happened to have been detected in a theft, to about the same amount as that of which the first thief, Fur, was convicted; but that, through the lenity of the party injured, or some other accident, conviction had in both instances been escaped. In the case of Furfur, it is evident that, though evidenced by proof less conspicuous, the ground for suspicion is decidedly stronger than in the case of Fur.

From proofs of so conspicuous a nature, if exclusively attended to, the conclusion liable to be drawn would be more apt, perhaps, to afford fallacious lights, than true and useful ones.

Furfur is a depredator by profession: depredation, in one shape or other, has been his habitual source of subsistence: he has had no other. Fur has been convicted of a single act of depredation once committed. Whatsoever indication of future testimonial mendacity may be to be collected from past delinquency in the line of depredation, is evidently many times as strong in the case of Furfur. But, in the judicial memorials of the respective prosecutions—unless (what in England has never yet happened) the difference in this respect have been brought to view—both documents, and assuredly that which exhibits the case of Furfur, will to the purpose have been incomplete, and thence liable to be fallacious.

Superior magnitude of the punishment in the one of two cases of depredation, as compared to the other, is another indication, which, by being conspicuous, is but the more liable to be fallacious. Proper or improper upon the whole, it is natural and frequent for depredation, in whatever shape, to be made punishable, upon a scale rising in some proportion with the value of the article which has been the subject-matter of the offence. With a view to one of the ends of punishment (viz. prevention,) the difference has this obvious use,—viz. its tendency to lead the delinquent to the desire of the less mischievous of two offences, in preference to the more mischievous. But, if in this case any such inference be drawn, as that, because the depredation to the greater amount is punished with the greater punishment, therefore, as between Fur Magnus who has been punished with the greater punishment, and Petty Fur who has been punished with the lesser punishment, the probability of testimonial mendacity on the occasion in hand is greater in the instance of Fur Magnus than in the instance of Petty Fur, the conclusion would be more likely to be crioneous than just; for, the greater the sum stolen, the stronger the temptation: and because a man’s probity has sunk under the stronger temptation, it follows not that it would have sunk under the weaker.

With regard to the probability of testimonial mendacity on the given occasion (as indeed with regard to improbity in most other shapes,) indications much more conclusive may in many instances be drawn from factitious consequences foreign to the nature of the transgression, than from the nature of the transgression itself, even if known in all its circumstances. Maculatus (at the time of his only offence, not a professional depredator) has, in virtue of his punishment, in the choice of which reformation was not so much as aimed at, been confined for years together in the company of a promiscuous and uninspected herd of professional depredators. Furfur, convicted of a theft to the like amount, has, during the same space of time, been confined in a state of constant occupation, either in solitude, or under an unremitted course of inspection in assorted company. Whatever be the indication, deducible from depredation, of the probability of improbity in a shape so different as that of testimonial mendacity,—it seems evident that, in the case of the ever solitary or constantly inspected convict, the strength of the indication can never be nearly equal to what it is in the case of the convict kept for the same length of time in a state of corruptive pupilage.

No anomaly of which moral conduct is susceptible, ought to be altogether strange to the conception of the judge. Presenting itself in a specific shape, temptation has been known to overpower the force of the improbity-restraining motives, in a mind on which, presenting itself in the general shape of money (though to appearance in much greater force,) it would have made no impression. Those who, for any purpose (for a negotiation of any kind, unlawful or lawful,) have to deal with gross and uncultivated minds, have frequent occasion to observe, that by money presented in the specific shape of liquor, a much greater effect may frequently be produced, than by the same quantity of money presented in its own genuine shape. In a higher sphere, many a man, whom a mass of uncounted money to a hundred times the value would have found temptation-proof, has felt his probity sink under the temptation presented in some specific shape peculiarly adapted to his taste and fancy: some choice and not readily obtainable production of art or nature—a gem, a manuscript, a tulip-root, or a cockle-shell. Standing in a witness-box, a much more beautiful and choicer gem, parchment, root, or shell, would have been repulsed with horror, if presenting itself as the price of a deliberate departure from the line of truth. Yet, in a book presenting a general list of convicts, or even in the memorial made of the conviction of this particular individual, it might happen that the case and character of this man should remain undistinguishable from the case and character of the professional malefactor, accustomed from infancy to behold in the habit of depredation the only source of his subsistence.

Whatsoever be the degree of improbity indicated by the past act or habit,—with reference to the testimony in hand, the indication afforded by it of probable testimonial mendacity will naturally act with a particular degree of strength, where, on the past occasion, the shape in which it showed itself was that same shape; viz. that of an act or habit of testimonial mendacity.

The reason is, that in this case it serves as an indication not merely of improbity (a weak and vicious state of the moral part of the man’s frame,) but such a state of the intellectual part as hath disposed him to employ, and (according to his own conception at least) qualified him for employing, this particular sort of instrument (mendacity) for the compassing of his sinister and immoral ends.

To be able to frame a false story, capable not only of passing muster in the first instance, but, upon occasion, standing whatever scrutiny is in a way to be applied to it by means of counter-interrogation and counter-evidence, requires a sort of intellectual firmness and vigour, the degree of which—howsoever it may happen to be employed in the service of the sinister interests—has no connexion with their comparative strength and influence. By setting fire to a crowded fleet of ships, or by drawing up a sluice, and so laying a whole town or province under water, a man may produce an abundantly greater quantity of mischief than has ever been produced by an act of testimonial mendacity: but a man who on a former occasion has thus employed fire or water as an instrument of mischief, will not be so apt on a second occasion to employ a mendacious tongue for a purpose of the like nature, as one who, for the like purpose, has already made choice of the same living instrument.

Where, on the former occasion, testimonial mendacity was the shape in which the improbity manifested itself,—indications respecting the probability of testimonial mendacity in the cause in hand may be deduced from the consideration, to which of the several modifications of which testimonial mendacity is susceptible, the mendacity belonged in that instance.

These modifications, in so far as they belong to the present purpose, will turn upon the degree of improbity manifested by the mendacity in the former instance; and thence either upon the strength or weakness of the influence of the standing tutelary sanctions—the improbity-and-mendacity-restraining interests, or upon the strength of the temptation which that influence had to contend with, and by which it was overcome.

The distinctions of which testimony is susceptible, considered with reference to the person whose interest is affected by it, and the manner in which it is affected, have been already brought to view. Veracious or mendacious, those distinctions are alike applicable to it; testimony self-regarding or extra-regarding: in both cases, servitive or disservitive: if disservitive, criminative or simply onerative; if servitive, exculpative, exonerative, or locupletative.

Here follow certain indications afforded concerning the probability of testimonial mendacity in the case in hand, from the consideration of the nature of the mendacity in the former instance:—

1. Where, in the former instance, the object of the mendacity was to save another person from punishment, no evil being thereby done to any other individual, or none more than equal to the good done to the party favoured by it,—the probability of mendacity in the case in hand, as deducible from such former mendacity, seems scarcely to be so great, as where, in the first instance, the man’s object had been to save himself from punishment to the same amount.

The reason is, that in the one case a proof is given of an extraordinary degree of force on the part of the principle of humanity, the interest of sympathy: which proof is not given in the other case.

But this indication is not afforded, except on the supposition of the entire absence of every interest of the self-regarding kind: a matter of fact which will not often have place, nor, when it has place, be very easily ascertained.

2. Where, in the former instance, the object of the mendacity was to save a man’s self from evil of any kind, whether under the name of pure punishment, or satisfaction to another for injury,—the greater the evil, the less the probability it affords of mendacity in the case in hand: or, conversely, the less the evil, the greater the probability of mendacity in the case in hand.

The reason is, that, because a mendacity-promoting interest of a given magnitude had the effect of overpowering the mendacity-restraining force of the tutelary sanctions, it follows not that a mendacity-promoting interest of less magnitude would have been productive of the same effect.

Every one sees, that though, to save his life, or to save himself from a pecuniary punishment, or from a pecuniary obligation on the score of satisfaction, to the amount of £500 (being the whole amount of his property,) he fell into this transgression,—it follows not that he would have fallen into the same transgression, to save himself from the obligation of paying £5, being but one hundredth part of the whole amount of his property.

3. Where, in the former instance, the object of the mendacity was to save another person from merited punishment,—the probability of mendacity in the case in hand, as deduced from such former mendacity, seems not so great as where, in the former instance, the object was to consign another person to unmerited punishment.

The reason is, that in the one case indication is given of the prevalence of the interest of sympathy or principle of humanity (one of the standing tutelary sanctions,) to an extraordinary degree: whereas, in the other case, an indication is given of an extraordinary degree of insensibility to the force of that sanction, as well as of most, or all, of the other tutelary sanctions.

4. Where, in the former case, the object of the mendacity was to obtain, for a man’s self, an undue gain,—the probability of mendacity, in the case in hand, as deduced from such former mendacity, seems still greater than where in the former case the object was merely to subject another person to unmerited punishment.

The reason is, that the interest of ill-will (the seductive interest by which the mendacity was produced in the one case,) especially where the correspondent passion has risen to so high a pitch in respect of duration as well as intensity,—has but a casual existence, and cannot be produced but by some comparatively rare occurrence or state of things: a man’s probity may, therefore, on a particular occasion, be overpowered by it, and yet (far from being seduced) it may never happen to him to be so much as solicited, by the same sinister interest, to give in to the like evil course at any other period of his life. Whereas, pecuniary interest, not requiring any such special incident, or special object, for the creation of it, is created and kept alive at all times by the matter of wealth in all its shapes: and is, therefore (particular purposes being alike laid out of both cases, and the sum constitutive of the interest being supposed to be the same in both cases,) as likely to have place and be prevalent in the one case as in the other.

N.B.—In this case, much (it is evident) will depend upon the circumstances of the case in hand. For if, in the case in hand, all self-regarding as well as social interest on the part of the testifier is clearly out of the question (as may be the case, for example, where the testifier is prosecutor, and the only effect capable of resulting from conviction is punishment,) the prevalence of ill-will in the former case may afford a stronger indication—a greater probability, of the prevalence of the like passion in the case in hand, than would even have been afforded by the prevalence of pecuniary interest in the former case. But in the case of pecuniary interest so much depends upon the sum, and its proportion to a man’s habitual expense and present exigencies, that every comparison which has this interest for one of its terms, is liable, as every one must perceive, to great uncertainties.

5. Where, in the former case, the object of the mendacity was to save or obtain a gain,—the probability of mendacity in the case in hand, as deduced from such former mendacity, seems to be greater than if, in the former case, the testifier’s object had been to save himself from a loss to the same amount.

The reason is, as already observed,* that the influence of a given sum on the well-being of the individual, when considered as passing out of his hands in the shape of loss, is greater than that of the same sum when coming into his hands in the shape of gain; and therefore, that the force of the interest is, in the same proportion, greater in the one case than in the other: and it follows not, that because the force of the mendacity-restraining interests has been overcome by a given force, therefore it will by any less force.

But as to the point whether, with reference to a given individual, the sum in question, if coming into his hands, is to be considered as passing into them in the shape of gain, and so gained, or only as passing into them in the shape of security against loss, and so simply not lost; or, on the other hand, if going out of his hands, is to be considered as going out in the shape of loss, or as simply not staying in, in the shape of gain; this point, though in many instances clear and out of doubt, will in many instances be subject to doubt, and to doubts absolutely insoluble. The matter depends upon the strength of his persuasion; and this, too, taken at a point of time not always easy to be settled. If, at any given point of time, with an equal degree of persuasion, two contending parties expect, each of them, concerning the same sum, either that it shall not go out of his hands, or that it shall come into his hands,—the not coming in, in the one case, and the going out in the other, may, in the instance of either of them, be alike productive of the sensation of loss.

On the part of a person in whose breast the existence of improbity in a very high degree is notorious, either from proof made on a past occasion, or from the light in which he appears in the cause in hand,—there are several circumstances, each of which may, in aid of the standing mendacity-restraining sanctions, contribute to lessen the probability of mendacious testimony in that case.—These are—

1. Extraordinary difficulty, real, and thence apparent, of carrying through (in the particular circumstances of the cause in hand, and of the part taken by him in that cause,)—of carrying through a scheme of mendacity with safety and success.*

2. (In a case in which an effect of the mendacity, if successful, will be the bringing down upon the head of any particular individual—naturally the defendant—a burthen of affliction particularly severe, such, for instance, as unmerited capital punishment)—the extraordinary severity and afflictiveness of such burthen.

To the joint influence of these causes, on minds on which the influence of the three other tutelary sanctions (the political, the moral, and the religious,) especially the two latter, cannot but have been at its lowest pitch, may (it should seem) be ascribed, in great measure at least, the comparative unfrequency of criminative perjury: and the innoxiousness (as far as can be judged) and utility of the judicial practice by which, under the highest temptation that can be offered, the testimony of known malefactors of the most profligate description is every day admitted as the principal, and sometimes even as the sole, ground for convicting men of the highest crimes, and thence subjecting them to the most rigorous punishment afforded by the law.

That the social principle of sympathy bears some part in the production of the effect, there seems no reason to doubt. But that the part it bears, is, in comparison with that of the other (the self-regarding principle,) much the least considerable, is rendered but too manifest by very conclusive indications. In some countries, standing funds of reward have been established by law, for the purpose of engaging men to pursue to conviction offences of this or that particularly obnoxious description; such as depredation in the various shapes in which—though the mischief of the first order (the loss actually produced) is confined to assignable individuals—by far the greater part of the mischief—viz. the danger and alarm—diffuses itself over an indefinite space in the circle of the community at large. Influenced by these rewards, instances have been known, in which men have formed themselves into confederacies for the purpose of reaping the rewards in question at the expense of the ruin of a set of victims, to whom, in one sense, the word innocent would not be misapplied.

To entitle themselves to the receipt of the reward, to the payment of which conviction was the previous condition, it was necessary that evidence of the offence, evidence constituting a sufficient ground for the conviction, should have been delivered. To give birth to this evidence, what did they? They gave birth to the offence itself: an offence—an individual offence—of the description in question, was to be produced, that a body of evidence, effectual to the purpose, might be sure to be delivered. On such occasion, an innocent man—a man till then innocent—was to be seduced into the commission of the offence. The offence being really committed by him, care was at the same time taken, that the circumstances in which it was committed, should be such as to leave no deficiency in the necessary mass of evidence.†

To what cause is this characteristic part of the contrivance to be referred? Not, in any respect, to sympathy: for the suffering to which the victim was consigned, after having been thus drawn into guilt, was not inferior to the suffering to which he would have been consigned, had he been left in possession of his innocence.

There remained, therefore, this one cause: viz. a view of the advantage which, in respect of its comparative chance of obtaining credence, under the security afforded against deception by the faculty of vivâ voce cross-examination, a true story is so sure to possess over a false one. For, by the delivery of a true story, no other faculty is called into exercise but the memory—a faculty in respect of which, to any such purpose as that here in question, no deficiency can exist in the mind of any man. For the delivery of a false story adequate to the production of the same effect, the exercise, and the successful exercise, of two other faculties, each of which must be possessed in an extraordinary degree of perfection—viz. invention and judgment—is indispensable.

The grand instrument, the touchstone by which falsehood is detected, is inconsistency. In the delivery of a true and correct narrative, inconsistencies are impossible; for, of any two, or any number of real facts, to say that any one can be inconsistent with any other, is a contradiction in terms. Falsehoods, to escape detection, must to appearance be equally clear of inconsistency: of inconsistency, as well with respect to each other, as with respect to all known and indisputable truths. But to invent a number, though it were but a small number, of falsehoods, which shall not only at the moment but on all future occasions stand clear of every such inconsistency, is in general (especially under the check of cross-examination) a task of extreme difficulty: and, by the force of that check, the number of such facts which a man shall be called upon to invent—to invent at the moment, on pain of seeing the expected fruit of his labours gone, and punishment ready to fall upon his head instead of it, is without limit: and in the exercise thus given to it, the faculty of invention must at every step be accompanied and supported by the faculty of judgment, and that at a pitch of perfection, such as the strongest mind can never feel itself assured of rising to.

Where, as in the sort of case in question, the perceptions obtained were at the time associated with such an idea of their importance as was sufficient to command a force of attention sufficient to fix them in the memory,—and the first depth of the impression has not been defaced in any considerable degree by the hand of time,—the images presented by the memory are at all times the same: no danger of inconsistency between the account given of a fact at one time, and the account given of the same fact at another time. But the images of which the picture given of a false fact is composed,—these images, having no real standard by which they can be adjusted, no real archetype by which they can be fixed, will be at every moment liable to be changed: and as often as a change (though it be in any the minutest particular) takes place, so often is an imminent danger of inconsistency, and thence of detection, produced along with it.

Let it not here be forgotten, that for these always dangerous, though perhaps necessary, remuneratory arrangements, the demand is produced, in no inconsiderable degree, by the exclusionary system; viz. by that branch of it, which, on the score of vexation (if for any reason at all,) forbids the application of judicial questions to any such purpose as that of extracting evidence of guilt from the lips of malefactors. And moreover, that among the effects of it is that of making it men’s interest to nurse less mischievous malefactors, capable of yielding but small rewards, till they have ripened into malefactors of a more mischievous description, yielding larger rewards. By this means, while mischief is weeded out with one hand, it is sown with another. But this part of the mischief seems referable rather to the gradation established between the quantum of reward in one case and that in another, than to the application of remuneratory arrangements in aid of penal ones.

[* ]Suprà, Chap. VI.

[* ]Rules in detail for the estimation of the comparative degrees of probity and improbity in the moral part of the human frame, have been given at large in another work (Introduction to Morals and Legislation in Vol. I.:) they require too many preliminary observations to be inserted here.

[* ]Suprà, Chap. III.

[* ]This difficulty—in so far as concerns mere pain of exertion, mental labour, distinct from sense of danger—coincides with that principle ofaction which, under the name of the physical sanction, constitutes the first article in the list of standing tutelary, and thence mendacity-restraining, sanctions.

[† ]In the year 1754 (confederacies for the purpose of availing themselves of this encouragement having been systematically organized,) mischief (effects at least, good or bad) in a quantity considerable enough to engage no small share of the public attention, had, among the lower orders, been done by them. Several persons had been convicted—one at least had suffered death—for acts of robbery, into which, it came out, that they had been seduced by the confederates. Four men, MacDaniel, Berry, Egan, and Sulivan, after having been (in consequence of a special verdict) acquitted on an indictment charging them as accessaries to the robbery, were tried and convicted on an indictment, in which, for the designation of the offence, the unmeaning appellation of conspiracy was employed.a One of them, Egan, being, in pursuance of his sentence, put into the pillory, was murdered by the populace upon the spot. Another, Berry, died of his wounds. Whether any real mischief, other than the alarm,was done by this confederacy, seems, after all, a matter of doubt. In the only case the particulars of which are known, the two victims, though engaged by a sort of treachery in the commission of the individual offence of which in consequence they were convicted, had, in pursuance of their own schemes, been habitual depredators, though, for anything that appears, in a line somewhat inferior in criminality; viz. simple theft, instead of robbery accompanied with force. This being the supposed case, the effect of the terror inspired by such practice would be purely salutary rather than otherwise, tending to the destruction of confidence among malefactors, and thereby to the destruction of that small and destructive portion of society, whose destruction is the preservation of the innocent part. The malefactors were, two of them, murdered in the pillory. The murderers, if not thieves themselves, were probably set on by those who were.

Correct or incorrect, the following more recent story, copied from the newspapers, will be equally subservient to the purpose of illustration:—

“A curious stratagem in the trade of thief-catching was played off on Tuesday, at broad noon, in the sequestered walk which leads from the end of the canal at the top of the Green Park, through the shrubbery, to the gate at Hyde-Park Corner. A fellow, who had the appearance of a farmer’s or cow-keeper’s servant, with a milk-vessel in his hand, and a watch in his fob, stretched himself on his back upon the grass at the rear of the Ranger’s Lodge, as if drunk and asleep; while two of his companions took their stations at some distance. A sweep, with his boy, passing shortly afterward, the former fell completely into the trap, by embracing what he, no doubt, conceived to be the fortunate opportunity of helping himself to the sleeper’s watch; who suffered him, without interruption, to bear off his prize for a dozen yards, and then, jumping up, raised the hue and cry of stop thief! which was instantly repeated by his companion, and the sweep seized, with the watch in his possession. They insisted on taking him immediately to Bow Street, and prosecuting him for the robbery: but a reputable and resolute gentleman, who lives at Knightsbridge, and who saw the whole transaction, interfered, and told the captors, that if they took the prisoner before a magistrate, to prosecute him capitally for the offence into which they had entrapped him, he should certainly accompany them, and give evidence of their conspiracy: upon which they very quietly surrendered their prisoner, and marched off.”—Times, 1st August 1806.

[† ]In the year 1754 (confederacies for the purpose of availing themselves of this encouragement having been systematically organized,) mischief (effects at least, good or bad) in a quantity considerable enough to engage no small share of the public attention, had, among the lower orders, been done by them. Several persons had been convicted—one at least had suffered death—for acts of robbery, into which, it came out, that they had been seduced by the confederates. Four men, MacDaniel, Berry, Egan, and Sulivan, after having been (in consequence of a special verdict) acquitted on an indictment charging them as accessaries to the robbery, were tried and convicted on an indictment, in which, for the designation of the offence, the unmeaning appellation of conspiracy was employed.a One of them, Egan, being, in pursuance of his sentence, put into the pillory, was murdered by the populace upon the spot. Another, Berry, died of his wounds. Whether any real mischief, other than the alarm,was done by this confederacy, seems, after all, a matter of doubt. In the only case the particulars of which are known, the two victims, though engaged by a sort of treachery in the commission of the individual offence of which in consequence they were convicted, had, in pursuance of their own schemes, been habitual depredators, though, for anything that appears, in a line somewhat inferior in criminality; viz. simple theft, instead of robbery accompanied with force. This being the supposed case, the effect of the terror inspired by such practice would be purely salutary rather than otherwise, tending to the destruction of confidence among malefactors, and thereby to the destruction of that small and destructive portion of society, whose destruction is the preservation of the innocent part. The malefactors were, two of them, murdered in the pillory. The murderers, if not thieves themselves, were probably set on by those who were.

Correct or incorrect, the following more recent story, copied from the newspapers, will be equally subservient to the purpose of illustration:—

“A curious stratagem in the trade of thief-catching was played off on Tuesday, at broad noon, in the sequestered walk which leads from the end of the canal at the top of the Green Park, through the shrubbery, to the gate at Hyde-Park Corner. A fellow, who had the appearance of a farmer’s or cow-keeper’s servant, with a milk-vessel in his hand, and a watch in his fob, stretched himself on his back upon the grass at the rear of the Ranger’s Lodge, as if drunk and asleep; while two of his companions took their stations at some distance. A sweep, with his boy, passing shortly afterward, the former fell completely into the trap, by embracing what he, no doubt, conceived to be the fortunate opportunity of helping himself to the sleeper’s watch; who suffered him, without interruption, to bear off his prize for a dozen yards, and then, jumping up, raised the hue and cry of stop thief! which was instantly repeated by his companion, and the sweep seized, with the watch in his possession. They insisted on taking him immediately to Bow Street, and prosecuting him for the robbery: but a reputable and resolute gentleman, who lives at Knightsbridge, and who saw the whole transaction, interfered, and told the captors, that if they took the prisoner before a magistrate, to prosecute him capitally for the offence into which they had entrapped him, he should certainly accompany them, and give evidence of their conspiracy: upon which they very quietly surrendered their prisoner, and marched off.”—Times, 1st August 1806.

[a ]State Trials, x. 418-447. Foster’s Reports, p. 121-130.