The Online Library of Liberty

A project of Liberty Fund, Inc.

• 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 X.

RECAPITULATION.

Against the following errors it concerns the judge to be upon his guard:—

1. The supposing that there is any man, of whose testimony it is certain that it will throughout be true: true to the purpose of warranting the judge to treat it as conclusive, i. e. exclusive of all counter-evidence.

2. The supposing that there is any man, of whose testimony it is certain that it will throughout be untrue; viz. to the purpose of warranting the judge in refusing to hear it. Not that the certainty of its being throughout untrue, would induce anything like a certainty of its being throughout uninstructive.

3. The supposing that there exists any one sort of interest, which, on the occasion in question, can be sure so to overpower the force of the standing tutelary interests, as to render untruth on the part of the testimony certain in any part, much less in the whole.

4.—or any number of interests acting in a mendacity-promoting direction.

5. The supposing that because, as to this or that fact, the testimony in question is incontestably false, and even mendacious,—that therefore there is a certainty of its being false as to this or that other fact: much more as to all the other facts.

6. The supposing that, where there are divers interests, to the action of which the testimony is exposed on either side, there is any one of them that ought to be neglected, as if destitute of force.

7. The supposing that, where there are divers interests acting on the same side, the aggregate force with which they act is to be learnt by counting them, without regard to the separate force of each.

The above propositions are the general result of this work.

The anatomical view (shall we say) above given of the human mind,—does it quadrate with the truth? No person by whom this work can ever be taken in hand—no person, male or female, high or low, rich or poor, but is competent to judge.

But if it be, what must we say of the picture given of it in the books of jurisprudence? of the picture of it, as referred to, and wrought from, on every jurisprudential bench?

Judging of it from those books and those benches, is this branch of practical science (if science it is to be called) in any better state than the science of anatomy, when the circulation of the blood was unknown, and nerves and tendons were confounded under one name? or than chemical science, when the great Plowden, no less profound in chemistry than in jurisprudence, gave in the pedigree of the metals, certifying them to be the issue in tail lawfully begotten by Stephen Sulphur upon the body of Mary Mercury?

By way of contrast to the above proposed mementos, and that the reader in whose understanding there is any predilection for reason, or in whose heart there is any concern for the welfare of mankind, might take his choice,—it had been in my intention to subjoin a view of those documents to which English judges are at present in the habit of resorting for their guidance, and which (in addition to, or in explanation of, the particular decision, the supposed purport of which has been preserved by chance,) the advocates on each side are wont to present them with in that view.

These documents would range themselves naturally into two classes:—1. Considerations purely technical, i. e. having no reference to anything that will bear the name of reason: 2. Fragmenta rationalia; considerations containing in them more or less of the matter of reason. Fragments they cannot but be called; inasmuch as, containing, almost without exception, no reason but on one side, nor of that anything better than a loose and broken hint, they can never, in any instance, be considered as amounting to an entire reason, but only to a quantity of rough matter, by the help of which, with due management, a reason might be made.

Of this research, what, it may be asked, would be the use?

Illustration—illustration merely. Amusement, and nothing more: or, if anything beyond amusement, this:—that the portentous worthlessness and depravity of the technical system, and of that sort of trash which among lawyers goes by the name of science, may be placed in yet another point of view: that, of the mountain of their nonsense, the relative as well as absolute magnitude may be measured by the molehill dimensions of such part of their productions as, without abuse of language, may be capable of passing under the name of sense.

To engage in any such research, in the hope of any instruction, which in any other point of view could afford payment for the labour, would be to scrutinize the contents of the first great dunghill that presented itself, for the possible pearls or diamonds that might be to be found in it. It would at the best be like the reading over and studying the Bibliotheca of Alchemy, in the expectation of meeting with instruction applicable to the advancement of modern chemistry. In the course of a twelvemonth, it is not impossible but here and there a result might be found presenting a fact of which no modern chemist is apprized. But, in less than a thousandth part of the time thus spent in the purlieus of folly and imposture, facts of more use and importance might be brought to certainty, and for the first time, by following the track already opened by genuine and unpolluted science.

To subjoin a view of these lawyer’s reasons, technical and semi-rational, to the present work, had, as already observed, been my intention. But, considering the bulk to which the present publication has already swelled, the completion of what may be found to say on this topic must be postponed. As for specimens, they have been already seen: technical considerations in the chapter on restoratives and elsewhere; fragmenta rationalia in some of the reasons for the exclusion of self-disserving evidence, in the reasons for excluding the testimony of a wife against her husband,* in the use made of the words necessity, course of trade,† &c.

CONCLUSION.

We are now arrived at the conclusion of this work: a few leading considerations have been pressing upon our minds throughout the whole course of it. At present I speak particularly to Englishmen; the application to other countries will not be difficult.

1. So far as evidence is concerned (and the limitation need not he anxiously insisted on,) the existing system of procedure has been framed, not in pursuit of the ends of justice, but in pursuit of private sinister ends—in direct hostility to the public ends. It is time that a new system be framed, really directed to the attainment of the ends of justice.

2. The models, the standards, the exemplifications of the proposed improved system—nay, of a perfect system, are not objects of a Utopian theory;—they are within every man’s observation and experience—within the range of every man’s view—within the circle of every private man’s family.

3. To find these models of perfection, an Englishman has no need to go out of his own country: for invention there is little work—for importation, scarce any. English practice needs no improvement but from its own stores: consistency—consistency is the one thing needful: preserve consistency, and perfection is accomplished.

4. No new powers, no tamperings with the constitution, no revolutions in power, no new authorities, much less any foreign aid, are necessary. All that is necessary (and this is necessary) is, that the laws made for the purpose should be made by the lawful legislator—not by a power subordinate to that of the legislator, taking advantage of his negligence, usurping his authority, legislating with inadequate means, in pursuit of sinister ends, on false pretences.

5. Nothing more is required, than the extending, in all causes and cases, to rich and poor without distinction, that relief which in certain causes and cases, and in certain districts, has been afforded to the poor: torn (by the appointed guardians and friends of the people) from the rapacity, or abandoned by the negligence, of their natural enemies.

6. It requires, indeed, the establishment of local judicatures: but even this is not innovation (not that even innovation, where necessary, should ever be declined)—not innovation, but restoration and extension. Restoration—of powers once in existence,* before they were swallowed up by the framers of the existing system of abuse, under favour of their own resistless power, working by their own frauds, covered by their own disguises, in pursuit of their own sinister ends. Extension—the restoring, though with some increase of amplitude, to one half of the island, the fountains of justice so happily retained by the other.†

An aphorism not unfrequently quoted, and seldom without approbation, is that of Machiavel, in which the taking the constitution of the country to pieces, for the purpose of bringing it back to its first principles, is spoken of as a wise and desirable course. In the character of a general principle extending to all states, and to every branch of the constitution of every state, it is founded on vulgar prejudice, and leads to mischief. It supposes a constitution formed all at once: a supposition scarce anywhere realized. It supposes experience worth nothing; and herein lies the great and mischievous absurdity. It supposes men in the savage state endued with perfect wisdom, but growing less and less wise as experience accumulates, and progress is made in the track of civilization. It supposes that, to make the British constitution better than it is, we ought to bring it back to what it was in the time of William III., or Charles I., or Edward I., or John, or William the Conqueror, or Alfred, or Egbert, or Vortigern, or Cassibelaunus; in whose reign it would still have exhibited a picture of degeneracy, if compared with the primeval golden constitution of New Holland or New Zealand.

In the case at present on the carpet, the supposed wisdom of the maxim may find an apparent confirmation. By doing away the work of five or six hundred years, and throwing back the system of procedure, as to the most fundamental parts, into the state in which it was at the time of Edward I. and much earlier, a mountain of abuse might be removed, and even a near approach to perfection made. Why? Because in principle there is but one mode of searching out the truth: and (bating the corruptions introduced by superstition, or fraud, or folly, under the mask of science) this mode, in so far as truth has been searched out and brought to light, is, and ever has been, and ever will be, the same, in all times, and in all places—in all cottages, and in all palaces—in every family, and in every court of justice. Be the dispute what it may,—see everything that is to be seen; hear everybody who is likely to know anything about the matter: hear everybody, but most attentively of all, and first of all, those who are likely to know most about it—the parties.

Under the first Normans, as under the Saxons, the parties were always present in court, whoever else was present. Each was allowed to appear for his own benefit; each was compelled to appear for the benefit of his adversary.

Under the first Normans, as under the Saxons, justice was within the reach of every man: he might have it, in many cases, without travelling out of his own hundred;—in almost all cases, without travelling out of his own county. With, or even without, the assistance of a horse, most commonly he might betake himself to the seat of judicature, and return, without sleeping out of his own bed: at the worst, he might go one day, and return the next.

With minds of a certain texture, many points might perhaps be gained by quoting, as if it were an authority, this conceit of Machiavel. But to rest the cause of utility and truth upon prejudices and wild conceits, would be to give a foundation of chaff to an edifice of granite. In a work which, if true or useful for a moment, will be so as long as men are men, the humour of the day is not worth catching at any such price.

In point of fact, then, I mention it as mere matter of accident, and in point of argument as no better than an argument ad hominem, that the system of procedure here proposed, happens to be, in its fundamental principles, not a novel, but an old one: and I give it for good, not because it is old, but although it happens to be so. Parties meeting face to face, in courts near to their own homes: in county courts, and, where population is thick enough, in hundred-courts or town-courts.

NOTE ON THE BELGIC CODE.

The code recently promulgated for the kingdom of the Netherlands, forms in many respects, so far as regards the law of evidence, an advantageous contrast with most European systems of jurisprudence.

Its superiority is most decided in the department of preappointed evidence, particularly under the head of contracts: formalities being, as it is fit they should be, prescribed, but not peremptorily so. A contract, although informally drawn up, may yet, if signed by the parties, be received in evidence. There is also a system of registration for written contracts. It is an article of this code, that oral evidence is not admissible to prove the existence, or to disprove or add to or alter the contents, of a written contract in form; but to this exclusionary rule there are two curious exceptions: one in favour of the poor—the other in favour of the mercantile classes. If the property dependent on the contract do not exceed the value of one hundred florins, or if the transaction which gave rise to the contract be a commercial transaction, oral evidence may be heard. These exceptions render the code more wise and just, but much less consistent.

In the department of testimonial evidence, the only absolute exclusions are those of the husband or wife of a party to the cause, and all relatives of a party in the direct line: but the relatives and connexions of a party in any collateral line (as well as those of the husband or wife of a party) to the fourth degree, are said to be reproché (in the Dutch version of the code, gewraakt;) as are also the presumptive heir, or servant of a party, all persons directly or indirectly interested (pecuniarily) in the cause, and all persons who have been convicted of robbery, theft, or swindling, or who have suffered any afflictive or infamizing punishment.

It is probable, though not clearly apparent on the face of the code, that the words reproché and gewraakt refer to the old rule of the Roman law, by which the evidence of two witnesses is conclusive evidence (plena probatio) in certain cases: and the meaning of these phrases probably is, that a witness belonging to any of the classes above enumerated, shall not be considered a witness to that purpose,—viz. the purpose of forming a plena probatio, in conjunction with one other witness. If this be the meaning of the apparently exclusionary rule, it tends, pro tanto, to diminish the mischievousness of the monstrous principle of law to which it constitutes an exception.

It seems that the parties themselves cannot be heard in evidence under this code; with this exception, however, that a party may be required to admit or deny his own signature; and several other exceptions closely resembling the juramentum expurgatorium and the juramentum suppletorium of the Roman law, which have already been explained.

Among the bad rules of Roman law which are adopted in this code, is that which constitutes the evidence of a single witness insufficient to form the ground of a decision. The place of a second witness may, however, in many instances, be supplied by a written document, which is in such cases termed a commencement de preuve par écrit.

A rule deserving of imitation in this code, is that which permits children under fifteen years of age to give their testimony without oath. Their title to credence evidently does not depend upon their capacity to understand the nature of a religious ceremony, but upon their power of giving a clear, consistent, and probable narrative of what they have seen or heard.

On the whole, this new code—so far at least as regards the department of evidence—may be pronounced, though still far from perfect, considerably better than either the English system, or the other continental modifications of the Roman law.—Editor.

stereotyped and printed by stevenson and co.

thistle street, edinburgh.

[* ]Suprà, pp. 480-6.

[† ]Suprà, p. 167.

[* ]The Saxon County Courts.

[† ]The Sheriffs’ Courts and Borough Courts in Scotland.