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+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
+
+This E-Book (PDF format) is published by Liberty Fund, Inc., a private,
+non-profit, educational foundation established in 1960 to encourage study of the ideal
+of a society of free and responsible individuals. 2010 was the 50th anniversary year of
+the founding of Liberty Fund.
+
+It is part of the Online Library of Liberty web site http://oll.libertyfund.org, which
+was established in 2004 in order to further the educational goals of Liberty Fund, Inc.
+To find out more about the author or title, to use the site's powerful search engine, to
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+This title is also part of the Portable Library of Liberty DVD which contains over
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+request.
+
+The cuneiform inscription that appears in the logo and serves as a design element in
+all Liberty Fund books and web sites is the earliest-known written appearance of the
+word “freedom” (amagi), or “liberty.” It is taken from a clay document written about
+2300 B.C. in the Sumerian city-state of Lagash, in present day Iraq.
+
+To find out more about Liberty Fund, Inc., or the Online Library of Liberty Project,
+please contact the Director at oll@libertyfund.org.
+
+LIBERTY FUND, INC.
+8335 Allison Pointe Trail, Suite 300
+Indianapolis, Indiana 46250-1684
+
+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.
+
+PLL v6.0 (generated September, 2011)
+
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+http://oll.libertyfund.org/title/1923
+
+Online Library of Liberty: The Works of Jeremy Bentham, vol. 6
+
+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.
+
+PLL v6.0 (generated September, 2011)
+
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+http://oll.libertyfund.org/title/1923
+
+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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+Online Library of Liberty: The Works of Jeremy Bentham, vol. 6
+
+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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+
+Online Library of Liberty: The Works of Jeremy Bentham, vol. 6
+
+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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+Online Library of Liberty: The Works of Jeremy Bentham, vol. 6
+
+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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+Online Library of Liberty: The Works of Jeremy Bentham, vol. 6
+
+[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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+
+Online Library of Liberty: The Works of Jeremy Bentham, vol. 6
+
+[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.
+
+PLL v6.0 (generated September, 2011)
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+Online Library of Liberty: The Works of Jeremy Bentham, vol. 6
+
+[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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+Online Library of Liberty: The Works of Jeremy Bentham, vol. 6
+
+§ 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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+Online Library of Liberty: The Works of Jeremy Bentham, vol. 6
+
+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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+Online Library of Liberty: The Works of Jeremy Bentham, vol. 6
+
+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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+Online Library of Liberty: The Works of Jeremy Bentham, vol. 6
+
+[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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+[Back to Table of Contents]
+
+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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+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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