Front Page Titles (by Subject) CHAPTER II.: CONSIDERATIONS PROPER TO BE BORNE IN MIND IN JUDGING OF THE WEIGHT OF EVIDENCE. - The Works of Jeremy Bentham, vol. 6
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Also in the Library:
CHAPTER II.: CONSIDERATIONS PROPER TO BE BORNE IN MIND IN JUDGING OF THE WEIGHT OF EVIDENCE. - 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.
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.
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.
CONSIDERATIONS PROPER TO BE BORNE IN MIND IN JUDGING OF THE WEIGHT OF EVIDENCE.
1st Cause of Suspicion.—Improbability of the fact deposed to.
The improbability of a fact in itself, may be considered as a sort of counter testimony—a sort of circumstantial evidence, operating in contradiction to any direct evidence by which the fact in question would otherwise be considered as proved.
The improbability of a fact may rise to such a degree as to render it absolutely incredible—incapable of being proved to the satisfaction of him who thinks of it, if not by any evidence, at least by any such evidence as is actually adduced in proof of it.
If the inference drawn from the improbability of the fact, viz. that it is not true, be just—i. e. if notwithstanding the testimony by which the existence of it is asserted, it really did not exist,—the fault must lie either in the inferences deduced from the testimony, or in the testimony itself. If the testimony itself be to such a degree positive as to assert the existence of the matter of fact in question in direct terms, then the fault cannot be in the inference deduced from the testimony, but must be in the testimony itself. The testimony must either be incomplete or false, or both: though if, as above, it be to a certain degree positive, there may be no room for charging it with being incomplete; and if the fact so asserted be false, the testimony by which the existence of it is asserted, must necessarily be, in some circumstance or other, false. But as an assertion made by a man may be false without his being conscious of its being so, such falsity is not of itself proof of perjury.
When a fact is considered as being to such a degree improbable as not to be capable of being proved by any quantity even of the best evidence, it is commonly termed impossible.
Improbability or impossibility, is either physical, that is natural, or moral. A fact may be said to be physically improbable, when it is considered as being inconsistent with the established and known order of things—with any of those rules and propositions which have been deduced from the general observation of mankind, and are termed laws of nature: such as, for instance, that which asserts as a known matter of fact, the weight or gravity of all the bodies that we see in, upon, or near to this earth; that property, whereby, if a man jump up from the surface of the earth, he feels himself drawn down again.
A fact is said to be morally improbable, when it is considered as being inconsistent with the known course of human conduct. This species of improbability is confined to such facts as have their place in the human mind: such as the entertaining of such and such perceptions, conceptions, intentions, wishes; the being animated by such and such motives, under the existing circumstances of the case.
The degree of distrust produced in the mind of a judge by the improbability of the alleged fact, when that improbability is of the physical kind, as above, will depend upon the confidence he has in his own knowledge respecting the powers and order of nature so far as the particular fact in question is concerned. If he have any doubt, he will do well to have recourse to scientific evidence—to call in the opinion of such persons as, by their professional situation or reputation, are pointed out to him as being particularly well informed in relation to matters of that sort.
Thus suppose, upon the testimony of two witnesses, a demand made upon a man for money in satisfaction for damage done to a garden by the fall of the first inhabited air-balloon that ever rose: and from reflection on the weight of bodies, suppose the judge to have been inclined to disbelieve the testimony, on the ground of the apparent improbability of the fact. In such case, he would have done well to call in the opinion of some lecturer or lecturers on natural philosophy; and accordingly, supposing him so to have done, he would have learned from them that there was really no inconsistency between what he had always observed and heard concerning the heaviness of bodies in general, and what the witnesses had been deposing concerning the extraordinary lightness of the particular body so raised.
Concerning moral improbability, as above described, every man acting in the situation of a judge will naturally consider himself as competent to pronounce. A man on these occasions looks into his own mind, and asks, as it were of himself, whether it be probable or possible, that in the circumstances in which the person in question is stated by the evidence as entertaining such and such perceptions, conceptions, intentions, wishes, and the like, it could have happened in such circumstances to himself to have entertained any such perceptions, conceptions, intentions, wishes, and the like.
Moral improbability of the fact is a sort of evidence upon which conviction or acquittal turns, in most cases of delinquency, especially when against the defendant there is no other than circumstantial evidence. It is seldom that a man can be deemed guilty, unless his intentions be taken into the account; and when he avers his intentions to have been innocent, it is not possible to prove their having been guilty, otherwise than by the moral improbability of their having been otherwise. When Captain Donellan was convicted of murder by the poisoning of Sir Theodosius Boughton, one of the principal circumstances against him, was his anxiety to have the cup immediately rinsed out. On any other supposition than that of the cup’s containing a poison by which the fatal symptoms were produced, this anxiety and the expression given to it were looked upon as acts without a motive. Should I in that situation have entertained any such anxiety if I had not been guilty? If in that situation I had been guilty, could I have avoided entertaining the like anxiety, although I should hardly have been so incautious thus to betray it? Such were the questions which, in the situation of the jury by whom he was convicted, every man who joined in the conviction, or approved of it, could not but have put to himself.
2d Cause of Suspicion.—Interest.—The testimony of the witness liable to be drawn aside from the line of truth, by the influence of some seducing motive.
There are as many species of interests as there are species of motives:—there are as many species of motives as there are distinguishable sorts of pains and pleasures.
Whatever, on each given occasion, be the complexion of a man’s conduct,—lawful or unlawful, commendable or discommendable, beneficial to society or prejudicial,—it is always the result of the action of some motive or motives, or of the difference in point of force between two lots of contending motives;—an action without a motive is an effect without a cause.
Among motives, there are some, the action of which tends in the main, all the world over, or at least in every civilized community, though in different communities with exceptions more or less considerable, to keep men’s conduct within the pale of probity, of which a main branch is the line of truth.
These are—1. The motives created by the rewards and punishments administered by the law of the state; 2. The motives depending on good and evil reputation, from whence flow respectively the spontaneous good and ill offices of mankind; 3. The motives created by the affection of benevolence, whether its object be more or less extensive—a man’s family, his friends at large, his province, his country, or mankind; 4. The motives created by religion. In consideration of their most usual tendency (though there is not one of them which by means of some error or other has not been productive of actions pernicious to mankind, and in particular has not drawn aside man’s testimony from the line of truth,)—all these together may be comprised under the common appellation of tutelary or guardian motives.
All motives whatever, not excepting even the motives termed, in consideration of their regular and ordinary tendency, guardian motives, are liable to act in the character of seducing motives on all occasions, and in particular on those occasions where a man is called upon for his testimony by the voice of justice, and thereupon to draw aside the tenor of his testimony from the line of truth.
There are some motives or interests which are most apt to be productive of this sinister effect, and of the sinister tendency of which, on those occasions, it behoves the judge to be more particularly upon his guard; in so much, as the more strongly the situation of a witness exposes him to be acted upon by any one or more of these motives respectively, in such sort that, by swerving from the line of truth, he might procure to himself the gratification of the appetite or passion corresponding to such sinister seducing interest or motive, the stronger the suspicion and distrust with which his testimony will naturally and not improperly be regarded. Not that by any means it follows, that because a man is exposed to temptation, therefore, spite of the utmost efforts of the guardian motives, he will on every occasion yield to it:—but thus much, and thus much only, is the proper practical inference, that the stronger the action of the sinister interests on the part of the witness, the more vigilant ought to be the scrutiny on the part of the judge.
These interests or motives are as follows:—
1. Pecuniary interest:—to which belong the motives created by the desire for money; that is, including all things that are to be bought for money.
2. Enmity:—to this passion belongs the motive which, when excited by injury, real or imagined, is termed revenge. So, even although there be not so much as an imagination of injury, an uneasiness regarded as having the person or conduct of a particular individual for its cause, will be productive of that same passion, which when in the character of a motive it acts upon the will and influences human conduct, is called revenge.
3. Love of Power:—desire of acquiring or preserving power of any kind;—fear of losing it.
4. Desire of gaining or preserving the protection or patronage, the good will and good offices of a particular individual, in the character of a master, patron, or useful friend.
5. Love:—i. e. personal attachment in the case where connected with sexual attraction.
6. Personal attachment; or friendship towards an individual:—the principle by which an individual is led to regard the interests of a friend in the same manner as his own, and to be actuated by them in the same manner and direction as if they were his own, whatsoever difference there may be in the degree of force.
7. Family attachment:—the principle by which a man is led to adopt as his own, the interests of his family,—a circle which may be more or less wide in its extent, and in which exceptions in any number may be included.
8. Party attachment.
9. Self-preservation:—a motive, in the object of which, if taken in its largest sense, are included all pains and dangers, and thence even losses and disappointments of all sorts;—and which, when the danger apprehended is the loss of life (a loss in which the loss of whatever pleasures a man could hope for is involved,) is termed danger of the loss of life. In so far as the pains in question may have legal punishment for their source, the fear of punishments of all sorts is included within the compass of this motive.
10. Love of ease; or aversion to labour; i. e. to the pains which result as the natural accompaniments of labour, when considered apart from the pleasures and sources of pleasure which in the several cases it looks to for its reward.