Front Page Titles (by Subject) CHAPTER V.: PROBATIVE FORCE—WHENCE MEASURED—HOW INCREASED—HOW DIMINISHED. - The Works of Jeremy Bentham, vol. 6
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CHAPTER V.: PROBATIVE FORCE—WHENCE MEASURED—HOW INCREASED—HOW DIMINISHED. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 6 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 6.
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PROBATIVE FORCE—WHENCE MEASURED—HOW INCREASED—HOW DIMINISHED.
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.
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.
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.
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, 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.
[* ]Selected.] Hence one advantage derivable from the employment of that species of evidence which has been designated pre-appointed evidence.
[* ]Person or persons.] Between this supposed percipient, and the deposing or narrating witness, any number of supposed percipient and narrating witnesses may, it is obvious, have been interposed. Concerning the diminution thus effected in the degree of probative force, see Chapter XIII. Of Makeshift Evidence.
[† ]Untrustworthiness.] These will, in every instance, be found to consist in some infirmity, relative and comparative, in the state or condition of the mental or psychological faculties, and qualities, intellectual or moral, of the supposed percipient and narrating witness or witnesses.—It is for the purpose of bringing to view the aggregate of these several securities, that the word shape is here employed. Any infirmity—any inferiority—which, on any occasion, may be perceptible in the shape of the evidence will, accordingly have for its cause, if not the inapplicability, at least the non-application, of some one or more of the articles, of which the list of those securities will, as above, be seen to be composed.
[* ]Concerning circumstantial evidence, see the chapter so entitled, viz. ch. 12.
[† ]Closeness of connexion.] Not that this expression is exclusively applicable to the case of circumstantial evidence; since in the case of direct personal, i. e. testimonial evidence, it may be said (it should seem,) without impropriety, that the measure of its probative force is the closeness of the connexion between the existence of the matter of fact affirmed by the individual in question, in the character of the principal matter of fact, and the fact of its having been by him affirmed in the character of an evidentiary fact with relation to that principal fact.