bentham_text_sm.txt

The Online Library of Liberty

A Project Of Liberty Fund, Inc.

Jeremy Bentham, The Works of Jeremy Bentham, vol. 6
[1843]

The Online Library Of Liberty

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Online Library of Liberty: The Works of Jeremy Bentham, vol. 6

Edition Used:

The Works of Jeremy Bentham, published under the Superintendence of his Executor,
John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 6.

Author: Jeremy Bentham
Editor: John Bowring

About This Title:

An 11 volume collection of the works of Jeremy Bentham edited by the philosophic
radical and political reformer John Bowring. Vol. 6 contains The Introductory View
of the Rationale of Evidence, and Rationale of Judicial Evidence.

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About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the
study of the ideal of a society of free and responsible individuals.

Copyright Information:

The text is in the public domain.

Fair Use Statement:

This material is put online to further the educational goals of Liberty Fund, Inc.
Unless otherwise stated in the Copyright Information section above, this material may
be used freely for educational and academic purposes. It may not be used in any way
for profit.

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Online Library of Liberty: The Works of Jeremy Bentham, vol. 6

Table Of Contents

Errata—vol. VI. *
An Introductory View of the Rationale of Evidence; For the Use of Non-

lawyers As Well As Lawyers.
Chapter I.: Title-page Justified.
Chapter II.: Relation of Law to Happiness—of Procedure to the Main Body of

the Law—of Evidence to Procedure.

Chapter III.: Ends of Justice On the Occasion of Judicature. *
Chapter IV.: Duties of the Legislator In Relation to Evidence.
Chapter V.: Probative Force—whence Measured—how Increased—how

Diminished.

Chapter VI.: Degrees of Persuasion—thence of Probative Force—how

Expressible.

Chapter VII.: Causes of Trustworthiness and Untrustworthiness In

Testimony—thence of Belief and Unbelief.

Chapter VIII.: Of the Securities For Trustworthiness In Evidence.
Chapter IX: False Securities For Trustworthiness In Evidence—oaths and

Exclusions.

Chapter X.: Of the Reception and Extraction of Evidence, Viz. With the Help

of the Above Securities.

Chapter XI.: Collection of Evidence—english Practice.
Chapter XII.: Of Circumstantial Evidence.
Chapter XIII.: Of Make-shift Evidence.
Chapter XIV.: Of Preappointed Evidence.
Chapter XV.: Difference Between Preappointed and Unpreappointed Evidence.
Chapter XVI.: Preappointed Official Evidence.
Chapter XVII.: Extempore Recordation, How Applicable to Legally Operative

Facts At Large.

Chapter XVIII.: Of Derivative, Including Transcriptious, Recordation, Wherein

of Registration.

Chapter XIX.: Exclusion of Evidence.—general Considerations.
Chapter XX.: Exclusion Continued—causes For Which It Is Proper Or Not,

According to Circumstances.

Chapter XXI.: Exclusion Continued—causes For Which It Cannot Be Proper.
Chapter XXII.: Exclusions By English and Other Laws—analytic and Synoptic

Sketches.

Chapter XXIII.: Safeguards Against Suspicious Evidence: Including

Instructions Concerning the Weighing of Evidence.

Chapter XXIV.: Authentication and Deauthentication, As Applied to

Preappointed and Other Written Evidence.

Chapter XXV.: Exclusion and Nullification Applied to Contractual Matter, In
So Far As Writing Has Been Omitted to Be Employed In Giving Expression
to It.

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Chapter XXVI.: Of the Exclusion and Nullification of Contractual Matter,
Informally Though Scriptitiously Expressed, In a Transaction Which Has
Been the Subject of Matter Formally Expressed.

Chapter XXVII.: Imprisonment For Debt:—disguised Exclusion of Evidence

Involved In It.

Chapter XXVIII.: Of the Burthen of Proof: On Whom Shall It Lie?— (a

Question Produced By Undue Exclusion of Evidence.)

Chapter XXIX.: Evidence Considered In Its Relation to This Or That Fact In

Particular—why Discarded From This Work.

Chapter XXX.: Evidence In Relation to Particular Facts and Pleadings Under

Technical Procldure.

Chapter XXXI.: False Theory of Evidence (gilbert’s * )—its

Foundation:—precedence Given to Written Before Unwritten.

Chapter XXXII.: Liberalists and Rigorists—parties Belligerent In the Field of

Jurisprudence, and In Particular of Evidence.

Chapter XXXIII.: Conclusion.
Appendix A.: Cautionary Instructions Respecting Evidence, For the Use of

Judges.

Chapter I.: Propriety of Cautionary Instructions, In Preference to Unbending

Rules.

Chapter II.: Considerations Proper to Be Borne In Mind In Judging of the

Weight of Evidence.

Chapter III.: Considerations Respecting the Effects of Interest In General Upon

Evidence.

Chapter IV.: Considerations Respecting the Effect of Pecuniary Interest Upon

Evidence.

Chapter V.: Situations.
Chapter VI.: Makeshift Evidence.
Chapter VII.: Scale of Trustworthiness.
Chapter VIII.: Best Evidence, What?
Chapter IX.: English Law Scale of Trustworthiness.
Appendix B.: of Imprisonment For Debt.
Section I.: Its Inaptitude As an Instrument of Compulsion.
Section II.: Its Inaptitude, Applied As It Is As an Instrument of Punishment.
Section III.: Its Needlessness Demonstrated By Experience.
Section IV.: End, Or Final Cause of the Institution—judge and Co.’s Sinister

Interest.

Section V.: Means Employed—mendacity and Usurpation.
Section VI.: Affidavit Previous to Arrest, Its Unfitness.
Section VII.: Consequence of the Exclusion Thus Put Upon Evidence.
Section VIII.: Advocates For the Abolition of Imprisonment For Debt—their

Errors.

Section IX.: Scotch Law—cessio Bonorum, Its Inadequacy.
Section X.: Agenda—course Proper to Be Taken On the Occasion of

Insolvency.

Appendix C.: False Theory of Evidence—(gilbert’s.)
Rationale of Judicial Evidence, Specially Applied to English Practice. From the

Manuscripts of Jeremy Bentham, Bencher of Lincoln’s Inn.

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Preface.
Prospective View.
Book I.: —theoretic Grounds.
Chapter I.: On Evidence In General.
Chapter II.: Of Evidence Considered With Reference to a Legal Purpose; and of

the Duties of the Legislator In Relation to Evidence.
Chapter III.: Of Facts—the Subject-matter of Evidence.
Chapter IV.: Of the Several Species Or Modifications of Evidence.
Chapter V.: Of the Probative Force of Evidence.
Chapter VI.: Degrees of Persuasion and Probative Force, How Measured.
Chapter VII.: Of the Foundation Or Cause of Belief In Testimony.
Chapter VIII.: Modes of Incorrectness In Testimony.
Chapter IX.: General View of the Psychological Causes of Correctness and

Completeness, With Their Contraries, Incorrectness and Incompleteness, In
Testimony.

Chapter X.: Of the Intellectual Causes of Correctness and Completeness In

Testimony, With Their Opposites.

Chapter XI.: Of the Moral Causes of Correctness and Completeness In

Testimony, With Their Opposites.

Chapter XII.: Ground of Persuasion In the Case of the Judge—can Decision On
His Own Knowledge, Without Evidence From External Sources, Be Well
Grounded?

Book II.: —on the Securities For the Trustworthiness of Testimony.
Chapter I.: Object of the Present Book.
Chapter II.: Dangers to Be Guarded Against, In Regard to Testimony, By the

Arrangements Suggested In This Book.

Chapter III.: Internal and External Securities For the Trustworthiness of

Testimony Enumerated.

Chapter IV.: On the Internal Securities For Trustworthiness In Testimony.
Chapter V.: Of Punishment, Considered As a Security For the Trustworthiness

of Testimony.

Chapter VI.: Of the Ceremony of an Oath, Considered As a Security For the

Trustworthiness of Testimony.

Chapter VII.: Of Shame, Considered As a Security For the Trustworthiness of

Testimony.

Chapter VIII.: Of Writing, Considered As a Security For the Trustworthiness of

Testimony.

Chapter IX.: Of Interrogation, Considered As a Security For the

Trustworthiness of Testimony.

Chapter X.: Of Publicity and Privacy, As Applied to Judicature In General, and

to the Collection of the Evidence In Particular.

Additional Notes to Books I. & II. Chiefly With Reference to Alterations Made

In the Law Since the Date of the First Edition,— Viz. 1827.

Book III.: Of the Extraction of Testimonial Evidence.
Chapter I.: Of the Oral Mode of Interrogation.
Chapter II.: Notes, Whether Consultable?
Chapter III.: Of Suggestive Interrogation.
Chapter IV.: Of Discreditive Interrogation.

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Chapter V.: Of the Demeanour of the Adverse Interrogator to the Witness,

Considered In Respect of Vexation.

Chapter VI.: Of the Notation and Recordation of Testimony.
Chapter VII.: That the Evidence Should Be Collected By the Same Person By

Whom the Decision Is to Be Pronounced.

Chapter VIII.: Five Modes of Interrogation Compared.
Chapter IX.: Epistolary Mode of Interrogation, In What Cases Applicable.
Chapter X.: Epistolary Mode of Interrogation, How to Apply It to the Best

Advantage.

Chapter XI.: Helps to Recollection, How Far Compatible With Obstructions to

Invention?

Chapter XII.: Of Re-examination, Repetition, Or Recolement.
Chapter XIII.: Of Spontaneous Or Uninterrogated Testimony.
Chapter XIV.: General View of the Incongruities of English Law In Respect of

the Extraction of Evidence.

Chapter XV.: Mode of Extraction In English Common-law Procedure—its

Incongruities.

Chapter XVI.: Mode of Extraction In English Equity Procedure—its

Incongruities.

Chapter XVII.: Mode of Extraction In English Ecclesiastical and Admiralty

Courts—its Incongruities.

Chapter XVIII.: Incongruities of Roman Law In Respect of the Extraction of

Evidence.

Chapter XIX.: Of Confrontation Under the Roman Law.
Chapter XX.: Recapitulation.
Book IV.: Of Preappointed Evidence.
Chapter I.: Of Preappointed Evidence In General.
Chapter II.: Of Instruments of Contract In General.
Chapter III.: Of the Enforcement of Formalities In the Case of Contracts.
Chapter IV.: Formalities, What Proper, and In What Cases?
Chapter V.: Of Wills, As Distinguished From Other Contracts.
Chapter VI.: Of Preappointed Evidence, Considered As Applied to Laws.
Chapter VII.: Of Public Offices At Large, Considered As Repositories and

Sources of Preappointed Evidence. *

Chapter VIII.: Of Official Evidence, As Furnished By Judicial Offices.
Chapter IX.: Of Preappointed Evidence, Considered As Applied to Legally-

operative Facts At Large.

Chapter X.: Of the Registration of Genealogical Facts, Viz. Deaths, Births, and

Marriages.

Chapter XI.: Of Offices For Conservation of Transcripts of Contracts. *
Chapter XII.: Of the Principle of Preappointed Evidence As Exemplified In the

Case of Real Evidence (evidence From Things.)

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[Back to Table of Contents]

ERRATA—VOL. VI.*

2

3
33

Page Col. Line
66 n†
134
210
n*
212

46

2

12

for the second his put the granter’s.
after everything insert is.

for p. 17 put p. 205.

for form put force.
before The insert Where the object belongs to the class of
persons.
for trustworthy put untrustworthy, so it be not incredible.
for destroyed put not be increased.
before the insert of.
dele whether this word.
for insecurity put in security.
for way put case.

before opposite put the propriety of the.
for of difficult put difficult of.

for exemptions and exemption, put exemplars and exemplar.

last
61
4
12
12
56
50 and 52 for him put it.
35
note
61 and
63,
63
63
6

after side put?
after to insert answer.
for or the put or say.

38

for arrived put aimed.

2
8
18
37
38
37
53
49
61
53
4
13
55
34, 35
44
8

before without insert with or.
for cases put ears.
dele non.
for classified put clarified.
dele the description of.
for justice put justices.
for strictly put shortly.
for not put and.
for cupboard put closet.
for distinctive put destructive.
for connexion put scription.
for untempted put untainted.
for yours put ours.
for fictitious put factitious.
for sincere put sure.
for description put descriptions.

218

231
233
283
290
291
298
308
321
344

353

2

1
1
1
1
1
2
1
2

2

2
2
2

395
404
423
431
n*
435
2
— -
1
441
2
446
1
459
2
464
1
475
2
482
2
502
509
2
538 n
544
2
547 n 2
2
563
577 n 2
1
580

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[Back to Table of Contents]

AN INTRODUCTORY VIEW OF THE RATIONALE OF
EVIDENCE;

FOR THE USE OF NON-LAWYERS AS WELL AS
LAWYERS.

BY JEREMY BENTHAM, OF LINCOLN’S INN, ESQ.

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[Back to Table of Contents]

CHAPTER I.

TITLE-PAGE JUSTIFIED.

§ 1.

Persons For Whose Use—Non-Lawyers As Well As Lawyers.

The extent—the almost boundless expanse of the subject,—the variety of the matters
touched upon,—the novelty of the points of view in which many—perhaps most of
them—not to say all of them, will be found presented,—the unavoidably consequent
novelty of not a few of the terms which it had been found necessary to employ,—all
these things considered, it seemed to the author, that a general, and, how slightly
soever, yet all-embracing outline, abstracted, and, like “a panorama explanation,”
detached from the work at large, for the purpose of preparing the eye for the contents
of the more fully-delineated scene, might not be without its use.

Should this be among the instances in which the Greek adage concerning books is
destined to find its exemplification, the lighter burthen may at any rate do service, by
saving the hand which takes it up, from the heavier load which is yet to come.

The field of evidence is no other than the field of knowledge. On that field, the
researches, the result of which form the matter of the present work, extend not, it is
true, beyond the case in which evidence is capable of being operative to a legal
purpose. But forasmuch as on the whole field of human knowledge there is scarcely a
conceivable spot from which evidence may not on one account or another be called
for to a legal purpose* —hence it is, that, in effect, the portion cut off from the field
of research by this limitation, will be found to be neither very considerable, nor
altogether determinate.

Proportioned to the extent of that field will be the number of persons, to whom, in the
character of readers, independently of any such misfortune as that of feeling
themselves stretched on the rack in the character of litigants, it may happen to find in
the work, matter on some account or other not altogether devoid of interest: and in
proportion as this supposition comes to be realized, a justification will be afforded to
the words, by which, in the title-page, non-lawyers are spoken of as persons to whose
use, as well as that of lawyers, it may be found applicable.

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§ 2.

Rationale—Propriety Of The Appellative.

The justification of the clause, “for the use of non-lawyers,” having been thus
attempted, the word rationale, in the clause “rationale of evidence,” remains to be
justified.

To whomsoever, with other than a professional eye, it can have happened to take up a
book on the subject of evidence, be the book what it may, it can scarcely have been
long, before he saw more or less reason to suspect that in the formation of the mass of
rules of which he found it composed, the share taken by that faculty, which, when
applied to other subjects, goes by the name of reason, must have been small indeed.
Towards any determinate end, good or bad, unless it were the increase of power and
profit to the framers—scarcely any symptom of regard: arbitrary will—disguised, or
not disguised, by this or that technical figure of speech, the sole, as well as the ever
active efficient cause of everything that has been done:—such is the spectacle that
will have presented itself to his view.

In matters of law—in matters of legislation at least—reason is an instrument by which
means are employed and directed to the attainment of an end. Of legislation the
proper end may, it is hoped, without much presumption, be stated as being,—not but
there are those who will deny it,—in every community, the creation and preservation
of the greatest happiness to the greatest number—or, in one word, happiness: a false
end, the creation and preservation of the greatest quantity of happiness to a few, to the
prejudice, and in diminution of the happiness of the greatest number:—to a few, and
those few naturally and usually the possessors of the several powers of government,
with their official subordinates, and their other associates and connexions:—and this,
in proportion as the machinery of government is looked into, will almost everywhere
be seen to be the end, principally at least, if not exclusively, aimed at and pursued.

As to the faculty called will, its act, volition, has on each occasion, for its causes,
interests, acting in the character of motives. In what way these springs of action, with
as little assistance as perhaps in any instance was ever received or looked for from the
faculty of reason, give existence everywhere to the law of evidence, and more
particularly to the law of English evidence, is among those questions, the answers to
which will in some shape or other, it is supposed, be found as occasion serves,
presenting themselves to the reader in his progress through the work.

Knowledge of the proper remedies is seldom to be obtained without knowledge of the
mischief;—for the purpose of remedy, knowledge of the effect is seldom sufficient
without knowledge of the cause.

To the non-lawyer, or as in lawyers’ language he is called, the unlearned reader, not
only in respect of perspicuity, but in respect of that sort of satisfaction which is
afforded by the observation of practical use, under each head, a delineation more or
less particular, of the state of the law as it is, would naturally have been in no small
degree acceptable;* but with the design of the present sketch, any such illustration

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would have been altogether incompatible. If the contents of two large quartos could
have been compressed into three or four hundred octavo pages, doubtless so much the
better; but if they could, the difference would have been so much surplusage. What
has all along been within the bounds of possibility, at least whether within or not
within the bounds of the author’s ability, has been to excite curiosity: what could only
here and there be so much as attempted, has been in some degree to satisfy it.

Remedy supposes mischief. Rules are seldom laid down, but with a view more or less
distinct to antecedent transgressions: and, not only upon the rules that will here be
seen suggested, but upon the state of the law which during the framing of them was in
view, the observation may, for the use of the unlearned reader, afford some light.
Accordingly, as often as upon the view of this or that suggestion, the propriety of it
may happen to present itself, as being so completely obvious and indisputable as to
reflect upon it the imputation of nugatoriness and uselessness, the danger of error will
not be great, if his conclusion be—that this dictate of the plainest common-sense
stands, in a great part, if not in the whole of its extent, contravened by the practice of
English judges.

Thus, if in what ought to be done, a man reads what has not been done, and in what
ought not to be done, what has been done, the text itself, may, with the assistance of
this short hint, perform the office of a comment.

Should any such question be asked, as how it can have happened that, in the sight of
the legislator, in almost everything they did, men thus called, and thus chosen, kept
doing that which was evil, the answer, true or not true, will at least be found simple
and intelligible. What they did was evil, because to do otherwise than evil, both will
and ability were always wanting: will was wanting, because interest was wanting:
ability was wanting, because will was.

Of this opposition between what might seem duty on the one hand, and interest
coupled with power on the other, the causes, as well as the existence, have been
shown already in another work: and to everything that, in the course of the present
pages, will be seen indicated in relation to established practice, these observations,
short as they are, may afford a clue.

Thus, and thus alone, may be accounted for,—accounted for in crowds,—phenomena
which otherwise would have been plainly unaccountable.

When thistles only are sown, grapes ought not to be expected.

As in every other part of the field, so in this:—of that rule of action, on the state of
which, everything that is valuable to man is in so high a degree dependent, very
different is the representation that would assuredly have been most agreeable to the
feelings of the generality of those who live under it, and of none in a higher degree
than of him, on whom the task of giving the picture, which is here given of it, has
devolved. Unfortunately, by certificates of health, neither in the body natural, nor yet
in the body politic, are disorders to be cured.

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By means of the relation, the all-regulating relation, constantly and comprehensively
kept in view; viz. the relation of means to end, the aim has all along been to give to
the branch of legislation here in question the form of an art, and in respect of
comprehensiveness as well as precision, the form (but if possible without the
repulsiveness) of a science.

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[Back to Table of Contents]

CHAPTER II.

RELATION OF LAW TO HAPPINESS—OF PROCEDURE
TO THE MAIN BODY OF THE LAW—OF EVIDENCE TO
PROCEDURE.

§ 1.

Relation Of Law To Happiness—Of Judicature, I. E. Judicial
Procedure, To Law.

Theadjective branch of law, or law of procedure, and therein the law of evidence, has
everywhere for its object, at least ought to have, the giving effect throughout to the
several regulations and arrangements of which the substantive branch or main body of
the law is composed.

As to the main or substantive branch, it has for its ultimate fruits happiness and
unhappiness, in infinitely diversified and ever-changing proportions; but, in the
meantime, for its immediate fruits, it has those fictitious indeed, but indispensably
employed, creatures of imagination and language, viz. rights and obligations: rights
its sweet fruits, pregnant with whatever is good, whether in the shape of security or
pleasure: obligations its bitter fruits, evil in themselves, good in so far as they are the
indispensable instruments of all created good, being necessary as well to the creation,
as to the preservation, of all law-created rights.

Vain would be the attempt to impose obligations—legal obligations:—vain, therefore,
the attempt to give effect to rights—to legal rights—unless, in a state of constant
preparation to give execution to the will of the sovereign in this behalf, there existed a
mass of physical force, superior to all resistance, which in the ordinary state of
political society could be likely in any case to be opposed by private hands; and to
which, accordingly, whether by reflection, or by habit and imitation, the members of
the community at large were in a state of constant disposition to pay, if not an active,
at least a passive and unresisting obedience.

This disposable force—the sort of person or character to whose disposition it stands
committed—is that which stands expressed by one common abstract denomination, as
employed in the singular number, viz. the judge: the judge, including in that one word
all persons—all the individuals—to whom, on any given occasion, for the purpose in
question, any portion of that force happens to be intrusted.

It is therefore by means, and in respect of the efficient service of this exalted
functionary rendered immediately to the sovereign in his quality of legislator, but
through him and in ultimate result to the community at large, that execution and

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effect—occasionally execution, and thus constantly effect—are given to those
expressions—those evidences—those repositories—those vehicles—of the
sovereign’s will, which are spoken of under the name of laws.

§ 2.

Relation Of Evidence To Judicature.

Be the law or portion of law what it may, antecedently to execution—if not in form, at
any rate in effect—if not expressed in words, declared at any rate by actions—comes
decision: judicial decision,—in official language called sometimes judgment,
sometimes decree, sometimes—itself or its difficultly distinguishable
consequences—by various other names, such as rule, order, writ, precept, mandate,
and the like.

In every instance in which, expressly or virtually, judgment is thus pronounced, two
propositions are expressly or virtually delivered; viz. a proposition concerning the
state of the law, and a proposition concerning the state of certain matters of fact—of
matters of fact which belong to the case, and to which the law that belongs to the case
is considered as applying itself. On the subject of the state of the law, the proposition
has for its ground, in the case of written, i. e. statute law, the very words of the law; of
that portion of the law, which on the occasion in question is in question:—in the case
of unwritten law, a sort of law, of the essence of which it is, not to have any
determinate set of words really belonging to it, the supposed purport of some portion
of written law, which on the occasion in question is feigned or imagined for the
purpose.

Thus much as to law:—in relation to matter of fact, the decision has for its ground the
evidence* by which term is on every occasion understood some other matter of fact,
which on that same occasion is presented to the mind or sense of the judge, for the
purpose of producing in his mind a persuasion assertive of the existence or non-
existence of a matter of fact first mentioned, which is always some individual matter
of fact supposed to be of that sort, which on the occasion in question the legislator is
supposed to have had in view.

Matters of fact being in such or such a state,—such and such (says the legislator) shall
be the state of right and thence of obligation:—he who is in such or such a situation
comprehended in that state, shall have a right to receive upon demand, such or such a
service at the hands of the judge. Placing himself in the plaintiff’s side, “I am in such
a situation,” says a man, addressing himself to the judge—“I am in such a
situation—it is therefore now your duty to render me that service.”

Thus, on each occasion on which a suit is instituted—a judicial demand preferred,—a
service of a nature adapted to the nature of the demand—a service always of the
positive cast—is by the plaintiff called for at the hands of the judge. At the same time,
if the demand be contested—the suit defended,—a service of an opposite nature—a
service of the negative cast—is called for on the part of the defendant,—a service

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which consists in the non-imposition of those obligations—those burthensome
obligations—obligations to act, to forbear, to suffer,—the imposition of which would
be necessary to the rendering to the plaintiff the service, be it what it may, which is
prayed for on his side.

Meantime, to constitute a foundation for this right, so far as depends upon the matter
of fact, there can be nothing but the evidence:—for the reception of which, to the
purpose of rendering, in conformity to the will declared as above by the legislator,
either the positive service prayed on the plaintiff’s side, or the opposite and negative
service prayed on the defendant’s side, according as the plaintiff is or is not in the
situation in which he says he is, the judicatory cannot but lie equally open on both
sides.

In this state of things, if on the ground of matter of fact it happen to the plaintiff to
fail—to fail of making out his right to the service prayed for—he at the same time
having that right,—it may be in one or other of three ways, and it cannot be in any
ulterior way:—1. Evidence necessary and sufficient to the formation of the ground in
question is not forthcoming; 2. Forthcoming and standing alone, i. e. without counter-
evidence on the defendant’s side, it fails of obtaining the necessary credence; 3. On
defendant’s side, counter-evidence—evidence, the belief of which is incompatible
with the belief of that which is adduced on the plaintiff’s side, obtains stronger
credence. But by the supposition, the plaintiff has really a right to the service which
he demands:—this being the case, what follows by the same supposition is—that in
the evidence adduced on the part of the defendant, there is something of
incorrectness, or partially-operating incompleteness—something, at any rate, which
thereby has produced a deceptious effect on the judgment of the judge.

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CHAPTER III.

ENDS OF JUSTICE ON THE OCCASION OF
JUDICATURE.*

§ 1.

True Or Proper Ends Of Judicature.

The aggregate of the objects thus meant to be designated, being the standard of
reference, to which, through the whole course of this work, every other object will be
referred—the test by which everything will be tried—everything that is approved of,
approved;—everything that is condemned, condemned;—it seemed necessary, thus, at
the very outset, to bring together, under one view, a list of those same objects, placed
in such sort, that, as well each by itself, as their mutual relations and dependencies
being clearly understood, may on each succeeding occasion be present, or capable of
being readily presented to the mind.

Of the ends of judicature, were there none of them but what were capable of being
presented in a positive or affirmative shape, the list night be very short.

I. In case of wrong supposed to have already been committed:—

1. Application of the matter of satisfaction where due,—and in the shape in which it
is due.

2. Where on the score of punishment ulterior suffering† is supposed necessary,
application of such suffering where due, and in the shape in which it is due.

II. In the case where no wrong is supposed to have been committed, but, at the hands
of the judge, a service, consisting generally in the conferring of some new right‡ on
the plaintiff or demandant, is demanded.

3. Collation of right where due, and in the shape in which it is due.

4. Reddition of judicial service at large* where due, and in the shape in which it is
due.

Thus short and simple might be the list of the ends of judicature, were there none but
such as are of the positive cast, such as are the above, to call upon the legislator for his
regard.

But for the accomplishment of those positive ends—for the production of good in
those positive shapes—let any course be taken—even the best imaginable—evil in

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various shapes is still liable to be produced:—and of this evil, so many shapes as there
may be any use in distinguishing, so many negative ends or objects may be assigned
as possessing, on the occasion of judicature, a demand for attention and pursuit on the
part of the judge:—the good, that the production of it may, as far as possible, be
accomplished;—the evil, that the production of it may, as far as possible, be
prevented.

Of these negative ends of judicature, the description cannot in any other way be given
than by giving a list of the several evils, by the prevention or avoidance of which, in
so far as possible, these several ends are proportionably accomplished. Of these evils,
the list may stand as follows, viz.—

1. Referable to the penal and the non-penal† departments of the fields of law taken
together, directly-resulting evils incident to judicature—i. e. evils resulting in a direct
way from misapplication of the power of judicature:—

1. Non-application of the matter of satisfaction where due.

2. Application of the matter of satisfaction (though it be where due) in a shape‡ not
due.

3. Application of the matter of satisfaction where not due.

4. Non-application of the matter of punishment where due.

5. Application of the matter of punishment (though it be where due) in a shape not
due.

6. Application of the matter of punishment where not due.

7. Non-collation of right where due.

8. Collation of right in a shape not due.

9. Collation of right where not due.

10. Non-reddition of judicial service (at large)? where due.

11. Reddition of judicial service in a shape not due.

12. Reddition of judicial service where not due.

If the error be only in respect of quality, the quantity being exactly what is due, the
evil (it may occur) may be but imaginary. The answer is—if it be the evil of the first
order, and nothing farther, that is looked for;—yes; viz. that which has for its seat the
feelings of the parties on either side, or on both sides: notwithstanding the error,
quantity—of suffering on the one side, of enjoyment on the other—being by the
supposition the same as if there had been no such error. But, however it may be in the
case of satisfaction, in the case of punishment, if as by the supposition there be an

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error in respect of quality, the effects of that error will render themselves sensible, by
the production of evil of the second order, i. e. the people at large will, in some shape
or other, viz. danger or alarm, or both, be sufferers from it. Of the importance of
quality in punishment, and of the distinction between first and second orders as
applied to evil and to good, views have been given in other places.*

Referable still to the same two departments, follow in the list of evils incident to
judicature, such as may be termed collaterally resulting—evils resulting in a collateral
way from the misapplication of the powers of judicature:—

1. Delay, where, and in so far as, unnecessary or preponderant.†

2. Vexation, where, and in so far as, unnecessary or preponderant.

3. Expense, where, and in so far as, unnecessary or preponderant.‡

In the word misdecision, we have a general term, under which any decision, under and
by virtue of which any of the above-mentioned evils, mentioned as correspondent, and
opposite to the direct negative ends of judicature, are considered as produced.*

Given the ends of justice on the occasion of judicature, given in the same degree of
detail are the duties of the judge.

If, as it has been endeavoured to be made, this analysis be found all-comprehensive,
every imaginable breach of duty commissible on the part of a judge, as such, will be
found referable to one or more of the heads contained in it.

§ 2.

False, But Actual Ends Of Judicature.

The objects hitherto brought to view, under the name of the ends of judicature, are
those which seemed the proper, or, in one sense of the word true, the true ends of
judicature.

Opposite to these ends stand those which, it should seem, may without impropriety be
termed the improper ends, or, in one sense of the word false, the false:—in England,
at least, these, alas! will be found to have always been—not to say to be—the actual
ends.

In England, in the early ages of the constitution, reckoning from the Norman
conquest, the one all-embracing false end may be stated as having for its
correspondent interest, private and personal, the sinister interest of the monarch: his
sinister interest, in the several shapes in which the sinister interest of a public man is
capable of displaying itself, viz. those of which the objects are, respectively, money,
power, reputation (reputation, when operating upon an extensive scale, called fame,)
constantly ease, and occasionally vengeance.*

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To the sinister interest of the monarch, the indolence and imbecility incident to that
situation, joined to the necessary industry and comparative mental vigour of his
instruments and substitutes, the judges, substituted by degrees, and in a principal
degree, the sinister interests of these his subordinates:—the seat of the sinister interest
thus gradually shifting, the shapes in which it operated still the same.

Among the false ends, the above may be termed the direct ends of judicature. Relation
had to these, the name of collateral ends may be given to those which correspond
with the sinister interests of those other members of the governing body who, in the
character of sinecurists, or over-paid placemen, or holders of needless places or
otherwise, have, for the benefit of their support, been suffered without repugnance to
come in for shares in the profits of high-seated and irresistible depredation:—fruits of
scientifically and diligently cultivated delay, vexation, and expense.

Among these, a place of pre-eminence is due to the man of finance, who—from taxes,
whether under the name of taxes, or under the name of fees, imposed upon justice (i.
e. from the sale of that commodity to all those who have wherewithal to pay for it,
coupled with the denial of it to all who have not,) over and above any part of the
produce which, on any such false pretence as that of official labour performed, he
may have contrived to put into his own pocket, or that of this or that more or less near
connexion—derives that comparative ease which, from a hundredth part of the same
suffering, inflicted upon an equal number of patients, capable of making their cries
heard in concert, might receive intolerable disturbance.†

In the fabrication of priest-made religion, even in its most pernicious forms, the
predominance of sinister interest would scarcely he found more incontestable than it
may be seen to be in judge-made law—seen even in the picture given of it by
Blackstone—seen notwithstanding all his varnishes.

For the sake of emolument and advantage in other shapes extractible out of the
expense, to manufacture on every occasion, in the greatest endurable quantity, the
inseparably-interwoven tissue of abuses—viz. unnecessary delay, vexation, and
expense—may be seen throughout to have been the only real object of solicitude.
Fortunately, in pursuit of the only real object, it was not possible to proceed without
the appearance, nor even altogether without the reality of justice; and to the necessity
thus produced may, without much danger of error, be ascribed what little of justice
may be found perceptible in the result.

Bearing in mind thus much, the reader, learned or unlearned, will find himself in a
condition to account for the several phenomena of actual law, as they present
themselves to view: if, on the contrary, the burthen be felt too heavy for endurance,
everything he sees will be an effect without a cause.

As human nature is constituted, the preservation of the individual and of the species
depending upon the ascendency universally maintained (here and there an
extraordinary case excepted) by self-regarding over social interests; so in judicature,
as in every other department of government, the preference has of course been all
along given to the false ends, in their competition with the true: the false ends, as

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above described, having all along been pursued, as far as the craft or indifference of
the monarch, and the blindness or patience of the people, would permit: the true
pursued so far, and so far only, as reality appeared necessary to the keeping up of
appearance.

Read the history of the Council of Trent, as written by Paul Sarpi. Observe by what
springs of action each result was produced: believe the actors themselves, by
piety—everything by pure piety: believe the historian, by everything but piety.

Such as was the share which piety had in the production of that portion of
ecclesiastical law which received its establishment from the council of Trent, such, or
thereabouts, may be seen to have been the share which the love of justice had in the
production of that part of the rule of action which, instead of the legislator, has had
judges for its authors; particularly that part which is composed of the law of
procedure, and in the law of procedure, that which is composed of the law of
evidence.

Of the present sketch, few, perhaps, are the pages that may not be seen to add, more
or less, to the proof of that instructive truth. But in the chapter on Exclusion, the
section which speaks of that operation, as performed on the ground of a supposed
danger of deception, will perhaps be found to comprehend within the smallest
compass, the greatest quantity of such matter as concurs in giving probability to that
inference.

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CHAPTER IV.

DUTIES OF THE LEGISLATOR IN RELATION TO
EVIDENCE.

§ 1.

List Of These Duties.

After what has been said of the relation of judicature to law, and of evidence to
judicature, the duties of the legislator, in relation to evidence, will, it is supposed, be
found comprisable under the six following heads—under each of which follow a few
words of explanation, together with a brief intimation of the sort of regard paid to
these duties in English practice. For giving expression to them, the imperative mood
has been suggested by grammatical convenience:—

1. For the support of every right conferred, of every obligation imposed by you, do
whatsoever is in your power towards the securing existence, and thereafter
forthcomingness* to whatsoever evidence may be necessary:—saving on each
individual occasion all due regard to the collateral ends of judicature,† as above
indicated.

2. Avoid putting an exclusion upon evidence on every occasion on which exclusion of
evidence is improper;—as it will be shown to be in every case, except those in which
it is called for by a due regard‡ to the collateral ends of judicature.

3. Put an exclusion* upon evidence on every occasion on which exclusion is
proper;—as it will be shown to be, on every occasion on which it is called for by a
due regard to the collateral ends of judicature.

4. So order matters, as far as may be, that on each individual occasion, whatsoever
evidence comes to have been received, shall not, in respect of the degree of
persuasion produced by it in the mind of the judge, operate with an effect greater†
than its due effect.

5. Nor less† than its due effect.

6. So order matters, that saving always the regard due to the collateral ends of justice,
each article of evidence shall, to the mind of the judge, present itself in its best
shape:‡ — meaning, by its best shape, that in which it is least likely to be productive
of deception—to operate with an effect greater, or with an effect less than what is
due.

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7. By arrangements of a general complexion, taken beforehand, do what the nature of
the case admits of, not only towards securing in each instance, as above, the
forthcomingness of such necessary evidence as may happen to have been brought by
other causes into existence, but also towards securing existence to such necessary lots
of evidence.

N. B. Evidence brought into existence by the operation of the sort of providence thus
indicated, will herein be designated by the appellation of pre-appointed evidence.

§ 2.

Regard Paid To These Duties In English Practice.

Such, in as far as the view here taken of the subject may be found correct, being the
list of the duties or tasks proper to be performed by the legislator—understand
always, by the sovereign in his character of legislator—in the field of evidence, a brief
intimation of the sort and degree of regard, which, it is supposed, will be found to
have been paid in English practice to these duties, may even, in this early stage of the
inquiry, be not altogether without its use.

As to the sovereign, considered in his character of legislator, on English ground in
particular, in relation to the whole extent of this part of the field of action, the most
supine neglect will, on his part, be everywhere but too discernible: arrangements, on
which justice is so completely dependent, left, almost without exception, to be made
by sinister interest, and interest-begotten prejudice, in the person of the judge:—of the
judge who, in this as in all other parts of the field of law, pretending to find already
made whatsoever he makes, makes and mars exactly what he pleases. If here and
there, to this or that arrangement the touch of the legislative sceptre may be seen
applied, it is, in every instance, by the hand of the judge that the instrument has been
guided, no symptoms of thinking being anywhere perceptible, on the part of that
which should have been, and is spoken of as if it were, the all-directing mind.

1. Under the head of forthcomingness, as above explained, the system of
arrangements provided have, in proportion as they have been looked into, been found
in a deplorable degree scanty, inapposite, inconsistent, and inadequate. But the system
of procedure—judicial procedure at large—being the system to which arrangements
of this description properly belong, it can only be in an incidental way that any such
deficiencies can meet the eye, in the course of the present work.

2. In regard to the system of exclusion, pursued to so prodigious an extent, and with
not less prodigious inconsistency, if the observations that will be brought to view are
found just, it will be seen to be groundless and pernicious, to an extent little short of
that to which it has been applied.

3. In regard to the applying the exclusion, on any such ground as that of preponderant
inconvenience, in the shape of delay, vexation, and expense—thereby embracing the
lesser evil in preference to the greater—of any such application of human prudence,

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scarcely an idea will be to be found:—cases of vexation to a small extent only
excepted—cases in which, to the greater part of that small extent, the supposed
vexation will be found to be purely imaginary, not having any existence independent
of that which is inseparably attached to such infliction, as in the name of punishment
or satisfaction (obligation of rendering satisfaction,) cannot but be assumed to be due.

4 & 5. In regard to the affording assistance and guidance to the judge, in forming his
estimate of the probative force of evidence, so that in each instance the effect
produced by it in the way of persuasion on the mind, may be neither greater nor less
than what is its due, this whole quarter of the field will be found a complete blank.
Nothing was done, or so much as thought of being done, but by the operation of
will:—nothing by assistance afforded to intelligence. Instead of instruction, exclusion
employed as above.

6. In regard to shape, putting aside the best, which, as having been originally the only
shape, is the most obvious* as well as the simplest shape,—by an abuse of the art of
writing, it has been the art and care of the English judge to give (as will be seen) to
evidence, in so far as hath lain in his power, the two most deceptious, and in every
respect the worst shapes† that could be given to it: in doing which, his own sinister
interest has (it will be seen) in various shapes been promoted, while the interests of
the public, in respect of truth, morality, and justice, have thereby been sacrificed: nor
in this case, on the part of the legislator, have the transgressions of the judge been
merely the result of blind confidence reposed in that subordinate;—the sinister
interests of the leaders in legislation having on this ground interwoven themselves
with, and given effect to, the sinister interests of the judge.

7. Under the head of pre-appointed evidence, it will be seen how badly individual
prudence has, on this part of the field, been seconded and supported by legislative
providence.

By general rules, which he has seen and suffered to be deduced from practice—from
judicial practice—the legislator breeding and nourishing in every bosom the
expectation of seeing his enforcing sanction applied to contracts of all sorts—to
agreements and conveyances,—while the judge, by unpre-announced and
unforseeable exceptions, without reason, and without end, has been violating the
engagements taken by these same rules; the legislator looking on, and, by his
perpetual connivance, making himself a perpetual accomplice in this perpetual breach
of faith.*

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CHAPTER V.

PROBATIVE FORCE—WHENCE MEASURED—HOW
INCREASED—HOW DIMINISHED.

§ 1.

Whence Measured—Standard Quantity.

In regard to evidence, such as hath just been seen, being the legislator’s duties, and
amongst them, the doing what depends upon his power, including in this case in a
more especial manner, his wisdom—towards preventing evidence from operating, in
any case, either with greater or with less effect than is its due, hence it is that,—as in
the instance of any one article of evidence it is an object (how difficultly-soever
attainable.) highly desirable, to know what degree of probative force is the due of that
one article of evidence,—so (what may be found not quite so difficult,) as between
two articles of evidence, exhibired on the opposite sides of the cause, which it is that
ought to be considered as possessed of the greatest degree of probative force. This
being the case, a preliminary point, alike necessary to either purpose, will be seen to
be the fixing upon some describable quantity of probative force capable of being
referred to in the character of a standard quantity, from which, in every case, as well
increase as diminution—diminution as increase, may be capable of being measured.
If, in this as in so many other instances, the nature of the case admits of little
precision,—if, in this as in so many other instances, ignorance and weakness are the
lot of human nature,—it is not the less needful to us to make ourselves as well
acquainted as possible with the nature and degree of that ignorance and weakness.

To this standard, then, will the reference be made, as often as, by the operation of this
or that circumstance in the character of a cause, either superiority or inferiority, in the
probative force of this or that article of evidence, is considered as being produced.

For this standard of reference, take, for example, a portion of discourse, orally
delivered in the hearing of one or more persons;—a portion of discourse, by which a
person, whose reputation in respect of trustworthiness, as applied to the purpose in
question, is, in all points, upon the ordinary medium, or average level: or rather (what
comes to the same thing, and presents a sort of condition, the fulfilment of which is
much more easily ascertained,) whose character is not known: this person, let him
assert or declare himself to have been, at a time and place individually described, a
percipient witness of the existence of the matter of fact in question; it being such, that,
of the existence and nature of it, every person of sound mind is qualified to obtain
adequately strong and distinct perceptions, form an adequately correct judgment, and
retain an adequately correct and complete remembrance.

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In this standard lot of evidence, as thus described, two particular circumstances, in the
character of potential causes of increase or diminution of probative force, will require
to be noted; viz. 1. The source from which the evidence—the information—springs,
and is delivered; and, 2. The shape in which it is delivered.

In relation to the source, again, two particulars may be observed; viz. 1. The nature or
quality of it, as delivered in to the judge or other person for whose use it is destined;
2. The propinquity or nearness of it in relation to the seat of perception; viz. of those
perceptions, the existence of which is asserted by it.

§ 2.

Sources Of Increase.

As to increase and superiority, consider now by what means it is, that, to the standard
degree of probative force, as thus described, any addition can be made.

1. In regard to the quality of the source, one means by which probative force is
capable of being added to it is—by substituting to a declaration of this unknown
person, a declaration to the same effect, made by a person selected* for this purpose,
in contemplation, and under the persuasion of a superior degree of relative
trustworthiness as existing in his instance. 2. Another obvious, and much less
questionable mode is—by adding to the number of the persons, in whose declarations,
in relation to the supposed matter of fact, an exact coincidence has manifested itself.
3. In respect of propinquity with relation to the source of perception, if the narrating
witness, as above described, was himself the percipient witness, to whose senses the
perceptions in question manifested themselves, probative force admits not, it is
manifest, any increase.

Decrease, on the other hand, it will be found to admit of, and to any imaginable
degree; viz. in the case where the matter of fact, the perception of which is thus
expressed, is, by the person by whom it is expressed, stated as having been
perceived—not by himself, the narrating witness, but by some other person or
persons,* on whose credit the existence of the supposed matter of fact is thus averred.

Thus much concerning the source of the evidence or information.

As to the shape;—of the shape in which the standard lot of evidence, as above
described, is supposed to have made its appearance, what is plain enough is, that it is
not only the natural shape, but the only natural shape. But by means of a variety of
additaments—instruments—operations—states of things—arrangements,—of which,
under the collective name of securities for trustworthiness—securities against
deceptious incorrectness and incompleteness in evidence, particular mention will be
made, whatsoever probative force belongs to the information in this its natural and
primitive shape will presently be seen to have received additions, the importance of
which will not be found to be open to dispute.

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§ 3.

Source Of Diminution.

As to what concerns the source, and in particular the quality of that source, what is
manifest enough is—that by any circumstance by which the trustworthiness of the
person in question is diminished, the probative force of the evidence deduced from
that source, or passing through that channel, will be proportionally reduced. Of the
causes of trustworthiness and untrustworthiness† in testimony, a view is given under
the head so denominated.

As to remoteness from the source of narration—from the supposed seat of
perception—in the character of a quality, by which, in proportion to the degree of it, a
correspondent defalcation cannot but be made from the probative force of the
evidence so circumstanced, it has already been brought to view.

As to the shape;—of the circumstances, upon which the inferiority or superiority of
an article of evidence in this particular depends, intimation has just been given. By
any addition made, of any of them, to the standard species of evidence, the
trustworthiness of the article has already been spoken of as receiving a correspondent
addition and increase.

But, admitting such to be their virtue and effect, it will follow that, except in so far as
it may happen that the application of them stands prohibited by preponderant
inconvenience, in the shape of delay, vexation, and expense, the whole aggregate of
these securities should, in every instance, be employed to bear upon the evidence.
This being supposed, the absence or non-application of any of them may, with
reference to the article of evidence in question, be considered as operative of a
defalcation made from the due and proper quantity of its probative force, and thence
as a cause of comparative untrustworthiness, if not on the part of the person in
question, at any rate on the part of his evidence.

One cause of diminution of probative force—one cause of inferiority in point of
probative force, as between evidence and evidence, remains to be noted.

As yet, for simplicity’s sake, the matter of fact deposed to, as above, has been tacitly
supposed to be the very matter of fact in question, whatever it be.

But, independently of human testimony, between matters of fact themselves, such is
found to be the connexion, that by the existence, no matter how established, of one or
two connected facts, a persuasion, more or less strong, is produced, of the existence of
the others:—the fact, of the existence of which the persuasion is thus produced, call it
the principal fact; the fact by which such persuasion is produced, call it the
evidentiary fact.

Considered as tending to produce a persuasion of the existence of any fact viewed in
the character of a principal fact as thus explained, any other fact, thus operating in the
character of an evidentiary fact, may accordingly be termed, as in common parlance,

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as well as technical language it actually is termed, an article of circumstantial
evidence: and in contradistinction to such circumstantial evidence, whatsoever be the
particular matter of fact in question, any article of evidence, considered as applying to
it immediately, and not through the medium of any other matter of fact, is technically
as well as familiarly, as above,* termed an article of direct evidence.

Of the measure of probative force in evidence, the description will be found to be
different in the case of direct, which, in respect of the source from whence it issues, is
always personal evidence, as compared with circumstantial, which, although to a
certain extent, and in particular in the instance of deportment, it may, in respect of its
source, be considered as personal—will, moreover, to a considerable extent, in
respect of its having its source in the state of things as contradistinguished from
persons, be found to belong to the category of real evidence.

In the case of direct personal evidence, supposing, on the part of the matter of fact
affirmed, nothing of improbability, either on a physical or a psychological score, nor
any weakness in the force of the persuasion expressed in and by his testimony, its
probative force has for its measure the trustworthiness of the affirmant: in the case of
circumstantial evidence, the existence of the evidentiary fact being, either by the
perception obtained of it by the perceptive faculty of the judge himself, or by
unquestioned extraneous testimony, placed effectually out of dispute, probative force
may be said to depend altogether upon the closeness of the connexion,† between the
principal matter of fact, and the matter of fact which is considered as evidentiary of it.

As in the case of direct evidence, its probative force will, as already intimated, be
found to be rendered less and less, by and in proportion to the number of media
through which it has passed, or is supposed to have passed, so will it be seen to be in
the case of circumstantial evidence.

Between each pair of facts, the closeness of connexion being supposed in each
instance the same, then, if so it be, that matter of fact A is not evidentiary of matter of
fact C, but through the medium of matter of fact B (A being evidentiary of B, and B
of C,) it follows, that the probative force with which A is evidentiary of C, will be but
half as great as that with which A is evidentiary of B, or that with which B is
evidentiary of C.

Of the above-mentioned securities for trustworthiness, a summary view will presently
be given, as well as of what appears to be the mode of applying them with most
advantage to this their purpose. But previously, it has been found necessary to speak
of the mode of giving expression to the different degrees of which probative force is
susceptible, and thereafter to present a summary view of the objects already
mentioned under the denomination of causes of trustworthiness and
untrustworthiness.

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CHAPTER VI.

DEGREES OF PERSUASION—THENCE OF PROBATIVE
FORCE—HOW EXPRESSIBLE.

On the occasion, and for the purpose of decision—and for that same purpose, on the
occasion of deposition—the degrees of which persuasion is susceptible, in what
manner shall they find expression? In answer to this question, in the arithmetical
language of the doctrine of chances, mathematical science affords an established, and
hence an obvious mode. Unfortunately, correct as this mode is—and in truth the only
correct mode of which the nature of the case admits—it will presently be seen to be
altogether inapplicable to any judicial purpose. On the affirmative, as well as on the
disaffirmative side, in the mathematical scale of probability, the degrees rise above, as
well as sink below one another, on a scale to which there are no assignable limits.
But, on whatsoever grounds formed, a scale, with at least a fixed top belonging to it, if
not with a fixed bottom, is absolutely necessary to every legal purpose. In every case,
on one or other side, a degree high enough to warrant decision on that side is the one
thing needful.

In the case of affirmance, for any expression indicative of any degree above that
necessary degree, there cannot be any use: on the other hand, for expressions
indicative of degrees of persuasion below that degree, real and substantial uses, it will
be seen, may be found.

In a many-seated judicatory, the different votes are frequently the result of degrees of
persuasion widely different. Were matters so arranged, as that these degrees could,
each of them, find an adequate mode of expression,—in such case, what might every
now and then happen is—that a decision which, upon the present plan, is, by a small
majority, pronounced in favour of the affirmative side, would on that plan be
pronounced in favour of the disaffirmative side, and vice versa.

In the case of a judicial decision—whatsoever were the degree of force pitched upon
as sufficient, and at the same time necessary, to give to it its legal effect—from the
allowing a man to place the declared force of his persuasion at a degree as much
below that standard as he pleased, no inconvenience could possibly ensue. On the
other hand, if for giving to it a degree of force above the standard, an equal latitude
were allowed, no sooner were passion, in any degree, to enter upon the scene, than an
auction would commence; and to the biddings, forasmuch as there would be nothing
to pay, there would be no end.

When anything that bears the name of power is in question, be the nature of it what it
may, no great danger is incurred by allowing a man to give to it as little effect as he
pleases;—allow him to give as great an effect to it as he pleases, the consequences
need not be mentioned.

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Even when the judicatory has in it but a single seat,—even in this case, with a view to
appeal, a scale of this sort might be not altogether without its use. Not unfrequently, in
the mind of the judge, so confessedly near to an equilibrium are the contending forces,
that nothing but the necessity of deciding would have determined him to decide on the
side chosen by him, rather than on the other side.

In any such case, were the real degree of persuasion suffered to find its adequate
expression, appeal, where proper, would frequently find not only better
encouragement, but more substantial ground, than in the established mode, in which
the only degree of persuasion allowed to be declared, is that to which the highest
degree of practical effect is attached.

In the procedure of ancient Rome, judicial practice received a refinement, which has
found few or none to copy it. The judge, on whose mind the grounds on both sides
operated with equal weight, insomuch that, consistently with veracity, he could not
say that the scale of his judgment had turned on either side, nor, consistently with
probity, give the effect of a vote to either side, found in an appropriate form the means
of preserving in unsullied purity those virtues, the extirpation of which has, with such
conspicuous industry, and with proportionate success and profit, been laboured at by
English judges. Non liquet:—just grounds of decision being wanting to me, I will not
decide. No perjury here!—no torture! Destitute of such necessary instruments, how
could justice do her work?

To the witness’s box this same mode of expression would not be found less capable of
being applied, than to the bench: but in the case of the witness, for simplicity’s sake,
suppose but one witness, and in the breast of that witness let trustworthiness be entire.
On the part of the judge, the force of persuasion will, on this supposition, be the exact
copy of that of the witness, and the same numbers will give the expression of it. But
taking the public mind at its present state of culture, the debasement of the soil having
been the only object of such labour as by the official husbandman has been as yet
bestowed upon it, the refinement, appearing in this case still greater than in the other,
could do no otherwise than expect a proportionable resistance.

Of the particular plan of expression which, to the purpose in question, would be
necessary, the development must be confined to the body of the work. Lawyers of the
Roman school—lawyers of the English school—it will there be seen into what
awkward shifts—into what inadequate and uncharacteristic modes of expression they
were driven—driven by their endeavours to give expression to degrees of probability,
without having recourse to numbers.

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[Back to Table of Contents]

CHAPTER VII.

CAUSES OF TRUSTWORTHINESS AND
UNTRUSTWORTHINESS IN TESTIMONY—THENCE OF
BELIEF AND UNBELIEF.

§ 1.

Connexion Between Trustworthiness And Belief.

To form any substantially grounded estimate of the probative force of testimonial
evidence, it will be necessary to take a view, on the one hand, of the causes of
correctness and completeness—in other words, of trustworthiness;* on the other
hand, of deceptious incorrectness and incompleteness—in other words, of
untrustworthiness, in human discourse. Of these causes, the clearer our conception is,
the more distinct and correct will be our estimate of that force: and to these causes,
and to the conception, more or less accurate, which in each instance it happens to us
to form in relation to them,—to these sources it is, that we must look for the only
intelligible and practically useful account, that can be given of the foundation of
affirmative and disaffirmative persuasion,—of belief and unbelief.

Of trustworthiness, and of untrustworthiness, the causes are to be looked for, partly in
the state of the mental faculties, intellectual and moral, of the individual, partly in the
state of the external circumstances, to the operation of which it happens to those
faculties to stand exposed.

§ 2.

Intellectual Causes.

Of the intellectual faculties, in so far as they are in a state adapted to the purpose of
testimonial discourse, i. e. to the giving relative correctness and completeness to the
statement in the delivery of which they have borne a part, nothing in particular will be
to be said. But by any of those infirmities, to which they are respectively subject, any
statement which they have borne a part in the delivery of, is liable to be rendered in a
greater or less degree deceptiously incorrect or incomplete: hence the necessity of
observing the lines of separation by which they stand distinguished from each other,
and, in the character of causes of misreport, noting the weaknesses of which they are
respectively susceptible.

Simple perception, attention, judgment, memory,—by these terms may be brought to
view the sources, as by expression the vehicle, of discourse at large,—and thence of
testimonial discourse. As it is to these that we are to look for the intellectual causes of

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correctness and completeness in testimony, in so far as it is in a correct and complete
state; so likewise of its incorrectness or incompleteness, in so far as it is in an
incorrect or incomplete state. As to the imagination, contributing nothing to
correctness, or, in so far as it is distinet from memory, to completeness, so it is that
upon testimony it can scarcely operate in any other character, than that of a cause of
incorrectness or incompleteness, more particularly and obviously of incorrectness.
Acting under the orders of the will, and directing its exertions to a particular end, it
becomes invention: taking for its end deception, and that deception being pernicious,
the will its director, operating under the impulse or attraction of sinister
interest—(that is, as will be seen, of any interest or motive acting in that sinister
direction)—it becomes mendacity.

Perception, by its faintness, or indistinctness,—attention, by its absence, or its
weakness,—judgment, by its errors, of which the faintness of the perception, and the
absence or faintness of the attention, are among the causes,—memory by its absence,
its faintness, or its indistinctness,—thus it is, that these faculties, these fictitious
psychological entities, are liable to become each of them occasionally a cause of the
undesirable effect: and, as it is by expression alone that the state of the narrator’s
mind is communicated to, and impressed upon the intellectual faculties of the judge,
there is scarcely a modification, or instance, of incorrectness or incompleteness,
capable of being produced by an infirmity in any of those sources, that is not capable
of being produced by an infirmity in this vehicle.

To develope, and exemplify the modes and causes of the mischief as above indicated,
and at the same time to endeavour to bring to view such feeble, and unhappily but too
precarious remedies, as the nature of the case admits of, forms in the body of the work
the task of a chapter allotted to that purpose.

§ 3.

Moral Causes In General—Viz. The Several Sanctions.

As to moral causes,—not only incorrectness and incompleteness in testimony, but
(what seems almost to have escaped notice) correctness and completeness, owe their
existence to good and evil—to pleasure and pain—in experience or in prospect,
existing in the mind in the shape of interests, and, in so far as yet but in prospect,
operating in the shape of hope and fear, in the character of motives.*

Veracity, therefore, not less than mendacity, is the result of interest: and, in so far as
depends upon the will, it depends, in each instance, upon the effect of the conflict
between two opposite groupes of contending interests, which of them shall be the
result.

Collectively taken and ranged into groups, and deduced each group from a particular
source, and thereupon considered in the character of causes of human action in
general, and of discourse, including testimonial discourse in particular, these

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modifications of pleasure and pain, experienced or expected, have elsewhere been
brought to view under the name of sanctions.†

So far as they are considered as the result of causes purely physical, the action of
other rational agents from without not having any share in the production of them,
they are referable to a sanction which may be termed the physical, the purely physical,
sanction:—in so far as they are expected at the hands of rational agents, they have
been referred to one or other of three sanctions:—1. The popular or moral sanction;
2. The political, including the legal sanction; 3. The religious or supernatural
sanction. To the popular or moral sanction it is that they may be referred, in so far as
the pleasures or pains in question are considered as about to result, or liable
eventually to result, from the good or ill offices, and thence from the good or ill will,
thence again from the good or ill opinion, of other human beings: viz. in virtue of
whatsoever portion of liberty to this effect may have been left to them, by the state
and condition of the law.

To the legal, or (to take it in its full extent) the political sanction, they may be
referred, in so far as they are considered as about to result, or liable to result, from the
exercise of the powers of government, whether in the track of the legislative, the
judicial, or the administrative department. To the religious or supernatural they may
be referred, in so far as they are considered as about or liable to result from the
exercise of the powers of government, by the almighty hand of a supernatural and
invisible being, in the present life, or in a life to come.

§ 4.

The Physical Sanction.

I. In general, it costs less labour to report a matter of fact, with its circumstances, as
presented by the memory, than, at a moment’s warning, to invent, in a train of a given
length, circumstances, which, without being true, shall, to the very end, be taken for
such. So far as this observation agrees with the nature of the case, so far may the
physical sanction be said to operate in restraint of deceptious incorrectness and
incompleteness.

At the same time, if it be in strict form and high degree that correctness and
completeness are required, neither is the labour of the memory altogether free from
uneasiness: a labour which is the greater, the more distant in point of time the matters
of fact were, and at the time of perception the less impressive, especially if, of the first
impression, the recollection have not, in the meantime, been refreshed by intervening
interests: and here again we see the physical sanction operating—operating, but now
in the character of a cause—not of correctness and completeness, but of incorrectness
and incompleteness.

In the uncertainty on which side this purely physical sanction will operate with
greatest force, and in the comparative weakness with which it operates with a
preponderant force in favour of correctness and completeness, may be seen the

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demand which has place for the operation of the several other sanctions that have just
been mentioned—sanctions to which, in contradistinction to it, may be given the
common denomination of rationally-operating ones, inasmuch as in their respective
operations the reason—the judicial faculty—cannot but have been made to bear a
part.

§ 5.

Popular Or Moral Sanction.

II. In the second place, comes under review—the popular or moral sanction.

As to the direction in which, on the field of evidence, it operates, the restraint which,
generally speaking, it applies to deceptious incorrectness and incompleteness is
obvious, and furnishes the matter of the general rule.

Unhappily, out of this rule, ere it can in every part have been reduced within the limits
of exact truth, exceptions, and to no inconsiderable an extent, must be cut out of it.
Follows a brief indication of the groups in which they will be found arranged:—

1. Cases where, by contending interests or prejudices, a sort of schism, more or less
permanent, is produced, in the aggregate force of this sanction, form one class of
these exceptions.

2. Another class is composed of those in which, by the misapplied influence of the
political sanction,—i. e. of the constituted authorities, at whose disposal that influence
is placed—instead of being applied to the restriction, the force, not only of the
political, but thereby even of the popular sanction, is applied to the encouragement
and increase of deceptious incorrectness and incompleteness, and that, as there will
be occasion moreover to mention under the next head, in its most vicious and
pernicious form—mendacity.‡

On one and the same occasion, and even in the instance of the same individual, in
case of delinquency on his part, the force of the popular sauction may be seen acting
in opposite directions at once,—urging him on in or towards the path of mendacity on
the one hand—pulling him back from it on the other. In this conflict, which, then, will
prevail?—the mendacity-promoting, or the mendacity-restraining force? The act in
question being an immoral act, and by the popular or moral sanction reprobated as
such, brings shame upon him who is understood to be guilty of it: and the individual
in question being by the supposition actually guilty of it, if, on being interrogated, he
speak the truth, and thereby confesses himself guilty of it, he thereby subjects himself,
with more or less probability, to punishment, and at the same time with certainty to
shame. If, on the other hand, his answers to the interrogatories are in any respect that
which, to afford him any chance of safety, they must be, materially false, no sooner
does detection follow (nor can he ever see that instant, in the next to which it may not
follow) than his lot becomes, in this case also, the same. To note the existence of this
conflict, is all that belongs to the present purpose: as to the result of it, obviously

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enough it will on each individual occasion depend on the preponderance, as between
the aggregate force of the motives operating on the one side, and the aggregate force
of the motives operating on the other side.

Thus much as to direction. As to force, to the obvious and but too indisputable
insufficiency of this sanction, in cases where mendacity-promoting interests are in a
condition to act with those degrees of force which are but too commonly exemplified,
is referable that demand, of which the existence is so universally acknowledged, for
the more steady as well as impressive force of the political sanction: especially in that
regulated and conspicuous form, in which it is made to operate in the band of the
judge.

§ 6.

The Political, Including The Legal Sanction.

III. In the third place, comes the political or legal sanction.

Follows a list of the topics which, in relation to this sanction, and its applicability and
application in restraint of deceptious incorrectness and incompleteness, will come
under review:—

1. Cases or points, in relation to which, in restraint of deceptious incorrectness and
incompleteness, in judicially delivered testimony, this sanction is in its nature capable
of being made to operate with a degree of efficiency superior to that of the popular or
moral sanction.

2. Cases or points, in relation to which, in restraint of mendacity, the force of the
popular sanction being divided against itself, as above, the force of the legal sanction
is wont to be made to operate with a degree of uniformity greater than that which the
force of the popular sanction operates with, in these same cases.

3. Occasions on which, it being radically inapplicable to this purpose, the legal finds
itself obliged to resign its task to the force of the moral and religious sanctions.*

4. Occasions on which, under and by virtue of English law, its operation is rendered
habitually adverse to truth, habitually subservient to mendacity, and upon an all-
comprehensive scale, actually, and to a great extent purposely, productive of that most
pernicious and all-infecting vice.

§ 7.

The Religious Sanction.

IV. In the fourth and last place, comes the religious sanction.

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Under every religion, what is but natural is—that to every important purpose, whether
it be from legal operation, or from any other source, that the importance of the
purpose is derived, the religious sanction should, with its whole force, be made to
operate in restraint of mendacity:—in restraint of deceptious incorrectness and
incompleteness. The influence of a master on the minds of his disciples—the power of
a leader over the conduct of his followers—depends upon the correctness and
completeness of the judgment he is enabled to form, as to what their conduct on every
occasion material to his purpose eventually will be: and thence, upon the correctness
and completeness of such information as be can obtain, as to what their conduct and
mode of being is and has been:—their mode of being, in every imaginable point, not
excepting their most secret thoughts, intentions, affections, and opinions.

In the religion of Moses, and in the religion of Jesus, the energy, as well as steadiness,
with which the force of the religious sanction is applied to this purpose, are
observable in a pre-eminent and conspicuous degree.*

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[Back to Table of Contents]

CHAPTER VIII.

OF THE SECURITIES FOR TRUSTWORTHINESS IN
EVIDENCE.

§ 1.

Qualities Desirable In Evidence.

1. Qualities desirable in an article of evidence:—these, for distinction sake, may be
termed the internal securities for trustworthiness in evidence.

2. Instruments—operations—states of things—arrangements, legislative and judicial,
which have presented themselves as conducive to the investing of the subject in
question with these desirable qualities:—these may be termed the external securities
for trustworthiness in evidence.

Correctness and completeness—by these two already so often mentioned appellatives,
are presented two qualities, obviously desirable, both of them, in every article of
evidence—each of them for its own sake, and without need of having its utility
enhanced by subserviency to any other quality;—unless, for the expression of that
desirable quality, to which they are both subservient, some such term as
undeceptiousness were provided and employed. Correctness and completeness—call
them accordingly qualities of the first order—primary qualities—qualities
intrinsically—on an intrinsic account—on their own account—desirable.

Of these important and desirable qualities, a perfectly correct conception will
scarcely, however, be formed, unless their respective opposites, incorrectness and
incompleteness, be taken into account, and their import limited by an adjunct bearing
reference to these opposities.

This adjunct is deceptious.

In a statement or narration, delivered by any person, on any occasion, in relation to
any matter of fact, particulars may have had place in any number, which, though
altogether true in themselves, may be equally immaterial in relation to the question,
whatever it be, which happens to be on the carpet.—So many as there are of these
immaterial or irrelevant particulars, so many are there, in respect of which it may
happen, that neither incompleteness, i. e. partial omission, nor incorrectness, i. e.
misrepresentation, shall, with reference to the matter in question, be productive of any
deceptious effects.

By correctness, therefore, must, on this occasion, be understood—not absolute, but
relative correctness;—by completeness, not absolute, but relative completeness:—in

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other words, by correctness, that and that alone, which has for its opposite, deceptious
incorrectness—by completeness, that, and that alone, which has for its opposite,
deceptious incompleteness;—incompleteness, in that case, and in that case alone,
where, in relation to the matter of fact in question, deception is amongst the effects
which it has a tendency to produce.

Taking the above for the qualities desirable on their own account, the following are
the secondary qualities, which present themselves as desirable, on account of those
same primary qualities, viz. in the character of means subservient to the purpose of
securing to the article of evidence in question, the possession of those same primary
qualities.

To save the critic ear from excruciation, to the abstract substantive let us substitute the
concrete adjective. By one or other of the following epithets may be expressed, it is
supposed, all the qualities which, in the character of secondary qualities, can
contribute to invest an article of evidence with either of these primary ones:—1.
Veracious; 2. Particularized; 3. Distinct; 4. Interrogated, i. e. extracted, and thence
completed, and if need be corrected, and explained, by interrogation; 5. Permanent, i.
e. consigned to, and expressed by those permanent characters, of which written
language affords the most convenient as well as familiar example; 6. Unpremeditated,
in so far as a design of falsehood might receive assistance from premeditation; 7.
Recollected, in so far as recollectedness may be necessary to truth, i. e. to relative
correctness and completeness; 8. Not assisted by undue suggestion, i. e. by suggestion
by which falsehood would be more likely to be served than truth; 9. Assisted by due
suggestion, i. e. by suggestion by which truth would be more likely to be served than
falsehood.

§ 2.

Instruments Of Security, For Securing To Evidence Those
Qualities.

The following are the heads, under which every instrument, capable of serving in that
character with advantage, will, it is supposed, be found reducible:—

1. Punishment.

2. Shame.

3. Interrogation (including counter-interrogation.)

4. Counter-evidence—admission given to it.

5. Writing—use made of it for giving permanence, &c. to evidence.

6. Publicity—to most purposes, and on most occasions.

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7. Privacy—to some purposes, and on some occasions.

Under each of these heads, follow a few words of explanation:—

§ 3.

Punishment.

Of the force of the political sanction, considered as applicable in the character of a
source of security against deceptious incorrectness and incompleteness in evidence,
mention has been made above. Punishment is, to every eye, the most extensively
applicable, and in general the most efficient, shape, in which, to this as well as other
purposes, that force can be applied.

Quantity—quality—in this place, under neither of these predicaments, need anything
be said: on both of them, though without any special reference to evidence,
consideration has already been bestowed in other places.* Remains as the only topic,
for consideration of which any special demand presents itself in this place, that of the
extent proper to be given to the use of this instrument, in its application to the purpose
here in view.

Mendacity being but an instrument in the hand of delinquency—an instrument
applicable to the purpose of giving birth, through delinquency, to mischief in all its
shapes,—co-extensive surely with the mischief producible by mendacity ought to be
the application of punishment, in so far as punishment is, with preponderant
advantage, applicable to the prevention of it.

In the track of judicial procedure in particular, co-extensive with the application and
applicability of that instrument of mischief, ought to be the application of this remedy.

§ 4.

Judge And Co.—False Evidence Rendered By Them
Dispunishable, Where Profitable To Themselves.—Mendacity
Licence.

Thus much as to propriety:—for practice, learned ingenuity has discovered and
pursued a more convenient course.

Under the English, not to speak of other systems of technical procedure, by means of
the command, so easily, when indirectly, exercised by power over language, an
expedient was found for rendering mendacity punishable or unpunishable at pleasure.
In the person of a party litigant, or a witness, when it was to be rendered punishable,
the allegation or statement was called evidence; and to mark it as such, a particular
ceremony—the ceremony of an oath—was made to accompany the delivery of it.
When it was to be rendered dispunishable, it was not to be called evidence:—it was to

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be called pleading—pleadings—anything but evidence;—and the ceremony was to be
carefully kept from touching it.

At this time of day, few tasks would naturally be more difficult, than that of satisfying
the English lawyer, that pleadings not upon oath—that anything, in a word, which in
legal use has been carefully and customarily distinguished from evidence, can with
propriety be termed evidence. But though, thanks to his ingenuity, so it is that
pleadings,—all pleadings at least,—are not evidence in name, yet so it is, that
everything that goes by the name of pleading is evidence in effect. All testimonial
evidence is statement—narration—assertion:—everything that goes by the name of
pleadings is so too. Of evidence, the use and the sole use, is to command
decision:—by pleadings, decision is commanded, and in cases to a vast extent and in
continual recurrence, and with a degree of certainty altogether denied to evidence.

To the purpose of imposing on the adverse party the obligation of going on with the
suit, the contents of every instrument included under the name of pleadings, how
replete soever with manifest falsehood, are taken for true, and as such, without the
name, have the effect of evidence. The effect (it may be said) is but provisional: but
definitively, to the purpose of giving to the suit a termination favourable to the party
by whom the instrument is exhibited,—to the purpose of producing a decision—a
decision as favourable to him as could be produced by anything to which the name of
evidence has been left,—to the purpose of producing the selfsame decision, which, by
evidence, supposing it believed, would be produced,—it has the effect—not simply of
evidence, but of conclusive evidence:—the party who fails to meet the instrument in
question, by that instrument which at the next step, on the other side, ought, in the
appointed course to follow it, loses his cause.

Of this eventually conclusive evidence, the power, it may be said, cannot be great:
since, by so proper and simple an operation as that of exhibiting the corresponding
counter-instrument, the party to whose prejudice the conclusion would operate gets
rid of it. Simple enough,—Yes: but instances are but too abundant, in which the
operation, simple as it is, is impracticable—foreknown to be impracticable. To the
performance of the operation, money is necessary: and on that side, money being by
the other side known not to be forthcoming, what is thereby known is, that the
exhibition of the counter-instrument is not practicable. It is accordingly because
foreknown to be impracticable, that the operation is thus called for: for which
purpose, falsehood, the most barefaced falsehood, is admitted to serve, admitted by
those judges to whom its quality is no secret:—admitted with exactly the same
composure as if it were known to be the strictest truth.

Thus it is, that, under favour of the mendacity thus established, every man who, being
to a degree opulent, has, or desires to take, for his adversary, a man to a certain degree
less opulent, has it in his power, whether on the plaintiff’s side, or on the defendant’s
side, to give to his judicially delivered allegations, by what name soever
denominated—pleadings or any other—the effect of evidence: the effect not only of
evidence, but of conclusive evidence.

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Online Library of Liberty: The Works of Jeremy Bentham, vol. 6

And thus it is, that by the forbearance—the astute forbearance—to give, to the
security afforded by punishment, the extent necessary to justice, mendacity is
generated and cherished—injustice through misdecision produced:—the evils
opposite to the direct ends of justice, produced, by means of the evils opposite to the
collateral ends of justice.

Among lawyers, and more especially among English lawyers, so commodiously, and
thence so universally, is custom accepted as an adequate substitute for reason—so
unprecedented is it for a man to trouble himself with any such thought, as in regard to
any of the established torments, out of which his comforts are extracted, what in point
of utility and justice may have been the ground for the establishing of them,—or so
much as, whether they have, or ever had, any such ground at all,—that at the first
mention, a question to any such effect will be apt to present itself to them, as no less
novel, than idle and absurd. But concerning judgment by default, and everything that
is equivalent to it* —be it in a House of Commons,—be it in a House of Lords,—or
be it in any other place,—should any such misfortune happen to him, as to feel
himself under a necessity of finding something in the character of a reason to give, in
answer to the question—why it is that judgment by default is made to follow upon
default,—his reason would be this or nothing, viz. that in this case, on the defaulting
side, want of merits is inferred; and not only so, but that it is from the allegations
contained in the instrument last delivered on the other side—it is from that, and
nothing else, that the inference is deduced.

At the same time, that which, be he who he may, is well known to him—or at least,
but for his own wilful default, would be known to him—that which he has always in
his hands the means of knowing—means beyond comparison more ready than any
which are possessed by the vast multitude, who, at the instance of his tongue, and by
the power of his hand, are so incessantly and remorselessly punished—punished for
not knowing that which it has so diligently and effectually been rendered impossible
they should know, is—that, in the case of an average individual, the chances against
the truth of the conclusion, thus built and acted upon, are many to one.

To be assured of this, all that a man has to do, is—on the one side of the account, to
look at the average, or even at the minimum amount of the costs on both sides, which,
on each side, a party subjects himself to the eventual burthen of,—or though it were at
those on one side only:—on the other side of the account, at the annual amount of
what an average individual of the labouring class (beyond all comparison the most
numerous class)—or even though it were an average individual of the aggregate of all
classes, the very highest not excluded—has for the whole of his possible expenditure.
This comparison made, then it is that any man may see, whether, by forbearance to go
on with an existing suit, at any stage, on either side, whether on the plaintiff’s side, by
forbearing to commence a suit,—any preponderant probability may be afforded, of
what is called a want of merits.

Of two all-pervading masses of instances, in which, throughout the whole system of
technical judicature, conclusions having been built, are continually acted upon by
men, to whom, one and all, the premises on which those conclusions are built, and
thence the conclusions themselves, are, or without their own wilful default, would be

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