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BOOK I.: —THEORETIC GROUNDS. - 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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ON EVIDENCE IN GENERAL.
Evidence is a word of relation: it is of the number of those which in their signification involve, each of them, a necessary reference to the import expressed by some other; which other must be brought to view at the same time with it, or the import cannot be understood.
By the term evidence, considered according to the most extended application that is ever given to it, may be, and seems in general to be, understood, any matter of fact, the effect, tendency, or design of which, when presented to the mind, is to produce a persuasion concerning the existence of some other matter of fact—a persuasion either affirmative or disaffirmative of its existence.*
Of the two facts thus connected with each other, the latter may, for the purpose of expressing the place it bears in its relation to the other, be distinguished by the appellation of the principal fact, or matter of fact: the other, by that of the evidentiary fact, or matter of fact.†
Taking the word in this sense, questions of evidence are continually presenting themselves to every human being, every day, and almost every waking hour, of his life.
Domestic management turns upon evidence. Whether the leg of mutton now on the spit be roasted enough, is a question of evidence; a question of which the cook is judge. The meat is done enough; the meat is not done enough: these opposite facts, the one positive, the other negative, are the principal facts—the facts sought: evidentiary facts, the present state of the fire, the time that has elapsed since the putting down of the meat, the state of the fire at different points during that length of time, the appearance of the meat, together with other points perhaps out of number, the development of which might occupy pages upon pages, but which the cook decides upon in the cook’s way, as if by instinct; deciding upon evidence, as Monsieur Jourdan talked prose, without having ever heard of any such word, perhaps, in the whole course of her life.
The impression, or something like an impression, I see in the grass—the marks of twisting, bending, breakage, I think I see in the leaves and branches of the shrubs—the smell that seems to present itself to my nostrils—do they afford sufficient evidence that the deer, that the enemy, I am in chase of, have passed this way? Not polished only, but even the most savage men—not human kind only, but even the brute creation, have their rules—I will not say, as Montesquieu would have said, their laws—of Evidence.‡
If all practice, much more must those comparatively narrow branches of it, which are comprehended under any such names as those of art and science, be grounded upon evidence.
Questions in natural philosophy, questions in natural history, questions in technology in all its branches, questions in medicine, are all questions of evidence. When we use the words observation, experience, and experiment, what we mean is, facts observed, or supposed to be observed, by ourselves or others, either as they arise spontaneously, or after the bodies in question have been put, for the purpose, into a certain situation.
Questions even in mathematics are questions of evidence. The facts, the evidentiary facts, are feigned; but the question concerning the inference to be drawn in each instance, from the feigned existence of the evidentiary facts, to the existence of the facts sought—the question whether, in the way of analogy, the supposed evidentiary facts afford a sufficient ground for being persuaded of the corresponding existence of the principal facts—is not the less a question of evidence. The matter of fact, which, presented to the mind in one point of view, is called by this one name, is it the same matter of fact which, when presented in another point of view, is called by this other name? Do two and two make four? and for example, the two apples on the right-hand side of the table, added to the two apples on the left-hand side of the same table, are they the same apples, and the same number of apples, that constitute all the apples now lying before me upon the table? In this question of identity—in this question of nomenclature disguised under scientific forms, we see a question of evidence.*
The first question in natural religion is no more than a question of evidence. From the several facts that have come under my senses relative to the several beings that have come under my senses, have I or have I not sufficient ground to be persuaded of the existence of a being distinct from all those beings—a being whose agency is the cause of the existence of all these, but whose separate existence has never at any time, by any perceptible impressions, presented itself, as that of other beings has done, to the cognizance of the senses?
Evidence is, in every case, a means to an end—a particular branch or article of knowledge, considered in respect of its subserviency towards a course of action in which a man is called upon to engage, in the pursuit of some particular object or end in view.
In the case of a branch of science—physical science—cultivated by a private individual, that object may be the producing some physical effect, whether of a customary or of a new complexion; or perhaps nothing more than the general advancement of the science—the making an addition to the mass of knowledge, applicable in common to the production of useful effects, customarily produced, or newly discovered, as it may happen.
On this ground, a great part of the business of science in general may be resolved into a research after evidence. The usefulness of it, with reference to the interests of mankind in general, will be in proportion to that of the department of science to which it belongs, and to the place it occupies in that department.
When the conduct to which the evidence in question is subservient—the conduct for the guidance of which the facts in question, and the knowledge obtainable in relation to them, are searched after—when the conduct thus at stake is the conduct of government as such—of men occupied, on the occasion in question, in the exercise of the powers of government,—the importance of the evidence, and of the conduct pursued in relation to it, take a proportionate rise.
In the map of science, the department of judicial evidence remains to this hour a perfect blank. Power has hitherto kept it in a state of wilderness: reason has never visited it.
In the few broken hints which, in the form of principles, may be picked up here and there in the books of practice, little more relevant and useful information is to be found, than would be obtainable by natural philosophy from the logicians of the schools.
The present work is the result of an attempt to fill up this blank, and to fill it up with some approach towards completeness. Not the minutest corner has been left unexplored: the dark spots have not been turned aside from, but looked out for.
Among the subjects here treated of are several concerning which not any the slightest hint is to be found in any of the books of practice.
Should this endeavour be found successful, it may be regarded as a circumstance not disadvantageous to the science, that the survey of the subject happened to be postponed to so mature a period in the history of the human understanding. So much the less rubbish to clear away: so much the less prejudice to contend with.
Should it happen to this work to have readers, by far the greater part of the number will be composed of those for whose use it was not intended—those to whom, were it not for the predilection produced by professional interest in favour of the best customer, Injustice, and her handmaid Falsehood,—justice and injustice, truth and falsehood, would be objects of indifference.
The class of men for whose use it is really designed, is a class composed as yet of those, among whom a personal or other private interest, hostile to that of the public, will prevent it, if not from finding readers, from finding other than unwilling and hostile readers—readers whose object in reading the work will be, to consider by what means, with the fairest prospect of success, the work and the workman may be endeavoured to be crushed.
The species of reader for whose use it was really designed, and whose thanks will not be wanting to the author’s ashes, is the legislator; the species of legislator who as yet remains to be formed—the legislator who neither is under the dominion of an interest hostile to that of the public, nor is in league with those who are.
OF EVIDENCE CONSIDERED WITH REFERENCE TO A LEGAL PURPOSE; AND OF THE DUTIES OF THE LEGISLATOR IN RELATION TO EVIDENCE.
So much for evidence in general; evidence taken in the largest sense of the word, condered under every modification,—of the subject to which it may come to be applied—of the nature of the fact sought,—the fact, to the proof of which it may come to be applied. Hereafter, the only sense in which the word is used, is that in which the application of it is confined to juridical, or say legal, evidence.
Under this limitation, then, evidence is a general name given to any fact, in contemplation of its being presented to the cognizance of a judge, in the view of its producing in his mind a persuasion concerning the existence of some other fact—of some fact by which, supposing the existence of it established, a decision to a certain effect would be called for at his hands.
To give execution and effect throughout to the main, or substantive, branch of the body of the law, is, or ought to be, the main positive end or object of the other branch, viz. the adjective, or that which regulates the system of judicial procedure.*
Of the system of procedure, one principal part is that which regards the presentation, or say exhibition, of the evidence—the delivery, and receipt or extraction, of the evidence.
Preparatory and necessarily antecedent to every operation, or series of operations, by which execution and effect are given to an article of substantive law, is judgment, decree, decision.
Whatever be the decision by which a cause or suit at law is, as to all except execution, terminated, this decision has for its subject-matter two constantly concomitant points or questions: the point or question of law, and the point or question of fact.
So far as regards the question of fact, the decision, in so far as it is just, depends upon and is governed by the evidence.
Judicature, like all the other operations of government, consists in rendering a service to some person or persons: to the plaintiff, if the decision be in his favour; to the defendant, if in his.
The service rendered by the judge to the plaintiff, by a decision in favour of the plaintiff’s side of the cause, consists, according to the nature of the demand, either in putting him in possession of some right, or assemblage of rights; or in administering to him satisfaction in respect of some wrong or wrongs, whether in the shape of compensation to himself, or of punishment to the wrongdoer.
The service rendered by the judge to the defendant, by a decision in favour of the defendant’s side of the cause, consists in exonerating him of the obligation sought to be imposed upon him by the plaintiff’s demand.
The state of the facts, as well as the state of the law, being such as to confer on the plaintiff a title to such or such a right, or to satisfaction on the score of such or such a wrong,—if evidence, and that of a sufficient degree of probative force to satisfy the judge, of the existence of the necessary matter of fact, be wanting,—the law, in that instance, fails of receiving its due execution and effect; and, according to the nature of the case, injustice in the shape of non-collation† of rights where due, non-administration of compensation where due, or non-administration of punishment where due, is the consequence.
If either the state of the facts, or the state of the law, fails of being such as to confer on the plaintiff a title to the service demanded by him as above, injustice to the prejudice of the defendant’s side would be the consequence, were the judge to impose upon him the burthensome obligation to which it is the object of the plaintiff to subject him. And so far as his title to an exemption from such obligation is constituted by a matter of fact, so far it depends upon evidence: and if, such matter of fact having on the occasion in question been in existence, the evidence necessary to satisfy the judge of its existence be wanting, so far injustice, as above, is the consequence of such want of evidence.
Hence arises one natural and proper object of the legislator’s care; viz. to see that the necessary evidence be forthcoming.‡
But if the effect of such evidence as comes to be presented to the judge be to produce in his mind a material and decisive deception, viz. the persuasion of the existence of some matter of fact which was not in existence—the consequence of such persuasion being an unjust decision to the prejudice either of the plaintiff’s side, or of the defendant’s side, as above—the effect of such fallacious evidence may be the same as that which might have been produced, as above, by the failure, the want, the deficiency of evidence.
Hence arises another natural and proper object of the legislator’s care; viz. guarding the judge against the deception liable to be produced by fallacious evidence.
Subordinate to this object, are the following two:—1. To give instructions to the judge, which may serve to guide him in judging of the probative force of evidence; 2. To take securities that the evidence itself shall possess as great a degree of probative force, in other words, shall be as trustworthy as possible.
The properties which constitute trustworthiness in a mass of evidence, are two: correctness and completeness.
The property that presents itself in the first place as desirable on the part of an aggregate mass of evidence is—that, as far as it goes, it be correct; that the statement given in relation to the matter of fact in question, be as conformable as possible, at least in respect of all material circumstances, to the facts themselves. In proportion as it fails of possessing the perfection of this property, in the same proportion will the mass of evidence fail of attaining the maximum of trustworthiness—in the same proportion will be the danger of deception and consequent misdecision on the part of the judge.
First desirable property in an aggregate mass of testimony, correctness.
Another property, the desirableness and essentiality of which is no less obvious on the part of an aggregate mass of testimony, is that of being complete: that the statements of which it consists comprehend, as far as possible, and without omission, the aggregate mass of all such facts, material to the justice of the decision about to be pronounced, as on the occasion in question really had place.
Let the aggregate mass of evidence be deficient in respect of completeness, its correctness, instead of a cause of trustworthiness, may be a cause of the opposite quality: instead of a security against deception and consequent misdecision, it may be a necessarily efficient cause of these undesirable results.*
Applied to evidence, the term incompleteness designates different objects, according as it is applied to a single lot or article of evidence, such as the testimony of a single individual, or to a body of evidence considered in the aggregate. In the latter case, the body may be rendered incomplete, either by incompleteness on the part of any one or more of the articles of which it is composed, or by the entire absence of any one or more of the articles which might and ought to have entered into the composition of it.
Neither incompleteness nor incorrectness have any tendency to produce deception any farther than as partiality is the accompaniment or the result: but unless in the rare and just imaginable case, where the incompleteness and incorrectness operate on both sides, and in such manner as to produce on each side a diminution of probative force exactly equal—partiality, intended or unintended, to the prejudice of one or other side, will always be the result.
To the qualities of correctness and completeness, impartiality could not with propriety have been either substituted or added: not substituted, because the intimation conveyed by it would be an intimation rather of the state of the deponent’s mind than of the quality of his evidence; not added, because the intimation conveyed by it would be that of an imperfection distinct from both: whereas, supposing the evidence neither incorrect nor incomplete, neither can the evidence itself be other in its tendency than impartial, nor is the state of the deponent’s mind material to the purpose.
Again: the operations necessary to the presentation of the evidence to the senses and cognizance of the judge, are in every instance unavoidably attended with a certain degree of inconvenience, in one or more of three shapes; viz. delay, vexation, and expense. If in any instance it should happen, as in many instances it may and does happen, that the relative magnitude and weight of this inconvenience is such as to render it preponderant over the mischief of whatever chance there may be that injustice, as above, may be produced for want of the evidence; on that supposition, it is better that the evidence in question be not presented, than that it should be presented.
And here we see a third natural and proper object of the legislator’s care, viz. guarding against the production of inconvenience in the shape of delay, vexation, or expense;—to wit, in so far as such inconvenience is either superfluous, or, in comparison with the mischief attached to the injustice resulting from the exclusion of the evidence, preponderant.
Vexation and expense being incident to the presentation of evidence, legal powers adapted to that purpose will be requisite: in every case, powers of the compulsive kind, operating by means of punishment; and, in some cases, powers of the alluring or attractive kind, operating by means of the matter of reward.
To arm the judge with powers of this description, applicable to the nature of this case, will thus constitute a specific object of the legislator’s care, referable to the general head above brought to view; viz. securing the forthcomingness of evidence. But this being among the operations that fall under the head of procedure, belongs not to the present work.
A condition necessarily previous to any determinate operation directed to the causing of this or that article or source of evidence to be presented to the cognizance of the judge, is the knowledge, or at least the conjectural conception, of its existence. Of evidence, the existence of which is not known at the outset of the suit, the existence may sometimes be discovered in the course of it. Either immediately, or with the intervention of any number of links, one article of evidence may lead to the discovery and to the successful investigation of another.
To arm the judge, and, through the medium of the judge, the parties on either side, with the powers necessary to the investigation of evidence, constitutes accordingly another natural and proper specific object of the legislator’s care, subordinate to the same general object—securing the forthcomingness of evidence. But this likewise must be referred to the subject of procedure, not coming within the design of the present work.
In contemplation, and for the eventual support, of a right or rights already created and conferred, or considered as about to be created and conferred, the providence of individuals, and in some instances of government itself, is in use to create or appoint a correspondent and appropriate species of evidence, which, in consideration of such its destination, may be distinguished by the general denomination of preappointed evidence.
To favour the institution of this useful species of evidence, constitutes another specific object of the legislator’s care, subordinate to the same general head—securing the forthcomingness of evidence.
Under each of these several heads (those only excepted which belong more properly to the subject of Procedure) a view will be presented—in the first place, of what seems proper to be done in the way of legislation; in the next place, of what has been done in the way of legislation; including the work of which so little has been done—the work of the genuine legislator, and the work of which so much has been done—the work of the pseudo-legislator, the judge,—the judge making, as he goes, under pretence of declaring, that part of the rule of action which has the form of law.
Speculation, to whatever extent pursued, is of no value, except in so far as it has a practical purpose. In the present work, the extent to which the speculative discussions contained in it are pursued, is considerable: but the view with which they were written is altogether practical. The object was to find an answer to this question,—What ought to be the part taken by the legislator in relation to evidence?
The subject of Evidence being but a branch of the subject of Procedure, both have their foundation in one common set of principles. These principles are—the ends, the direct and collateral ends, of justice, the proper and legitimate ends of procedure: on the one hand, rectitude of decision; which may be said to have place when rights are conferred, and obligations imposed, by the judge, on those persons, and those only, on whom the legislator intended that they should be conferred and imposed: on the other hand, the avoidance of unnecessary delay, vexation, and expense. The first may be called the direct end; the three latter, the collateral ends of justice.
These ends are the ends, and the only ends, aimed at in the arrangements proposed in the course of this work. In the form of reasons for the several arrangements, their subserviency to those ends is all along brought to view. Subserviency to these ends is in like manner the standard to which the merit or demerit of the corresponding arrangements of actually established law are all along referred.
But, when tried by this standard, the arrangements of the existing systems of law being found in every part enormously, and to all appearance purposely, defective, the inquiry would, it seemed, have been imperfect, and, comparatively speaking, uninstructive, if the cause of such their aberration had not at the same time been pointed out. This cause appeared to lie in the opportunity which the authors of these arrangements had of directing them, as under the impulse of sinister interest it appears they did direct them, to the prosecution of certain false ends, and in particular their own professional and personal emolument and advantage.
To the pursuit of the legitimate ends, as far as they have been pursued, the system which may be distinguished by the name of the natural system of procedure has owed its birth; to the pursuit of the spurious and sinister ends, the technical system of procedure. Of the natural system, in every family the domestic, and in most states various courses of procedure comprehended under some such name as the summary, may afford exemplifications.
For the purpose of ascertaining what arrangements under each head promised to be most conducive to the attaiment of the ends of justice, it seemed necessary to trace up to their sources or causes the several mischiefs opposite to these ends: the evils, in the avoidance of which the attainment of those ends consisted. When on this occasion a circumstance presented itself in the character of an immediate cause of any of those evils, that immediate cause was seen to originate in a higher cause—that higher in one still higher—and so on; in some instances as high as through four or five degrees or removes. These causes presently distributed themselves into two divisions: natural, the original and irremediable work of nature; factitious, the work of human agency or omission, of human artifice or imbecility. In the factitious causes might be seen the result partly of folly, partly of improbity—of that improbity on the part of the authors of those arrangements, which consists in the pursuit of the sinister ends above mentioned.
The principal divisions of the subject being thus pointed out, it may be useful to exhibit a summary view of the topics that might be expected to be handled in a work on Evidence, but of which some belong more properly to a work on Procedure at large: others are included under the foregoing head.
1. Examination of deponents,—mode of conducting the examination so as to avoid producing deception on one hand, or preponderant vexation, expense, and delay on the other. See Book II. Securities; and Book III. Extraction.
2. Of the number of witnesses to be required.—Requiring two witnesses is excluding every witness that does not come accompanied with another. The propriety of this exclusion stands upon different ground in the two cases of ordinary or casual, and pre-appointed, evidence. See Book IX. Exclusion, and Book IV. Pre-appointed.
3. Of conclusive evidence.—Making any evidence conclusive, is excluding all evidence on the other side. See Book IX. Exclusion.
4. Authentication of evidence; including as well orally delivered, as ready-written, evidence.—See the Book so entitled (Book VII.)
5. De-authentication, or detection of unauthenticity: by this is done, in regard to authenticity, what by examination and counter-evidence is done in regard to truth. See Le Clerc’s Ars Critica, and Book VII. as above.
6. Of appropriate evidence.—Under this head might come all discussions on the appositeness of evidence in relation to the terms of the instrument of demand or the instrument of defence. But the foundation of this inquiry is not in the nature of things, but merely in the technical forms of English common law. It has no place in Roman, nor even in English equity law. It belongs more properly to Procedure at large than to Evidence.
7. Of the onus probandi: on whom it lies.—Another title, the importance of which arises chiefly out of the imperfections of English common law; and in particular of that feature of it which forbids to draw the relation from the mouths of the parties; that is, from those who are likely to have been best acquainted with the facts. In general, the proof of all facts necessary to constitute the ground of a demand, lies upon the plaintiff, by whom the demand is made; and so upon the defendant, in the case of the defence. Any exceptions should turn upon proportions, as between delay, expense, and vexation, on each side, arising out of the particular nature of each species of demand or defence; that is, of the matters of fact of which the ground of each is composed. This topic, too, seems to belong rather to Procedure than to Evidence.
8. Of the means of causing evidence to be forthcoming;—i. e. of causing persons and things, in the character of sources of evidence, to be forthcoming, and to yield the evidence of which they have the capacity to become sources.—This topic belongs clearly to the subject of Procedure.
9. Of indicative evidence.—Indicative evidence is a name that may be given to any evidence, in respect of its being so, not in relation to the principal fact in question, but in relation to the existence of this or that person or thing, in the character of a source, from whence evidence, which is such with relation to the fact in question, may be derived. When evidence of the fact in question is investigated, it is through the medium of indicative evidence. This belongs to Procedure.
10. Of spontaneously-delivered evidence.—Spontaneously delivered, is a name which may be given to evidence when delivered without interrogation. See Book II. Securities, and Book III. Extraction.
11. Of evidence sine lite.—An example of this is, where, to enable a man to receive money from an officer employed in the payment of public money, evidence showing his title must be produced. Here, as elsewhere, the object is to guard against deception in the most effectual way possible, without preponderant or unnecessary vexation, expense, and delay.*
12. Of scientific evidence—a name that may be given to information delivered by persons whose capacity of furnishing it is founded on skill and experience in some particular line of art and science. Persons of this description, though in English law confounded with witnesses, and, not without advantage, treated as such, are in fact a sort of assistants to the judge, and as such treated by Roman law.
In the case of Le Brun, a domestic servant, erroneously convicted of the murder of his mistress, Madame Mazel, at Paris, by a sentence of the Lieutenant-criminel, dated 18th January 1690,† mention is made of five sorts of professional persons, to whom the denomination of experts is applied, and of whose evidence the substance is reported. Locksmiths, to explain the nature of a master-key, known to have been in his possession, and its relation to other keys belonging to the same locks. Cutlers, to say whether there was any relation between a knife found upon the person of the defendant, and another knife which appeared to have been made use of in his committing the murder, but had been found in another place. Peruke-makers, to say whether a few hairs, that had been found in the clenched hand of the deceased, might have been the defendant’s, and plucked from his head. Washerwomen, to make a comparison between the shirts and neckcloths of the defendant, and a bloody shirt and neckcloth that appeared to have belonged to the murderer, and to have been stained with blood in the course of the struggle. Rope-makers, to say whether there was any resemblance between some cords that had been found in the possession of the defendant, and a strange cord which, it was thought, might have been made use of, or provided for the purpose of the murder. All these experts are mentioned as having been nominated by the Lieutenant-criminel, the judge.
13. Of time and place—their influence on the subject of evidence.—The principles brought to view in an already published work,‡ will be applied to this ground, wherever necessary, in the present publication.
14. English technical writers reviewed, with a view to the method observed, and the rules laid down by them on the subject of evidence.—Comments of this description are incidentally introduced, wherever they appear to be called for by the occasion.
OF FACTS—THE SUBJECT-MATTER OF EVIDENCE.
The term evidence, as has already been remarked, is a relative term. Like other relative terms, it has no complete signification of itself. To complete the signification of it, to enable it to present to the mind a fixed and complete idea, the object to which it bears a necessary reference must be brought upon the stage. I have to produce evidence. Evidence of what? Evidence of a certain fact or facts. Facts, then, matters of fact, are the subject-matter, the necessary subject-matter of evidence: facts in general, of evidence in general. Before we come to speak of evidence in detail, it will be necessary to say something of facts in general, considered as the subject-matter of evidence.
Of facts? Yes: but in what point of view considered? Not in every point of view, but in the particular point of view in which the contemplation of them is pertinent to the design and object of this treatise: not in a physical, not in a medical, not in a mathematical point of view; not in a barren, and purely speculative, logical point of view; not in any point of view, but a legal.
The facts then, or matters of fact, the species of facts, the individual facts, here under consideration, are those facts, and those only, concerning the existence or non-existence of which, at a certain point of time and place, a persuasion may come to be formed by a judge, for the purpose of grounding a decision thereupon.
Thus, then, the circle, within which the class of facts in question is comprised, presents itself as a comparatively narrow one.
In the next view that requires to be given of it, the extent of it will appear boundless. Nor indeed does it admit of any other limits than those which are set to it by the nature of the end or purpose, with a view to which the world of facts is brought thus upon the stage.
Facts, then, considered as the subject-matters of legal decision, and for that purpose of evidence, may be distinguished in the first place into principal and evidentiary.
What is meant by the words principal fact, and evidentiary fact, has been seen in a former chapter.* The question now is, what facts are to be considered principal facts, and evidentiary facts, with reference to a legal purpose.
By principal facts, I mean those facts, which, on the occasion of each individual suit, are the facts sought, for the purpose of their constituting the immediate basis or ground of the decision: insomuch that, when a mass of facts of this description, having been sought, is deemed to have been found, the decision follows of course, whether any other facts be considered as found or not.
By evidentiary facts, I mean such facts as are not competent to form the ground of a decision of themselves, nor otherwise than in as far as they serve to produce in the breast of the judge a persuasion concerning the existence of such and such other facts, of the description just given, viz. principal facts.
Here then it is that the circle expands itself, and seems to break all bounds. Under the term principal facts, when the mass comes to be analyzed and divided, facts of a particular description, and that a limited one, will be seen to be comprised. But under the description of evidentiary facts, all facts whatsoever—at least all facts that are capable of coming under human cognizance—will be seen to be included. For there is no sort of fact imaginable, to which it may not happen to serve as evidence with relation to some principal fact. It is only by the consideration of the purpose for which the mention of them is introduced, that the view we are called upon to take of them is circumscribed.†
The mass of principal facts, so termed with relation to judicial investigation and evidence, comes now to be dissected and spread out. The task would have been a long and laborious one, had it not already been performed for other purposes.
In a work which is already before the public,‡ the mass of facts coming directly under the cognizance of law has been thus divided:—
In the penal branch, the facts that become the subject-matter of regulation to the legislator, and thence of decision and inquiry to the judge, are—
To every distinguishable species of offence, to every modification of delinquency, belongs its separate train of principal facts, as characterized by the above distinctions.
In the non-penal branch of substantive law and procedure—
To trace the connexion between the several principal facts (whether individual facts be meant, or species of facts,) and the several evidentiary facts respectively related to them in that character, would be, practically speaking, if not strictly and literally, an endless task: at any rate, it will not be attempted here. Volumes, equal in bulk and number to those of an encyclopedia, might be written on this one subject. That the connexion between such and such classes of principal facts, and their correspondent evidentiary facts, is a subject on which it is impossible that any light should be thrown by rules or observations, is more than I would take upon me to assert. But in this case the field of inquiry is so vast, that it appears questionable whether any light which the subject could be capable of receiving from investigation or discussion, would be capable of compensating for the obscurity that would be thrown upon it by the mere quantity of the words, the accumulation of which would be necessary for the purpose. The task would at any rate be a separate one—a task perfectly dstinguishable from that of the present treatise.
Hitherto the operation of judging of the degree of connexion—of the closeness of the connexion between a principal fact and an alleged evidentiary fact, has been an operation of the instinctive class: an operation which has never been attempted to be subjected to rule, or at least to any other rules than what have been completely arbitrary and irrational. To take the business out of the hands of instinct, to subject it to rules, is a task which, if it lies within the reach of human faculties, must at any rate be reserved, I think, for the improved powers of some maturer age.
Facts at large, whether considered as principal or as evidentiary, may be divided into classes, according to several different modes of division.
If, on the occasion of judicial procedure in general, and the evidence elicited for the purpose of it, no practical benefit were derivable from the considering facts in this point of view, and under these distinctions, the mention of them would not have found its place in this work. But the conception entertained respecting the nature of the facts, in relation to which evidence will come to be elicited, and the nature of the evidence so applied, and of the application made of it, would, without close attention to these distinctions, be inadequate, and in practice delusive.
Applying, as they will be seen to do, to every part of the field of thought and action, including that of art and science, the instruction, if any, which may be found derivable from them, will not be the less useful in practice.
Applying, as they will be seen to do, to judicial procedure, sometimes directly, sometimes through the medium of the correspondent substantive branch of law,—the utility of the mention here made of them will not be diminished by any application which may be capable of being made of it to any other portion of the field of art and science.
1. Distinction the first.—Facts physical, facts psychological.
The source of the division here is, the sort of beings in which the fact is considered as having its seat.
A physical fact is a fact considered to have its seat in some inanimate being: or, if in an animate being, by virtue, not of the qualities by which it is constituted animate, but of those which it has in common with the class of inanimate beings.
A psychological fact is a fact considered to have its seat it some animate being; and that by virtue of the qualities by which it is constituted animate.
Thus motion, considered simply as such, when predicated of any being, is a physical fact: true, it is an attribute of animate beings, but not in virtue of those qualities which constitute them animate, since it is equally an attribute of inanimate ones.
But if, to the word motion, we add the word voluntary, we then introduce, over and above the physical fact of the motion, another fact; viz. an exertion of the will, considered as preceding and causing the motion. This last fact is a psychological fact; since it is not capable of having its seat in any other than animate beings: nor in them, by virtue of any other qualities than those by which they are constituted animate.
Of these two simple facts—one a physical, the other a psychological fact—is composed the complex fact, voluntary motion; a fact of a mixed character, partly physical, and partly psychological.
The classification and arrangement of physical facts must be left to natural philosophers. The classification and arrangement of psychological facts must, in like manner, be left to metaphysicians. It may not be improper, however, to give in this place a short indication of some of the principal classes of psychological facts:—
1. Sensations: feelings having their seat in some one or more of the five senses—sight, hearing, smell, taste, and touch.
Sensations, again, may be subdivided into those which are pleasurable, those which are painful, and those which, not being attended with any considerable degree of pleasure or pain, may be called indifferent.
2. Recollections: the recollections or remembrances of past sensations.
3. Judgments: that sort of psychological fact which has place when we are said to assent to or dissent from a proposition.
4. Desires; which, when to a certain degree strong, are termed passions.
5. Volitions, or acts of the will &c.
II. Distinction the second.—Events, and states of things. Source of the division in this case, the distinction between a state of motion and a state of rest.
By a fact, is meant the existence of a portion of matter, inanimate or animate, either in a state of motion or in a state of rest.
Take any two objects whatever; consider them at any two successive points of time: they have, during these two portions of time, been either at rest with relation to each other, or one of them has, with relation to the other, been in motion—has in the course of that length of time changed its place.
The truth is, that, as far as we are able to judge, all portions of matter, great and small together, are at all times in motion: for in this case is the orb on which we exist, and, as far as we can judge, all others which come under the cognizance of our senses. When, therefore, in speaking of any portion of matter, rest is attributed to it, the rest ascribed to it cannot be understood in any other sense than a relative one.
Whether they or one of them be in motion, or whether both of them be at rest, any two portions of matter may be considered and spoken of in relation to one another; and in this case, the most obvious and simple relation is the relation of distance.
Thus it is, then, that, considered in the most simple state in which it can be a subject or object of consideration, a fact may be either a state of things or a motion; and under one or other of these descriptions it cannot but come.
By an event, is meant some motion, considered as having actually come about in the course of nature. Thus, whatever be the occasion, the ordinary subjects of consideration and discourse come under the general denomination of states of things, or events, or both.
The fall of a tree is an event; the existence of the tree is a state of things: both are alike facts.
An act, or action, is a name given to an event in so far as it comes to be considered as having had the human will for the immediate cause of it.
A fact, then, or a matter of fact, is either the existence of two or more things, considered, in relation to one another, as being in a state of rest during successive portions of time,—or an event: in the idea of which event, is uniformly included that of motion on the part of some portion of matter, i. e. a change in its relative position to, and distance from, some other portion of matter.
An act or action—a human act, a human action—is either external or purely internal. In the instance of an external act, there must of necessity be something of complication; for to the external action of the body or some part of it, must have been added an antecedent act of the will—an internal act, but for which, it would have been on the footing of those motions which are exhibited by the unanimated, and even by the unorganized ingredients in the composition of such parts of the world as are perceptible to us.
An internal act may, on the other hand, be of the simplest kind, unattended by any motion on the part of any portion of matter exterior to the individual whose act it is.
It being understood, that it is to the mind that it is ascribed and attributed, the term motion may still be employed in the designation of it, although, in what happens in the mind upon the occasion in question, no change of place can be observed; for, in speaking of what passes in the mind, we must be content, for the most part, to employ the same language as that which we employ in speaking of what passes in and about the body, or we could not in any way make it the subject of discourse.
III. Distinction the third.—Facts positive and negative.
In this may be seen a distinction, which belongs not, as in the former case, to the nature of the facts themselves, but to that of the discourse which we are under the necessity of employing in speaking of them.
In the existence of this or that state of things, designated by a certain denomination, we have a positive, or say, an affirmative fact: in the non-existence of it, a negative fact.
But the non-existence of a negative fact is equivalent to the existence of the correspondent and opposite positive fact: and unless this sort of relation be well noted and remembered, great is the confusion that may be the consequence.
The only really existing facts are positive facts. A negative fact is the non-existence of a positive one, and nothing more: though, in many instances, according to the mode of expression commonly employed in speaking of it, the real nature of it is disguised. Thus, by health, is meant nothing more than the absence, the non-existence, of disease; by minority, the individual’s non-arrival at a certain age; by darkness, the absence of light; and so on.
For satisfying himself whether, in the case of a certain fact, it is the existence or the non-existence, the presence or the absence of it, that is in question, the course a man may take is to figure to himself the corresponding image: he will then perceive whether, by the expression in question, it is the presence or the absence of that same image that is indicated and brought to view.
OF THE SEVERAL SPECIES OR MODIFICATIONS OF EVIDENCE.
Of evidence, as of any other sort of thing, the number of possible species has no other limits than what are set by the number of points of difference observable by the human mind, in the several individual objects, for the conjunct designation of which, the generic term in question is employed.
Of the species or modifications of evidence actually distinguished in the course of this inquiry, and, for the purpose of it, designated, each of them, by its appropriate name, it may be of use to give a simultaneous intimation at this early stage.
In the present work, our concern is chiefly with judicial evidence. With regard to evidence in general, as contradistinguished from judicial evidence in particular, only one distinction shall be brought to view in this place. Such others as may hereafter become needful, will be noticed as the occasion shall arise.
The evidence by which, in any mind, persuasion is capable of being produced, is derived from one or other or both of two sources: from the operations of the perceptive or intellectual faculties of the individual himself, and from the supposed operations of the like faculties on the part of other individuals at large.
For distinction’s sake, to evidence of the first description, the term evidence ab intrà may be applied: to evidence of the other description, evidence ab extrà.
The modifications of which evidence ab intrà is susceptible, are—perception, attention, judgment, memory: imagination, a faculty little less busy than any of the others, and but too frequently operating in the character of a cause of persuasion, being excluded, as not appearing capable of being with strict propriety ranked among the modifications of evidence.
Evidence ab extrà has place, in so far as the persuasion has its source or efficient cause in the agency of some person or persons other than he whose persuasion is in question.
The sort of agency from which such persuasion is derived, is either discourse or deportment.*
So much for evidence in general. We have now to notice the several species into which we shall have occasion in the sequel to consider judicial evidence as divided.
Of evidence, as of every other sort of thing, the aggregate mass, considered as a whole, may, in idea, at one division, be divided into two or any greater number of parts, in any number of different directions, by divisions taken from so many sources of division: just as a field may be divided into two parts any number of times, each time by a line drawn from any point in any one of its boundaries to a different point in any other of its boundaries. So many different points to or from which the division is made, so many different sources of the several divisions thus made.
In the determination of the species of judicial evidence of which there will be occasion to make mention, in the course and for the purpose of the present work, the following are the sources of the principal divisions, of the first order, that have been made:—
1. Source of division,—nature of the source of the evidence. The species which are the result of the division made in this direction, and from this source, are—personal evidence, and real evidence. Personal evidence, that which is afforded by some human being—by a being belonging to the class of persons: real evidence, that which is afforded by a being belonging, not to the class of persons, but to the class of things.
2. Source of division, in the case of personal evidence,—state of the will, in respect of action or inaction, on the occasion on which it issues from that its source. Species resulting from the mode of division deduced from this source,—voluntary personal evidence, and involuntary personal evidence.
Voluntary personal evidence may be termed, all such evidence as is furnished by any person by means of language or discourse; or by signs of any other kind, designed by him to perform the function, and produce the effect, of discourse. Testimonial is the term by which evidence of this description will henceforward be designated.
To the head of involuntary personal evidence may be referred all such personal evidence as, being the result, sign, and expression of some emotion, is exhibited not only not in consequence of any act of the will directed to that end, but frequently in spite of the will and every exertion that can be made of it. To this head belong, for example, all involuntary modifications of which the deportment, and all involuntary changes of which the countenance, is susceptible.
3. Being in both cases personal and voluntary, and thus testimonial, the lot of evidence in question may either have been brought into existence on the occasion of the cause in which it is exhibited, or otherwise than on the occasion of the cause. Source of division, in this case,—relation of the evidence in question, at the time of its coming into existence, to the cause, on the occasion and for the purpose of which it is produced. Species of evidence deduced from this division,—depositional testimonial evidence, and documentary evidence.
4. The signs by which, at its coming into existence, the article of evidence in question, being depositional testimonial evidence, stands expressed,—may be either of the evanescent kind (such as sounds, and those visible signs which through necessity are sometimes employed instead of these audible ones,) or permanent, such as written or printed words or figures. Source of division,—nature of the signs employed for the delivery (viz. the original delivery) of the testimony. Species of evidence deduced from this division,—oral or orally-delivered depositional testimony, and scriptitious or scriptitiously-delivered depositional testimony.
5. In the case of testimonial evidence, the subject of the testimony is either the very fact, the existence or non-existence of which is the principal matter of fact in question; or some fact which, though distinct from it, is considered as being evidentiary of it. Source of the division in this case,—identity or diversity of the matter of fact asserted by the deponent in the instances in question, with the principal fact in question in the cause. Species which are the result of the division made in this direction and from this source,—direct evidence, and circumstantial evidence.
All evidence which comes under the description of real evidence, is circumstantial evidence.
6. Of the lot of testimonial evidence in question, the trustworthiness or legitimately probative force will depend upon the number and efficiency of the several securities for correctness and completeness that have been or can be brought to bear upon it. If, in the instance in question, the list of these securities be complete, the article of evidence may be said to be in an ordinary degree trustworthy, and may be termed ordinary evidence: if any one or more of these securities be wanting, it will be in an inferior degree trustworthy; and, however different from one another in all other respects, the several species of evidence that agree with one another in this particular, may be comprehended, any or all of them, under the appellation of make-shift evidence.
7. Whatever written evidence is adduced on the occasion and for the purpose of the cause in question, was, at the time of its being brought into existence, created either with the design of its being employed on the occasion and for the purpose of a cause or suit, or without any such design. In the last case, it may be termed casually-written evidence. To this head belong private letters and memorandums. If created with the design of being employed in a cause or suit; it either was intended to be employed on the occasion and for the purpose of some determinate and individual cause or suit, or else to be eventually employed on the occasion and for the purpose of some suit or cause of this or that particular species, but not individually determined. Source of the division in this case,—determinateness or indeterminateness of the suit or cause, for the purpose of which, the article of evidence in question, being of the written kind, was brought into existence. Species which are the result of the division made in this direction and from this source,—unpreappointed written evidence, and preappointed evidence.
Thus, the affidavit of a witness, delivered in the usual way, on the occasion of a cause of any kind in which that sort of evidence is admitted, is unpreappointed evidence; since it is created with a view to be employed on the occasion and for the purpose of this particular cause. But a deed of conveyance of an estate is preappointed evidence; for it is created for the purpose of being eventually employed in some suit or suits, should any such happen to arise, but it is not created with a view to any determinate suit; since, at the time when it is created, it is as yet uncertain whether any suit of the particular kind in question will ever arise or not.
8. The evidence being testimonial; source of the division,—identity or diversity as between the narrating or deposing witness and the alleged and supposed percipient witness. Species of evidence deduced from this source,—original evidence, and unoriginal evidence.
The evidence may be termed original, when the deposing witness—the witness by whom, for the information of the judge, a statement is made concerning the matter of fact in question,—was the very person to whose senses the matter of fact in question did, at the time and place in question, in so far as such his deposition is true, present itself.
The evidence may be termed unoriginal, in so far as the narrating witness in question speaks of some other person, and not of himself, as the person to whose perceptive faculty the supposed matter of fact in question did, at the time and place in question, present itself.
OF THE PROBATIVE FORCE OF EVIDENCE.
Ordinary degree of probative force,—what.
Of the several objects that come within the present design, the first being the prevention of deception, I proceed to take a concise view of what may be proper to be done for the production of a result so essential to justice.
Deception is a relative term: judgment, regarded as false, is so regarded with relation to some other judgment taken as a standard; which standard, by the unalterable constitution of the human mind, and of the language by which its perceptions are undertaken to be expressed, can never be other than the judgment of the individual by whom the term deception is employed.
A mass of evidence being produced on the plaintiff’s side of the cause; and on the defendant’s, no matter whether a mass of counter-evidence or none (say, to simplify the matter, none;) the judge, grounding on this evidence his decision, so far as the question of fact is concerned, decides in favour of the plaintiff’s side.
Taking note of this decision, and of the evidence on which it was grounded, the judgment or opinion delivered by me on the subject is, that, in this instance, deception, with the misdecision that has followed upon it of course, has had place.
Developed, my opinion, as expressed above, will be found to amount to this: of the body of evidence collected by the judge, the probative force is not, in my opinion, great enough to warrant the conclusion he has drawn from it; to wit, a conclusion, expressing his belief of the existence of the matter of fact undertaken on the plaintiff’s side to be proved, viz. by the delivery of this body of evidence.
In this opinion of mine, thus declared, it is assumed and implied, as a notorious matter of fact—that the quality by which testimony or other evidence delivered by an individual in relation to a matter of fact, produces, on the part of another individual, a belief of the existence of that matter of fact, is susceptible of degrees in point of quantity: that in my own mind the quantity of this quality was not sufficient to produce that effect which it produced on the mind of the judge: and this being the case, it is impossible for me not to regard the judge as having, in respect of such his opinion, been deceived.*
The quantity of probative force incident to a body of evidence, is manifestly, as above explained, susceptible of degrees: and what is equally manifest is, that, to warrant a decision conformable to the tendency of the evidence, it is not necessary that the probative force of it should in every instance be at the highest degree.
To form, for the purpose of discourse, a nominal standard of comparison; let us take a mass or lot of evidence, of such a description, as, in the judgment of the ordinary run of mankind, is found sufficient (if not contradicted or otherwise counter-evidenced,) to produce a belief of the existence of the matter of fact which it asserts: and this mass of evidence, let it be the deposition of an individual taken by lot, and unknown to the judge; the witness who thus deposes asserting, that, in the situation of percipient witness, the matter of fact presented itself, under the circumstances stated by him, to the cognizance of his senses.
Let us call the probative force possessed by an article of evidence of this description, the ordinary degree of probative force.
What is manifest to every man is, that, by evidence of this description, belief is frequently, indeed most commonly, produced; and that, in the greatest number of cases, of the belief so produced, right judgment, and not deception, is the consequence.
Unfortunately, what is equally notorious, is, that, of belief thus produced, deception is but too frequently the consequence.
In another case, in which the quantity of probative force has been, to a certain degree, greater than it was in the one first mentioned, deception has not been so frequently the consequence.
Here, then, we have an assumed nominal standard of comparison for the probative force of evidence. A lot that comes up to this standard, but does not rise above it, is what is meant by an ordinary mass or lot of evidence: a mass or lot that is considered as rising above it, may be termed a mass or lot of superordinary or superior evidence: any mass or lot that is considered as falling short of it, may, in like manner, be termed a mass or lot of infra-ordinary or inferior evidence.
The greater the quantity of probative force in the mass of evidence produced on one side, deduction made of that which is produced on the other side, the more certain in the eyes of a bystander will be its effect on the mind of the judge, and the greater in the mind of the judge will be the ease and satisfaction with which the judgment of belief pronounced on the strength of it will be accompanied.
As it is the business of the legislator so to order matters, that, on each occasion, the obtainable quantity of probative force shall be as great as possible; so it is the business of the judge to be aware of all the several circumstances by which that quantity is capable either of being augmented or diminished.
Probative force, by what circumstances increased.
A quantity of probative force being thus marked out for a standard, let us proceed to observe by what circumstances that quantity is capable of receiving increase and decrease.
1. One source of increase is derived from the quality of the supposed percipient or observing witness, thus standing forth in the character of a narrating or deposing witness. In the case of that witness, the probative force of whose testimony was assumed above as the standard quantity, the deponent was taken from the middle rank or level, in respect of the qualities, moral and intellectual, the union of which is necessary to trustworthiness. But, suppose that this or that visible situation or station in life (whether constituted by opulence, rank, power, or official function, or any combination of these circumstances) is by general experience found to render a man less apt, on the sort of occasion in question, to deliver a statement in any respect incorrect or incomplete, than a man of a different condition, inferior or even superior, it is not at present necessary to determine which,—here, viz. in the quality or condition in life of the person (the narrating or deposing witness,) we see one source from which the probative force of an article or mass of evidence may receive increase.
To this head belongs, and on this ground stands, whatever superior degree of credence has in practice been, or may with propriety be, given to official evidence in general, or to the testimony of persons invested with judicial offices in particular.*
2. Another, and a much more distinct and unquestionable source of increase, is that which is derived from the number of the witnesses. Here the mode of the increase being of the utmost possible simplicity, the degree of it is susceptible of mensuration, with that exactness which is the exclusive property of mathematical operations. To the testimony of what number of ordinary witnesses, the testimony of what lesser number of superordinary witnesses shall, in respect of probative force, be equivalent, it may not be easy, or indeed possible, to determine. But take the witnesses from either, or from any other level (it being the same for all of them,) the increase which the aggregate probative force of the whole mass will receive from the increase of the number will be always determinable with mathematical exactness.
Suppose that—instead of operating all on one and the same side, viz. in proof of the fact in question—the respective testimonies of a number of witnesses, all of the same level, are divided, some operating in proof of the fact, others in disproof of it: in this case, the mode of measuring the probative force will be nearly as simple, and altogether as certain, as in the former. In the former, it was the sum of the testimonies that was taken; in this, the difference.
3. Number of the witnesses, and a more than ordinary degree of presumable trustworthiness on the part of those witnesses respectively, are not the only sources of increase to the probative force of a mass of evidence. Another quarter from whence it is capable of receiving increase, and to an indefinite amount, is evidence of that sort which may be termed real evidence—evidence of which some object or objects belonging to the class of things is the source.†
Probative force, by what circumstances diminished.
Circumstances, the tendency of which is to diminish the probative force of testimony, may be distinguished, in the first place, into such as regard the source of the testimony—such as regard the shape in which it is delivered—and such as regard the remoteness of the testimony, as delivered, from the supposed seat of perception.
I. Circumstances regarding the source of the evidence:—
The trustworthiness of a person, considered at once in the character of a supposed percipient, and, as such, in that of an actually deposing witness—in other words, the probability of correctness and completeness in his testimony, and thence its probative force—is liable to be diminished by an imperfection in the intellectual, or by an imperfection in the moral or volitional part of his frame. Imperfections in the intellectual part may be comprised under the head of imbecility, or intellectual weakness: and these apply to him in both the above characters; viz. that of a supposed percipient, and that of a narrating or deposing witness.
Of the circumstances tending, as above, to diminish the probative force of a man’s testimony, those which regard the volitional or moral part of his frame operate by their tendency to produce, on the part of his testimony in the character of a narrating witness, a disposition to incorrectness or incompleteness.
Of these, such as tend to operate in that direction upon his will in the character of motives, are referable to the head of interest, viz. sinister interest:* such as tend to dispose him to yield to the force of interest acting in that sinister direction, are referable to the head of improbity.
When, the deposition of the witness being considered as either incorrect, or as to material circumstances, incomplete, he is considered as being, at the time of his delivering it, conscious of such its incorrectness or incompleteness—such incorrectness or incompleteness is said to be the result of, or accompanied by, mendacity; which, according as the ceremony of an oath happens to have been applied or not, is or is not converted into perjury. Where, though produced by the action of sinister interest, he is considered as not being conscious of it, the imperfection is said to have bias for its cause.
II. Circumstances regarding the shape of the evidence:—
By the shape of the evidence or testimony, I understand the form or mode in which it is delivered on the part of the witness, received or extracted on the part of the judge.
On looking over the practice of nations and judicatories (not to speak of families) in this view, a variety of operations may be observed as having been employed in the character of securities or tests, applied to the testimony so delivered on the one part, so received or extracted on the other; securities, for the purpose of increasing the probability of correctness and completeness on the part of the testimony, before or during the delivery of it; tests, as assisting the judge in forming his judgment concerning the correctness and completeness of it, during and after the delivery of it.
Of these securities or tests, the assortment employed on each occasion constitutes the shape, the form, the mode, in which on that occasion the testimony is delivered, received, extracted.
In the list of them, some little difference is liable to be made by a corresponding difference in the nature of the case. This noted, any case being given, the union of the several securities, as above, applicable with advantage to that case, will constitute the shape most proper to be given to the evidence in that case: and, so far as shape is concerned, the non-application of any one of them, yet more of any greater number, or the whole number, of them, will have the effect of denominating the evidence an inferior sort of evidence—a sort of evidence, the probative force of which has, by the operation of that deficiency, suffered a decrease.
So far as the nature of the case (meaning in each instance the individual case) is such as to render the application of the several securities practicable,—so far the degree of probative force given to it depends upon the will, and is at the option of the legislator—or, under unwritten law, of the judge, in his disguised, but not the less real, character of legislator.
The person who is the source of the evidence in question, being forthcoming, or in some other way accessible and justiciable, it depends upon the legislator, and upon the judge as legislator, whether to receive or call for his testimony under the securities afforded by oath and examination together (as before a jury,) or without either (as in case of common-law pleadings,) or under oath without examination (as in case of affidavit evidence,) or under examination without oath; and the examination performed either in the oral mode, as in jury-trial, or in the epistolary mode, as in the case of a bill in equity.
III. Remoteness of the testimony, as delivered, from the supposed seat of perception:
In the case of the above-supposed standard lot of evidence, the testimony or statement of the fact was delivered to the ear or the eye of the judge in an immediate way, from the mouth or the pen of the deponent by whom, in the character of a percipient witness, the fact was supposed to have been observed. But, between the mouth of the percipient witness and the ear of the judge, any number of mouths may have intervened; of which that one, by which the statement was conveyed, without the intervention of any other, to the ear of the judge, is the mouth of the deposing witness. For every one of these intervening mouths, the evidence, it is manifest, cannot but lose a proportionate share of its probative force. In like manner, between the pen of a percipient witness and the eye of the judge, may intervene any intermediate number of pens: like loss of force for every intervening pen as for every intervening mouth; though not in equal degree from the intervention of pens as from the intervention of mouths.
As mouths may succeed mouths, and pens pens, so may mouths and pens succeed one another in every variety of alternation. To these varieties correspond so many specific modifications of the genus of transmitted or transmissive evidence—modifications, some of which, being noticed in practice, require distinctive names.
A circumstance that contributes in a principal degree to the diminution of the probative force that takes place in the case of transmitted evidence, is, that the factitious securities applicable to the testimony of the deposing witness, do not reach nor apply to the station of the percipient witness.
It often happens, that the very fact in question has not fallen within the reach of human perception or observation. In this case, the judge is left to infer the existence or non-existence of it, from the ascertained or supposed ascertained existence or non-existence of some other fact or facts, so connected with the existence or non-existence of the principal fact as to be considered evidentiary with relation to it; i. e. as serving to prove to us the existence of it—to persuade, to satisfy us of the existence of it, with an indefinitely variable degree of force. Evidentiary facts, thus connected with the principal fact, constitute what, in the language of jurisprudence, is called circumstantial evidence.
In this denomination may be seen an appellation familiar, in the language of England, to lawyers, and even to non-lawyers, but not so in the language of any of the nations trained up under Roman law.
The species of evidence designated by this appellative, agrees in one respect with the above-mentioned modifications of unoriginal evidence, viz. in respect of remoteness from the source. In every instance, the image presented by it is the image—not of the fact itself which is in question,—but of some other fact, the tendency of which is to produce, or contribute to produce, a belief of the existence of such principal fact.
With few or no exceptions, all real evidence will be found to come under the head of circumstantial: but there is a species of evidence, which, though not properly testimonial, may yet, inasmuch as it has a person for its source, be called personal.*
To this head may be referred deportment, and in some cases even discourse.†
DEGREES OF PERSUASION AND PROBATIVE FORCE, HOW MEASURED.
Importance of a correct form for expressing degrees of persuasion and probative force.
Persuasion admits of, and exists in, different degrees of strength, different degrees of intensity; for strength, force, and intensity, are here synonymous.
Of these differences, the practice of wagering affords at the same time a proof of the existence, and a mode of expression or measurement for the quantities or degrees: in which latter character it will claim, farther on, a more particular notice.
Another matter of fact not less notorious is, that by these theoretical differences and supposed degrees of difference, in whatever mode and with whatever degree of accuracy expressed and measured, human conduct is on a variety of occasions governed: instance once more the practice of wagering, and the various applications of the principles of insurance grounded on it.
Not only the persuasion of an ordinary man on an ordinary occasion, but the persuasion of a judge on a judicial occasion, is capable of existing in different degrees of strength.
Whenever a fact comes in dispute, the belief of which on the part of the judge is necessary to produce and warrant such a decision as shall give effect to a right, the first object aimed at by the legislator ought to be, as already stated, so to order matters, that evidence of the highest possible degree of probative force in proof of that fact, shall be forthcoming: the next object, that the judge may always form the same estimate of the probative force of the evidence, as the legislator would do if it were possible for him to take an estimate of it.
But every element of judicature is subject to variation in quantity and degree.
In the case of circumstantial evidence, the probative force of the evidentiary fact, considered as indicative of the existence of the principal fact (which is as much as to say the strength of the persuasion produced by it,) is susceptible of every variety of degree in the bosom of the judge.
In the case of immediate testimonial evidence (setting aside the consideration of any supposed improbability of the fact stated, and any supposed imperfection in the disposition and character of the witness,) the strength of persuasion on the part of the judge will be as the strength of the persuasion expressed on the part of the witness: which is, in other words, to say,—the probative force of the testimony delivered by the witness will be exactly as, or rather will be the same thing with, the strength of the persuasion expressed by him in the delivery of it.
The strength of the persuasion expressed by the witness will, if clear of wilful falsehood, be (in so far as the means of discourse at his command admit of correctness) exactly the same in degree with the strength of the persuasion actually felt and entertained by him at the time.
But the strength of the persuasion so entertained by him is subject to be diminished in any degree by each of two causes: viz. 1. By weakness on the part of his percipient faculty, i. e. want of clearness and distinctness on the part of the conception formed of the fact at the time; 2. By weakness on the part of his retentive faculty—want of strength and distinctness on the part of the impression made on the memory by the firstformed conception.
Of incorrectness in one quarter, error and consequent misdecision in another is thus a natural result.
If, on comparing together the testimonies delivered by a number of witnesses—say by three witnesses—it appears to the judge that they joined, all of them, in regarding the existence of the fact as more probable than the non-existence of it; whereas, in truth, the force of the persuasion, when thus compounded together, lay not on that side: here an instance of misdecision will have taken place on the part of the judge; and no worse could have happened, had these testimonies been none of them forthcoming, or had they all, after joining in a tale of wilful falsehood, obtained credence for it as if it had been true.
In what has been already said, reason will probably be seen for regarding a correct mode of expressing degrees of persuasion and probative force as an object of no inconsiderable importance; and the further we go into the examination of the subject, the clearer will be the light in which the importance of it will present itself.
Unfortunately, the language current among the body of the people is, in this particular, most deplorably defective:—I know—I believe:—the fact happened so and so—I believe it happened so and so: and there the gradation ends.
Among men of law, to whichsoever of the two great schools of law belonging, nothing better is to be found.
The language of mathematicians will be seen to afford two different modes or principles.
One is perfectly correct: it is the mode of expression used in speaking of the doctrine of chances. But unfortunately it will be found not applicable to the present purpose.
Another, as applied to the present purpose, will be found incorrect. It is that which, assuming the greatest possible quantity to be a finite quantity, proceeds to divide it into parts; as a circle, which, how small soever, constitutes a whole, has, according to the usage of mathematicians, been divided into 360 degrees. Happily, incorrect as it is, its incorrectness will not be found attended with any practical inconvenience; since, on each occasion, whatever degree of correctness can on that occasion be of any use, can always be attained.
In truth, between infinite and finite, there is no medium; between the one mode and the other, there is accordingly no alternative. Of that mode which considers the greatest possible degree of probative force as being (what it really is) an infinite quantity, it will be seen that it is altogether inapplicable to the purpose of judicial decision: there remains, therefore, as the only mode applicable, that which considers it as a finite quantity, having the number of its parts limited and determinate.
Suppose a number of witnesses deposing to the principal fact in question, in the way of direct evidence—there being no need of any such inference as has a necessary place in the case of circumstantial evidence; and suppose, moreover, that no doubt has place in the mind of the judge respecting the character and disposition of any of those witnesses; whatsoever be the aggregate force of persuasion entertained by all those witnesses put together, such, of course, will be the strength of persuasion on the part of the judge.
Conceive the possible degrees of persuasion, positive and negative together, to be thus expressed:—
The degrees of positive persuasion—persuasion affirming the existence of the fact in question—constitute one part of the scale; which call the positive part.
The degrees of negative persuasion—persuasion disaffirming or denying the existence of the same fact—constitute the other part of the scale; which call the negative part.
Each part is divided into the same number of degrees: suppose ten, for ordinary use. Should the occasion present a demand for any ulterior degree of accuracy, any degree that can be required may be produced at pleasure, here, as in other ordinary applications of arithmetic, by multiplying this ordinary number of degrees in both parts by any number, so it be the same in both cases: the number ten will be found the most convenient multiplier. In this case, instead of 10, the number of degrees on each scale will be 100, or 1000, and so on.
At the bottom of each part of the scale stands 0; by which is denoted the non-existence of any degree of persuasion on either side—the state which the mind is in, in the case in which the affirmative and the negative, the existence and the non-existence of the fact in question, present themselves to it, as being exactly as probable the one as the other.
Such is the simplicity of this mode of expression, that no material image representative of a scale seems necessary to the employment of it.
The scale being understood to be composed of ten degrees—in the language applied by the French natural philosophers to thermometers, a decigrade scale—a man says, My persuasion is at 10 or 9, &c. affirmative, or at 10 or 9, &c. negative: as, in speaking of temperature as indicated by a thermometer on the principle of Fahrenheit, a man says, the mercury stood at 10 above, or at 10 below, 0.
If ulterior accuracy be regarded as worth pursuing, to the decigrade substitute (giving notice) a centigrade scale; and if that be not yet sufficient, a milligrade.
Three persons make their appearance in the character of witnesses in relation to the existence of the same fact: an option is given to them of three declarations, of which, one or other, in the instance of each witness, it is evident cannot but be true; viz. 1. I believe the fact exists;—2. I believe the fact does not exist;—3. I am unable to form any belief concerning the fact, whether it does exist or does not. Being asked, each of them, what number of degrees in the scale comes nearest to expressing the strength of his persuasion, it being, as already declared by each, on the affirmative side; they answer by indicating, each of them, the same number—number 1.
In these three instances, the force of persuasion is at the least amount at which it can stand on either side.
Take now, in relation to the same fact, two other witnesses; and in the instance of each of them, let the force of persuasion be at its maximum, represented as above by the number 10.
Of these two witnesses, the persuasion may be on the same side as that of the three witnesses; or it may be on the opposite side.
Suppose it on the opposite side, viz. the negative. Out of 30 degrees of persuasion which the three witnesses might have had, they have but 3; while of the 20, the utmost number which the two were capable of having between them, they have the whole.
Observe now the variation which the decision of the judge must experience, according as he has or has not the means of hearing and noting down the differences which are in every instance liable to have place in regard to the quantum of persuasion on the part of witnesses.
It, as hitherto, these differences are unascertainable (the indications afforded by character and by probability being by the supposition out of the question,) the judge can do no otherwise than decide according to the number of the witnesses—according to the difference between the numbers on each side, his decision will be—the fact does exist.
If, being ascertainable, these differences are ascertained, as above,—the force of persuasion on the part of the witnesses on both sides taken together, being now his guide, and beyond dispute his proper guide, his decision will be—the fact does not exist.
Thus much as to the station of witness: let us come now to the station of judge.
Casual modifications apart, the persuasion of the judge has for its efficient cause, the persuasion of the witness persuasion on the part of the public at large has for its efficient cause, the persuasion of the judge.
But among three, and even as far as nineteen witnesses, in relation to the same point, the aggregate force of persuasion, it may easily happen, shall be less than among two witnesses.
In like manner among three, and even as far as nineteen judges, in relation to the same point, the aggregate force of persuasion may be less than of two other judges.
For want of an adequate mode of expression, the real force of testimony in a cause has hitherto been exposed to perpetual misrepresentations.
For want of an adequate mode of expression, the real force of judicial opinion and authority in a cause has in like manner been hitherto exposed to similar misrepresentations.*
Of a scale of this sort, supposing the use of it allowed, five things, it should seem, might be predicated, viz.—
1. That when employed, it would be employed without confusion, difficulty, vexation, or other inconvenience in any shape.
2. That, at first more especially, it would not however be in frequent use.
3. That by degrees, as the human understanding improved, the use of it would become more and more frequent.
4. But that at no time would the number of occasions calling for it (i. e. the number of the occasions on which, for the purpose of giving a correct expression to the degree of persuasion felt by him, the individual felt the need of such an instrument) be very considerable.
5. That the greater the importance of the cause, the more likely would the instrument be to be called into use.
Being altogether optional, all possibility of vexation is by that circumstance excluded from the use of it.
Everything of difficulty and confusion stands equally excluded, a man will not call for the scale unless he knows perfectly well how to use it—and it seems not easy for a man not to know. If he makes no use of the scale, the effect of his testimony or his suffrage is as if he had placed the index at No. 10, the highest degree in the scale: if it be his desire to make use of the scale, he places the index at No. 9, or any lower number, as he pleases.
The use of it, says the third observation would be gradually more and more frequent.
Increased correctness, in effect, is the natural result of increase of attention: in proportion as the attention of man fixes itself closer and closer to any subject, advancement in science, as well as increased correctness in art and practice, gradually creep on. It is by increased closeness of attention that discoveries are made, and advances effected, in every path of art and science.
Old measures of every kind receive additional correctness; new ones are added to the number, the electrometer, calorimeter, the photometer, the eudiometer, not to mention so many others, are all of them so many productions of this age. Has not justice its use, as well as gas?†
Application of the principle to different cases in Judicature.
Strength of persuasion belongs to that class of facts which has already been distinguished by the name of psychological facts.* Among the properties of the facts of this description, is that of not being indicated by direct testimony, other than that of the one individual in question: under that exception, not being indicated by other than circumstantial evidence.
Of a persuasion on the one side or the other, the declaration has on various occasions been rendered matter of obligation in legal practice. But as to the force or degree of persuasion, no distinction having ever been called for on any occasion, so accordingly not on this.
The fact of the existence of a persuasion on the affirmative side, or on the negative, has been considered as being, when untrue, susceptible of being disproved; and so thoroughly susceptible, that, in case of falsity, such falsity has been deemed, and in practice constituted, a ground for punishment. In every instance of the crimen falsi—in every instance in which falsehood, howsoever expressed, whether by discourse or by deportment, enters into the composition of the offence—such is the case; for a false assertion is the false declaration of a persuasion in relation to some fact or facts.
On pain of eventual punishment, a man is thus continually called upon to declare persuasion, and punished in the event of his being deemed to have placed it on the wrong side of O [Editor:?]. But even supposing the scale of persuasion in use, it would scarcely for a long time, if ever, be deemed consistent with justice to punish him on the ground of his being deemed to have placed his persuasion at a wrong point on the right side.
In case of adverse interest striving to produce deception, there appears therefore but little if any hope, that any considerable beneficial effect could be produced by an instrument of expression, the use of which is, in the respect in question, to put the means of correct expression in men’s hands.
But, happily, instances are by no means wanting in which interest is neuter; insomuch that, whatsoever be the real force of a man’s persuasion, it would be on the score of interest not disagreeable, and on the score of love of justice, and other social affections, positively agreeable, to make declaration of that in preference to every other.
In the intercourse of life, and for self-regarding purposes, nothing (as hath been already intimated) is more common than for men to give expression to the force of their persuasion, and upon a principle closely analogous, to the utmost nicety. Wagering in all its forms, whether in the way of sport or in the way of business, under the guidance of forecasting prudence, has already been mentioned in this view.
Under the influence of a principle of action comparatively so faint, in the greater number of minds, as the love of justice, or any other modification of the social principle, equal correctness cannot reasonably be expected, since attention equally close cannot reasonably be expected. But, that everything that could be wished cannot be obtained, is no reason why that which can be obtained, should, if useful, be neglected; and by the help of a scale of persuasion, as here brought to view, it is easy to see how high a degree of correctness might be attained in this particular, in comparison of everything that has been as yet exemplified.
Apply it first to the case of a witness.
At present, when a witness has delivered his evidence, if stated in a simple manner, without any expression of doubt, it is understood of course as being at its maximum. But it any doubt or diffidence—anything tending, as supposed, to call upon the judge to make any defalcation from that maximum, is manifested, the subject is thereby thrown into a sort of confusion, in the midst of which, the language in use not affording a clue, the judge acts according to the humour or interest of the moment; and as the interest of the moment never fails to urge dispatch, chance, at the best, shares the decision of the cause with justice.
In the use of the instrument by which the point in the scale of persuasion is fixed, there need not be any greater difficulty than in the use of the dial-plate of a clock or watch, or the instruments respectively employed for reckoning at a game at billiards or a game at cribbage.
If the importance of the cause appear such as to pay for this small portion of vexation and delay, the persuasive scale is presented to the witness, with liberty and discretion to place the index either at the highest point, it that be considered as the ordinary one, or at any inferior point by which, according to his own conception, the force of his persuasion may be more accurately designated.
Apply it now to the station of judge.
In this commanding station, men are without difficulty considered as exempt from, or proof against, the action of all sinister interest—proof, at any rate, against all temptation to any such mal-practice as that of misrepresenting their own opinions.
No objection, therefore, except to the novelty and utility of it, would, in the instance of judge, stand opposed to the taking a man’s own account for the inward strength of his own persuasion, and reducing the outward effect of it to a conformity with the real state of it so declared.
If the effect of such a liberty were to augment his power, the objections would be insuperable; but a man may, without much danger, he trusted with the faculty of reducing it.
In this case, be it observed, the grant of this faculty need not be confined to the question of fact: the import, or state, of the law (the import of it if in the form of statute law, the state of it if in the form of judge-made law) constitutes a no less proper subject of persuasion—in a word, a no less proper subject of opinion—than the question of fact.
Under this general head, a variety of particular cases will exemplify the utility of this instrument of accurate judicature.
Case 1. Judges divers, and the number equally divided.—In this case, the supposition acted upon is, that on the part of every one of them, the force of persuasion was at the same pitch—on the part of each of them, at its maximum. The instrument employed, it would turn out, perhaps, that in each of them the force of persuasion was different; on one side or other an aggregate force of persuasion clearly preponderant.*
Case 2. Appeal.—The decision become the subject of an appeal to an ulterior judicatory.
Not unfrequent are the occasions on which the real aggregate force of persuasion on the part of the original judicatory may, on just grounds, be taken into consideration by the ulterior judicatory. Suppose, for example, a question of fact, and evidence thereupon delivered vivâ voce. In some cases, the testimony of the witness cannot be received in the oral form on any terms by the ulterior judicatory: at any rate, by the repetition, the colour of the evidence, especially so much as is afforded by deportment,† is liable to be changed. To be informed of the impression made on the original judicatory by the same testimony, and in its freshest state, might on such an occasion be of considerable use.
Case 3. Pardon. In a penal case, the judgment being a judgment of conviction, a question proposed is, whether the power of the sovereign shall be applied to the remission of it.
Among the most justifiable causes for the exercise of this power, is a doubt whether the defendant, who has been deemed guilty as above, was really so.
Sometimes the cause of such doubt is to be found in some article of information subsequently brought to light, and, in the character of evidence, sufficiently established for this purpose. But at other times, the doubt has for its cause a doubt on the part of the judicatory: on the part of some judge or judges, the persuasion entertained of the delinquency of the defendant not being at so high a pitch as, to warrant an operation to such a degree afflictive, it is conceived it ought to be. Pardon or no pardon turning in this case upon the degree of persuasion on the part of each member of the judicatory, the importance of accuracy in the expression given to those several degrees is sufficiently manitest.
Even although the principle of judging from the aggregate of persuasion, instead of the number of persons persuaded, should not be adopted for judicial decision, it might for pardon.
Case 4. The same question moved elsewhere, in another judicatory and in another cause.
So far as concerns the question of fact,—unless where, being considered as having received a decision in the antecedent judicatory, that decision is considered as conclusive,—the opinion of the members of any such antecedent judicatory is not usually taken for an object of regard.
But in so far as any question of law is concerned, great anxiety is commonly testified to learn with the utmost correctness the degree of persuasion entertained in such antecedent judicatory, supposing it not subordinate with relation to the judicatory now in question.
Case 5. Punishment or satisfaction to be administered pro modo probationum.
A topic this, which, though it be in the Roman school, and in particular in the French form of that school, that it has received a name, is in practice not altogether disregarded in the English school. Various are the instances in which a degree of probative force, which would not be considered as sufficient to warrant conviction for the purpose of punishment, is considered, and not without reason, as sufficient to warrant a decision by which satisfaction in some shape or other is awarded. The only expression that can be given by a judge to the conception entertained by him of the degree of probative force appertaining to the evidence, being a declaration of the degree of strength of the persuasion of which it has been productive, it seems sufficiently obvious how material it is to this purpose, that a mode of expression the most correct that the nature of the case admits of, should on this occasion be capable of being employed.
Case 6. Scientific evidence.—Scientific is the denomination that, for distinction’s sake, may be given to the judicial declaration of a species of functionary, in whose function the character of judge is in some sort combined with that of witness. It comes to be exercised as often as—for the guidance of the opinion of the regular judge in relation to some matter of fact, a just conception of which is considered as requiring some particular skill, such as falls not to the lot of all members of the community, nor in particular, unless by accident, to the lot of the regular judge,—the opinion of a person considered as being in an adequate degree possessed of the species of skill in question, is called in.
In the Roman school, this species of functionary is named by the judge, and treated on the footing of a sort of judicial officer acting under the judge.
In the English school, he is named by the party to whom it occurs to expect that an opinion extracted from that source will be serviceable to his side of the cause; and is treated on the footing of any other witness.
On whatever footing his opinion, in other words his persuasion, in relation to the matter of fact in question, is called in, it cannot be matter of doubt how beneficial it cannot but be to the interests of justice, that the means should be in his hands for giving to the expression of the degree of force of his persuasion whatsoever degree of accuracy he thinks fit.
Incapacity of ordinary language for expressing degrees of persuasion and probative force.
Such, as above brought to view, are the advantages deducible from an adequate mode of expressing degrees of persuasion and probative force, supposing it to be found. If the current language were adequate to this purpose, there would be no need to look out for any other. That to this hour it remains as far from being so as it is possible for it to be, is perceived upon a general view at the first hint. But, by a particular observation or two, the nature of this penury may be rendered more distinctly perceptible.
In a word, the only adequate mode of expressing degrees of persuasion is by numbers. But hitherto, neither in ordinary language, nor in the scientific language of jurisprudence, have numbers been employed. The result, in point of imperfection and inadequacy, will be conspicuous.
Persuasion, the only term equally proper in all cases—that is, in all degrees—is accordingly the term that has all along been employed here.
Opinion, though in some cases capable of taking its place, is not synonymous with it; since opinion is scarcely considered as being, like persuasion, susceptible of degrees.
In addition to this term, which, comparatively speaking, is not in very frequent use, come two others, both of them in perpetual use, viz. knowledge and belief.
In ordinary discourse, applied to ordinary topics, the word belief seems to be applied to designate any degree of persuasion; and accordingly it cannot be employed to designate any one, to the exclusion of any other.
Among religionists, applied to the topic of religion, it is employed to designate the very highest degree, and to the exclusion of every other; since it is not any inferior degree that will satisfy them.
Among lawyers, on the contrary—to wit, among English lawyers, it has been employed to designate any inferior degree of persuasion, to the exclusion of the highest.
For giving expression to the highest, what they have declared themselves to expect, is, that a witness shall either employ the forms of naked assertion—such a thing is so and so—or introduce the word knowledge. Belief, in certain cases, they have admitted of, recognising it as designative of an inferior degree of persuasion; but in other cases, in the character of an expression of the degree of persuasion, nothing will satisfy them but knowledge—a degree of persuasion above belief.
If your persuasion falls short of amounting to belief, the priest, so far as depends upon himself, consigns you to everlasting punishment in a life to come:* if it fails of mounting above belief, the man of law, the judge, consigns you, and in a manner more visibly efficient, to punishment in the present life.†
Knowledge, with its logical conjugates, comprising the verb to know, not only expresses the highest degree of persuasion possible, but in some circumstances expresses that highest degree of persuasion as existing in two different minds at a time. If I say—I know that London lies to the north of Paris. I speak of my own persuasion only; but if I say—You know that London lies to the north of Paris. I speak of my own persuasion as well as yours—of yours alone expressly, but of my own by implication, and that a necessary one; for were my persuasion on the subject short of the highest point, the expression would be a contradiction in terms.
In this instance, as in so many others, the indirect mode of assertion has the effect of expressing a stronger degree of persuasion than can be expressed by the direct.‡
In the language of English as well as other lawyers, a case is spoken of as proved—as fully proved. In regard to the state and degree of persuasion, and of the nature of the cause by which, on the part of the judge, it has been produced, what is understood by this expression? Answer: That, the evidence being either direct—or, if circumstantial, of that sort which is commonly received either as an equivalent or as a necessarily receivable substitute to direct—the strength of persuasion expressed by it on the part of the witness is such as (it standing unopposed either by any objection, or at least by any preponderant objection, to the trust-worthiness of the witness, or by any counter-evidence, or at any rate by counter-evidence of preponderant force) will naturally, on the part of the judge, be productive of such a degree of persuasion, in affirmation of the existence of the fact in question, as shall be sufficient to authorize and require a decision on that side.
In speaking of evidence as having been delivered in relation to the fact in question,—suppose an occasion to arise for avoiding to pronounce decidedly concerning the direction or strength of the persuasion of which it may have been productive: in this case, instead of speaking of the fact as having been proved, the usage is to speak of it as having been attested, affirmed, or denied, in or by deposition or evidence.
Roman school—its attempts to express degrees of probative force.
The Romanists, in expressing their sense of the importance of giving correctness to the description tendered of the degrees of persuasion entertained in each case, betray, and in a manner confess, their incapacity of finding a solution for the problem thus proposed.
1. Full—2. More than half-full—3. Half-full—4. Less than half-full:—Such, if Heineccius is to be believed, are the degrees of probative force that have been distinguished, and have received denominations, in his school of fraud and nonsense.∥
But of these distinctions the application is continued to the aggregate mass of evidence taken together—the mass produced on one side of the cause. They are not applied either to the force of persuasion on the part of the judge, or so much as to the probative force of the evidence of any one witness when considered by itself.
That they should have had any application to the probative force of the evidence of any witness taken singly, would indeed, according to the notion of that school, have been somewhat difficult: seeing that, according to what, by him, is given as the better opinion, the probative force of the evidence of any one witness, be he who he may, is equal to 0: insomuch that, of the party by whom any such article of evidence has been produced, and no more, the condition ought not to be better than if he had produced none at all.*
In the French form of the Roman school, another scale, of a somewhat different construction, was in use, according to M. Jousse,† in the particular case in which the cause was of that sort which, if decided against the defendant, subjected him to capital punishment, and, by way of preparation for that punishment, to torture.
1. Highest degree of probative force, the degree sufficient to warrant conviction.
2. Next highest, or second degree of probative force, the degree expressed by the words “urgent and indubitable.” The practical effect of this degree of probative force was sufficient to subject him to torture, with power to the judges to subject him to any punishment short of capital, if the torture, the object of which was to prevail upon him to confess whatever he was accused of, failed of producing that desirable effect.
3. Third degree of probative force, the degree expressed by the words less than “most violent.” Practical effect, subjecting him to torture, but without any such power to the judges: the torture having, when the probative force was at this degree, and not above a “purgative” quality, and that of so particular a sort, as to “purge the proofs” (what is meant is probably to purge away the proofs) whatever they may be, that have operated to his prejudice in such manner as to subject him to the torture.
English school—its attempts to express degrees of probative force.
1. Positive proof—2. Violent presumption—3. Probable presumption—4. Light or rash presumption: such are the degrees of probative force that have been distinguished and denominated in the English school.
At the head of this scale, under the appellation of positive proof, is designated direct evidence, however trustworthy the source: below it, circumstantial, however great its force: and to make the distinction so much the clearer, “violent presumption,” we are told, “is many times equal to full proof;”—“probable presumption hath also its due weight;”—“light or rash presumptions have no weight or validity at all.”
The degree of probative force indicated by the light or rash presumption of the English school, is thus exactly equal to that expressed by the half-full proof of the Roman school; each of them being equal to 0.
But the Roman school has risen to a pitch of accuracy by which the English has been left at a distance; the Romanists having a degree of force which is less than equal to 0, and which, though incapable of producing in the breast of the judge any degree of persuasion whatsoever, is still probative force.
The scale thus exhibited is a scale of probative force abstractedly considered—considered without distinction made as to the quantity and composition of the evidence to which the probative force is considered to belong.
It has accordingly no connexion with, or reference to, that other scale above mentioned, which is a scale of persuasion merely, and of which the degrees are two, and but two, expressed by the words knowledge and belief.
No such suspicion appears to have found its way into either of these learned bosoms, as that of a connexion between any such objects as persuasion on the part of a witness, probative force on the part of his testimony, and persuasion on the part of the judge—all susceptible of variation on one and the same scale.
The observation of the connexion between these clearly distinguishable, though so closely connected, objects, was, as far as it goes, an observation in psychology—an observation made of the invariably observable phenomena of human nature; and it is among the characteristics of technical law learning, as of Aristotle’s system of dialectics, in which his system of physics was comprised, to look down with indignant disdain on the invariably observable phenomena of human nature.
In both instances, the notion entertained of science seems to have been that it was confined to words; that it consisted in a perpetual substitution of words to words; and that—in addition to words—ideas, clear and distinct ideas, were no better than an incumbrance
1. Unqualified assertion;—2. Assertion qualified by the words “to his remembrance,” or, “as he believeth:”—such are the forms of speech devised by the Earl of Clarendon when chancellor of England, for expressing two degrees of persuasion, which it seemed necessary to him to distinguish.§
This second or inferior degree of persuasion is the degree which he permitted to be expressed in the case of a defendant interrogated by an instrument called a bill in equity, as to a matter charged as his [the defendant’s] own act, in any other case than “if it be laid to be done within seven years before;” not saying before what, but probably enough meant to designate the day on which the matter of the written instrument met his eye.
But if it be laid to be done within seven years before, then it is that the proposed respondent must (on pain, it should seem, of being punished, if he persists, for contempt, as having put in an insufficient answer) take care not to suffer to stand as part of his answer either of those forbidden forms of speech; “unless the court, upon exception taken, shall find special cause to dispense with so positive an answer.”
The circumstance by which, on this occasion, the attention of this learned person appears to have been engrossed, is the distance in point of time: among the circumstances that appear to have escaped it, are, the importance of the fact (regard being had to the situation and character of the deponent,) the differences of which that importance is susceptible, and the influence of these differences upon the memory. Another consideration, alike overlooked, seems to have been the influence of time of life upon memory, and the difference in this respect between immaturity, maturity, and caducity.
But the faculty of having recourse to the wisdom and justice of the court “upon exception taken,” presented a solution for every difficulty, a remedy for every inconvenience; a faculty which, to the merit of being to the suitor a source of relief, added the much superior, though so little published, merit, of being, to the judge, his friends, and dependents, a source of fees.
On the present occasion, however, the mode of constructing the scale, and giving denomination to the degrees of which it is composed, constitute the proper subjects of consideration: not the application or applications made of them.
“You shall swear that what is contained in this your answer, so far as concerns your own acts and deeds, is true, and that what relates to the acts and deeds of any other person or persons, you believe to be true. So help you God.” (Before commissioners,)—such is the form of the oath at present exacted of a defendant in an equity court, or, at any rate, on the equity side of the court of Exchequer.* Of two things, one: either there is something in the air of the court of Exchequer that strengthens a man’s memory, and relieves it from the need of having recourse to that indulgence which has just been seen to be allowed in the court of Chancery: or the indulgence of the court has been silently withdrawn in practice, while the continuators of Mr. Harrison’s book continue to represent as still in force the regulation by which it was granted.
An infinite scale inapplicable, though the only true one.
In respect of persuasion and probative force—persuasion, in the first place on the part of a witness, in the next place on the part of the judge—probative force on the part of the evidence, of whatsoever nature it be, direct evidence or circumstantial evidence, evidence of persons or evidence of things;—an infinite scale (it has been already intimated) is the only sort of scale by which the truth of the case can be expressed. For what can that mass of evidence be, to the probative force of which no addition is made by the addition of a mass of evidence, exactly of the same composition in every respect, and twice as great?
Unfortunately, a scale to such a degree correct would not, physically speaking, be capable of being applied to the particular purpose here in view.
The use, and only use, of the sort of scale in question, would be to enable the witness to give to his testimony, or the judge to his opinion, a less degree of effect in practice than what it is productive of without the employment of any such scale.
At present, the effect given to any such testimony in practice is as great—never less than as great—as the utmost effect of which the highest possible degree of persuasion in that single breast could be productive. On the side of augmentation, then, nothing remains to be done. The persuasion is considered as being, in every instance, at the highest degree; or at any rate, in practice, the same effect is given to it as if it were.
At the same time, many are the instances in which it may be rendered manifest beyond a doubt, that the degree of persuasion, to which in practice all the effect is given that could be given to the highest, really falls greatly below the highest degree of which the force of persuasion is susceptible.
1. In the case of the witness, this deficiency can scarcely be rendered manifest by any considerations of a nature to operate alike on all minds to whom they are presented: where it exists, it is matter not of demonstration, but of sensation only; viz. on the part of the witness in question, by whom alone the force of the persuasion, of which the seat is in his own mind, can be perceived.
Even the witness, the individual himself whose persuasion is in question,—though his perception may have informed him, that, of two cases, his persuasion has been stronger in the second than in the first; still it is only by calling in the aid of numbers that it will be possible for him to declare, or so much as to settle with himself in his own mind, how much, of numbers, as, for instance, by saying,—in the first case it seems to me that the probability of the fact is as 2 to 1, in the second case as 4 to 1; insomuch that, were it matter of necessity to me to lay a wager on the subject, such and no more are the odds that I would lay or take in the two respective cases.
2. In the case of the judge, on the other hand, the deficiency may be rendered manifest to third persons.
On the subject of a question of fact, deposed to by a number of witnesses—the fact having nothing of improbability in its nature, nor the witnesses anything to distinguish them in point of trustworthiness, nor their testimonies respectively anything to distinguish them in respect of the degree of persuasion manifested—the degree of persuasion on the part of the judge will of course be as the number of the witnesses.
This being the case,—by every witness added on the same side, an additional degree of force will be added to the persuasion of the judge: and if this be true with regard to a second and a third witness, it cannot be otherwise than true with regard to a hundredth or a thousandth.
Long before the number of witnesses has reached to the height of a hundred, the mind of the judge (it may be said) will have obtained all the satisfaction it could desire: long before this, the multitude will have appeared to him so abundantly sufficient, that he will have refused to give admission to any more.
This may, and naturally will be, the case. But should be even have refused admission to all the witnesses after the second, it will be impossible for him to deny but that, after a thousand have been heard, an addition will still be made, by any other such witness, to the aggregate probative force of the whole mass of evidence thus composed. Had he been the only witness, the testimony of this thousandth and first would of itself have been sufficient to determine the opinion of the judge. Such being the probative force of this testimony, if taken by itself, can there be any colour of reason for saying of it, that it will be destroyed by the addition of a quantity of the same force, a thousand times as great?
If such be the case while the witnesses are supposed to be all of them on the same side, still more manifestly will it be so, if, so many speaking in affirmation of the fact, so many others in negation of it, the number of them be supposed to be on each side the same. In this way, let there be two thousand of them, the probative force of the two thousand and first will be no less perceptible and efficient than if he had been the only one.
Moreover, by this same example it seems manifested, that it is not possible that the probative force of testimony, nor, therefore, that the force of persuasion on the part of the judge (to which may be added, on the part of any witness taken by himself) should, on the side of augmentation, have any certain limit. It can never be so great but that it would be capable of being rendered still greater.
In these circumstances, to allow to any person, either in the station of witness or in that of judge, the faculty of adding at pleasure to the declared force of his persuasion, would be to allow of an operation at the same time endless, useless, and ridiculous. Whatever latitude would in this respect be allowed to any one such person, would be to be allowed to every other. But the tendency of persuasion in one mind being to propagate like persuasion in other minds, and every such act of propagation being an exercise of power, the natural tendency of such an allowance would be a sort of auction, on the one part between witness and witness, on the other part between judge and judge; and in both cases, an auction that would have no end. It being of the number of those cases in which insincerity and abuse would be altogether incapable of detection, it would also be of the number of those cases in which insincerity is universal, or little short of it.
But suppose again (impossible as the supposition is,) that the highest possible degree of persuasion could, by means of such a scale, be reached and expressed, still in practice it would be useless; since no greater effect could be given to the maximum, the expression of which is the supposed result and fruit of the scale, than at present is given to the ordinary assertion, expressed in ordinary language, and without the use of any such scale. Of this simple assertion the effect is to act with the whole probative force of the testimony of the witness—with the whole force of the suffrage of the judge; and from the highest degree of persuasion,—were it possible, by the help of any such scale, to reach it and express it,—no greater effect could ensue.
From the allowance of a scale of the opposite description, limited on the side of increase (limited in effect by its being raised up, as under the present practice, to its maximum, in every case in which no scale is employed,) beneficial effects might be produced in some cases, no evil could be produced in any case.
Of the good effect, the nature has already been brought to view: the decision rendered conformable to justice, in cases in which, without the benefit of this instrument, it could not be conformable.
Abuse there could be none—insincerity there could be none: whether in the station of witness or in that of judge, a more irrefragable proof of sincerity could not be given, than by having recourse to such allowance.
By representing the force of his persuasion as lower than it is, what advantage could a man gain by the use of such a scale, more than he could gain without it?
Yes (it may be said,) a man may in this way diminish the declared force of his persuasion, and thence the probative force of his testimony, contrary to truth, and yet without risk. Placing it on the wrong side, the falsehood of the declaration might be proved from other sources, and he punished for it as in case of perjury: but placing it on the right side, though at the wrong end, viz. at the very bottom—at I, when it ought to have been at the very top, viz. at 10—he may thus, without risk, strike off nine-tenths of the force of his testimony: which defalcation, if there be many testimonies on both sides, may turn the scale.
Answer: True: in this case, he will save himself from punishment: but neither will he produce the mischief aimed at. Whatever force of counter-evidence would, in case of his placing his declared persuasion on the wrong side, have been sufficient to convict him to the purpose of punishment, the same counter-evidence will, now that he has placed it at the wrong end of the scale, though on the right side, be, notwithstanding his endeavours, sufficient to prevent the abatement thus made in the degree of persuasion declared, from producing the corresponding diminution of probative force. He will not have it in his power to cut off a part of the force of his testimony from the side of truth, except in circumstances which would have allowed him with safety to throw it entire into the scale of falsehood.
NOTE BY THE EDITOR.
M. Dumont, in a note to the Traité des Preuves Judiciaires, has brought forward several objections against the scale which Mr. Bentham has suggested for the measurement of degrees of persuasion and probative force. It is fair that the reader should have the means of judging for himself, what degree of validity these objections possess. I quote from a recently published and very well executed translation of M. Dumont’s work. [See “A Treatise on Judicial Evidence, extracted from the MSS. of Jeremy Bentham, by M. Dumont, translated into English, 1825.” 8vo. p. 45.
“I do not dispute the correctness of the author’s principles; and I cannot deny that, where different witnesses have different degrees of belief, it would be extremely desirable to obtain a precise knowledge of these degrees, and to make it the basis of the judicial decision. But I cannot believe that this sort of perfection is attainable in practice. I even think, that it belongs only to intelligences, superior to ourselves, or at least to the great mass of mankind. Looking into myself, and supposing that I am examined in a court of justice on various facts, if I cannot answer ‘Yes’ or ‘No’ with all the certainty which my mind can allow, if there be degrees and shades, I feel myself incapable of distinguishing between two and three, between four and five, and even between more distant degrees. I make the experiment at this very moment: I try to recollect who told me a certain fact: I hesitate—I collect all the circumstances—I think it was A rather than B: but should I place my belief at No. 4, or at No. 7? I cannot tell.
“A witness who says, ‘I am doubtful,’ says nothing at all, in so far as the judge is concerned. It serves no purpose, I think, to inquire after the degrees of doubt. But these different states of belief, which, in my opinion, it is difficult to express in numbers, display themselves to the eyes of the judge by other signs. The readiness of the witness, the distinctness and certainty of his answers, the agreement of all the circumstances of his story with each other,—it is this which shows the confidence of the witness in himself. Hesitation, a painful searching for the details, successive connexions of his own testimony,—it is this which announces a witness who is not at the maximum of certainty. It belongs to the judge to appreciate these differences, rather than to the witness himself, who would be greatly embarrassed if he had to fix the numerical amount of his own belief.
“Were this scale adopted, I should be apprehensive that the authority of the testimony would often be inversely as the wisdom of the witnesses. Reserved men—men who knew what doubt is—would, in many cases, place themselves at inferior degrees, rather than at the highest; while those of a positive and presumptuous disposition, above all, passionate men, would almost believe they were doing themselves an injury, if they did not take their station immediately at the highest point. The wisest thus leaning to a diminution, and the least wise to an augmentation, of their respective influence on the judge, the scale might produce an effect contrary to what the author expects from it.
“The comparison with wagers and insurances does not seem to me to be applicable. Testimony turns on past events: wagers turn on future events: as a witness, I know, I believe, or I doubt; as a wagerer, I know nothing, but I conjecture, I calculate probabilities—my rashness can injure nobody but myself: and if a wagerer feels that he has gone too far, he often diminishes the chances of loss by betting on the other side.
“It appears to me, that in judicial matters the true security depends on the degree in which the judges are acquainted with the nature of evidence, the appreciation of testimony, and the different degrees of proving power. These principles put a balance into their hands, in which witnesses can be weighed much more accurately than if they were allowed to assign their own value; and even if the scale of the degrees of belief were adopted, it would still be necessary to leave judges the power of appreciating the intelligence and morality of the witnesses, in order to estimate the confidence due to the numerical point of belief at which they have placed their testimony.
“These are the difficulties which have presented themselves to me, in meditating on this new method.”
On these observations of M. Dumont it may, in the first place, be remarked, that if applicable at all, they are applicable only to the use of the scale by the witness, not to the use of it by the judge; which latter use, however, is perhaps the more important of the two. In the next place, even as regards the witness, I doubt whether any great weight should be attached to the objections. For, first, what almost all of them seem to imply is, that because we cannot in all cases attain the degree of exactness which is desirable, therefore we ought to neglect the means of attaining that degree of exactness which is in our power. The witness who does not know the degree of his persuasion—the witness to whom the scale would be useless—will not call for it: the judge will at all events have the same means of appreciating his testimony, as he has now, and will not be the more likely to be deceived by a witness who does not use the scale, because it has happened to him to have received the testimony of one who does.
Secondly, the most formidable in appearance of all M. Dumont’s objections—I mean that which is contained in his third paragraph—seems to me, if it prove anything, to prove much more than M. Dumont intended. The wise (says he) will place their degree of persuasion lower than they ought, the foolish higher than they ought: the effect, therefore of the scale, is to give greater power to the foolish than they otherwise would have, and less power to the wise. But if this be true, what does it prove? That different degrees of persuasion should not be suffered to be indicated at all; that no one should be suffered to say he doubts. It is not the scale which does the mischief, if mischief there be. There are but two sorts of witnesses—the wise and the foolish: grant to them the privilege of expressing doubt, or any degree of persuasion short of the highest; and the foolish, says M. Dumont, will make no use of the privilege, the wise will make a bad use. But if so, would it not be better to withhold the privilege altogether? Is it the scale which makes all the difference?
The truth seems to me to be, that the scale will neither add to the power of the foolish witness, nor unduly diminish that of the wise one. It will not add to the power of the foolish witness; because he cannot place his persuasion higher than the highest point in the scale; and this is no more than he could do without it. It will not unduly diminish the power of the wise witness; because the wise witness will know tolerably well what degree of persuasion he has grounds for, and will therefore know tolerably well whereabouts to place himself in the scale. That he would be likely to place himself too low, seems to me a mere assumption. The wiser a man becomes, the more certainly will he doubt, where evidence is insufficient, and scepticism justifiable; but as his wisdom increases, so also will his confidence increase, in all those cases in which there is sufficient evidence to warrant a positive conclusion.
OF THE FOUNDATION OR CAUSE OF BELIEF IN TESTIMONY.
That the cause of belief in testimony is experience.
That there exists in man a propensity to believe in testimony is matter of fact—matter of universal experience; and this as well as on every other occasion, and in any private station, as on a judicial occasion, and in the station of judge.
The existence of the propensity being thus out of dispute, then comes the question that belongs to the present purpose—is it right to give way to this propensity? and if right in general, are there no limitations, no exceptions to the cases in which this propensity must be admitted?
To the first question the answer is—Yes; it is right to give way to this propensity: the propriety of doing so is established by experience. By experience, the existence of the propensity is ascertained; by experience, the propriety of acting in compliance with it is established.
Established already by experience—by universal experience—it may be still further established by direct experiment, should any one be found willing to be at the charge of it. Continue your belief in testimony, as you have been used to believe in it,—the business of your life will go on as it has been used to do: withhold your belief from testimony, and with the same regularity as that with which you have been in use to bestow it,—you will not be long without smarting for your forbearance. The prosperity with which the business of your life is carried on, depends on the knowledge you have of the states of men and things; viz. of such men and such things as your situation in life gives you occasion to be acquainted with: and of that knowledge, it is but a minute and altogether insufficient portion that you can obtain from your own experience, from your own perceptions alone; the rest of that of which you have need must come to you, if it comes to you at all, from testimony.
And what is it that, by thus rendering it a man’s interest, renders it proper for him to bestow a general belief on testimony? It is the general conformity of testimony to the real state of things—of the real state of things to testimony: of the facts reported upon to the reports made concerning them.
And by what is it that this conformity is made known? Answer again—By experience. It is because testimony is conformable to the truth of things, that, if you were to go on treating it as if it was not conformable, you would not fail of suffering from it.
And by what is it that this conformity is produced? The question is not incapable of receiving an answer; and therefore, being a practically important one, it is neither an improper nor an unreasonable one: a little further on, an answer will be endeavoured to be given.
Forasmuch as, in man, whether on a judicial occasion or on a non-judicial occasion, in a judicial station or not in a judicial station, there exists a general propensity to believe in evidence; and forasmuch as, in general, the giving way to that propensity is right, being found to be attended with consequences advantageous upon the whole; so when,—on a judicial occasion and in a judicial station, a man having received evidence has grounded his belief on it, pronounced a decision in conformity to such belief, and in the exercise of judicial power acted in conformity to such decision,—there exists on the part of men at large, failing special and predominant reasons to the contrary, a propensity to regard such belief as rightly bestowed; and to yield to this propensity also is right, and in general productive of beneficial consequences, as is also established by experience.
Ask what is the ground—the foundation—or more simply and distinctly, the efficient cause of the persuasion produced by evidence—produced by testimony? An answer that may be given without impropriety is—experience: experience, and nothing but experience.
Experience?—of what? Of the conformity of the facts which form the subjects of the several assertions of which testimony consists, with the assertions so made concerning these respective facts.
In the course of the ordinary and constant intercourse between man and man in private life, propositions* affirming or disaffirming the existence of this or that fact are continually uttered in a vast variety of forms. For the most part, as occasions of obtaining perceptions of and in relation to the facts in question present themselves, the perceptions thus obtained are found conformable to the description given by those assertions. Testimony being thus for the most part found true in past instances, hence the propensity to expect to find it true in any given future instance: hence, in a word, the disposition to belief.
On the other hand, in some instances, instead of such conformity, disconformity is the result presented by the surer guide, perception: hence the disposition to disbelief.
The number of the instances in which, to a degree sufficient for practice, this conformity is found to have place, is greatly superior to the number of the instances in which it is found to fail. Hence the cases of belief constitute the general rule—the ordinary state of a man’s mind; the cases of disbelief constitute so many cases of exception; and to produce disbelief requires some particular assignable consideration, operating in the character of a special cause.
The disposition or propensity to belief may, in this sense, be said to be stronger than the disposition, the propensity, to disbelief. Were the proposition reversed, the business of society could not be carried on—society itself could not have had existence; for the facts which fall under the perception of any given individual are in number but as a drop of water in the bucket, compared with those concerning the existence of which it is impossible for him to obtain any persuasion otherwise than from the reports, the assertions, made by other men.
But why, it may be asked, does experience produce a propensity to believe in the truth of human assertions?—why does experience of the truth of testimony in time past, give rise to an expectation that it will be true in time to come?
Next in point of utility to the knowing of a thing, is the knowing that it is impossible to be known. By the former acquisition, power, in various useful shapes, is acquired; by the latter, pain, in the shape of useless labour and frequently-recurring disappointment, is saved. The instances in which the former acquisition is attainable, are impressed upon the eye of curiosity by every object on which it alights. The other, as unacceptable as it is useful, is turned aside from, in many instances in which, upon a calm and attentive examination, it might be secured.
The relation of causality—the relation between cause and effect, is a soil in which the greatest understandings have toiled with great labour and no fruit: words, and nothing but words, having been the seed; words, and nothing but words, have been the produce.
Words being the names of things,—and, for some time, to judge from the structure of language, there having been no words but what were the names of real entities, of really existing things—as often as we take note of a distinct word, we are apt to assign to it, as an accompaniment of course, the existence of a distinct thing, a distinctly existing real entity, of which it is the accompaniment and the name; and this whether there be any such distinctly existing entity or not.*
Ask what is the foundation or cause of belief?—of persuasion? I answer, without difficulty, experience. Ask what is the foundation, the cause, of the belief in the truth of human testmony?—of the persuasion entertained by one man of the truth of the statements contained in the testimony of another, in any given instance? I answer again, the experience of the truth of testimony in former instances. Discard the substantive word cause, and give me, instead of it, the import of it in disguise—disguised under the adverbial covering of the word why;† and ask me why I find myself disposed, in most cases, to believe in the truth of the statements made in my hearing by my fellow-men? I answer,—because, in the greater part of the instances in which such statements have been made, the truth of them has been made known to me by experience. In the experience I have had of the truth of the like statements in past instances, I view the cause of the propensity I find in myself to believe the truth of the statement in question in the present instance—to pronounce, in my own mind, the sort of judgment indicated by the words I believe.
Press me further, and ask me why it is that, on recollection of the truth of such statements in former instances, as certified to me by experience, I believe?—ask me why it is that such experience produces belief; what is that ulterior and deeper or higher cause, that causes experience to be the cause of belief?—you ask me for that which is not mine, nor anybody’s, to give; you require of me what is impossible.
It may probably enough have appeared to you that what you have been doing, in putting to me that question, amounts to no more than the calling upon me for a proposition, to be delivered to you on my part. But the truth is, that, in calling upon me to that effect, you have yourself, though in an obscure and inexplicit way—you have yourself, whether you are aware of it or no, been delivering to me a proposition—and a proposition which, if my couception of the matter be correct, is not conformable to the truth of things. The proposition I mean is, that—over and above, and distinct from, those objects which you have in view, in speaking of the words experience and belief, of which the first represents the cause, and the other the effect,—there exists a distinct object, in the character of an ulterior and higher cause, which is the cause of the causative power exercised by that first-mentioned cause: such is the proposition which is comprehended and assumed in and by your interrogative proposition beginning with the word why; but, to my judgment of the matter, this indirectly-advanced proposition presents itself as erroneous. For, upon looking for such supposed distinct object, as the archetype of, and thing represented by, the word cause, as now, on the occasion of this second question, employed by you, it does not appear to me that any such object exists in nature. If ever it should happen to you to have discovered any such archetype, do me the favour to point it out to me, that I may look at it and examine it. Till you have done so, it will not be in my power to avoid considering as erroneous the proposition which you have been delivering to me in disguise.
What I have been able to see in the matter is as follows, viz.—
1. Certain facts, viz. of the physical kind (for such alone, to simplify the case, let us take)—the facts presented to me by experience.
2. Another fact, viz. of the psychological kind, the sort of internal feeling produced in my mind, and designated by the word belief. Both these are really existing objects, my feeling—my belief,—an object possessing at any rate whatever reality can be possessed by an object of the psychological kind,—and those physical objects, by which it seems to me that it has been produced, or at any rate in consequence of which it has made its appearance on my mind. The aggregate of all those physical facts is what, on this occasion. I look upon as the cause: the feeling produced in my mind—the belief—is what I look upon as the effect.
What higher, what deeper, what intermediate—in a word, what other cause, would you have? What can it be?—what should it be? If, which is possible, your request were to be complied with, what would you be the better for it? Would you be any the wiser for it, the richer? or even the more contented? Alas! no: no sooner had you got this higher cause, than you would be returning again to the charge, and asking for one still higher; and so on again, without end. For, by the same reason (if there were one) by which you were justified in calling upon me for this first arbitrarily assumed and phantastically created cause, you will be justified in calling upon me, and, indeed, bound to call upon me, for another; and so another and another, without end.
By pressing me still further—between the set of physical objects, the aggregate of which is spoken of as constituting the cause, and the psychological object (my belief) spoken of under the name of the effect,—you may, if you insist upon it, oblige me to interpolate a number—almost any number, of intermediate causes. But among these intermediate causes, be they multiplied ad infinitum, you will never find that recondite, that higher seated or deeper seated cause, which you are in quest of. From the material physical objects in question, came the appearances, evanescent or permanent, issuing from those material objects: from those appearances, presenting themselves through the medium of sense to the minds of the several percipient witnesses in question, came the feelings of the nature of belief, in the minds of those several witnesses: in the minds again of those witnesses, by the agency of this or that motive, were produced the exertions by which the discourses assertive of the existence of those several objects were conveyed to me: by those assertions, thus conveyed to my mind, was produced, on each occasion, in the interior of my mind, a correspondent feeling of belief: by the recollection, more or less distinct and particular, or rather by an extremely rapid and consequently indistinct and general recollection of the aggregate of those feelings, or rather of an extremely minute part of them (for in one extremely minute part is contained all that is possible, and yet quite as much as is sufficient) was produced the belief which my mind entertains at present, affirmative of the existence of the facts contained in the particular statement delivered to me by the particular individual whose testimony is now in question.
Such is the chain, the links of which may be multiplied almost to intinity. Between every two links you may call upon me, if you please, for the cause by which the latter of them is connected with the former; but, in each instance, the answer, for the reason already given, must be still the same—there is no such latent, recondite cause. In your imagination, the picture of it?—yes, if you say there is: in external nature, the original of it, nowhere.
Objections against the principle, that the cause of belief in testimony is experience, answered.
It is with rules of morality, and propositions in psychology, as with laws: when the indication of reasons, and these reasons grounded on experience, is regarded as unnecessary, any one man is as competent to the task of making them as any other; and, to the number and variety of them, all with equal pretension to the character of goodness, there is no end. To make good laws, requires nothing but power; to make good rules of morality, or good propositions in psychology, requires nothing but a combination of arrogance with weakness.
Thus it is, that as America—British-born America—swarms with books full of laws, Scotland swarms with books full of rules of morality, and propositions of psychology, mixed up together, and undistinguished, the propositions from the rules.
In morals, as in legislation, the principle of utility is that which holds up to view, as the only sources and tests of right and wrong, human suffering and enjoyment—pain and pleasure. It is by experience, and by that alone, that the tendency of human conduct, in all its modifications, to give birth to pain and pleasure, is brought to view, it is by reference to experience, and to that standard alone, that the tendency of any such modifications to produce more pleasure than pain, and consequently to be right—or more pain than pleasure, and consequently to be wrong—is made known and demonstrated. In this view of the matter, morality, as well as policy, is always matter of account. On each occasion, the task to be performed consists in collecting together the several items on both sides, and, in the instance of each item an estimate being formed of its value, regard being paid to the several elements of value,* to determine on which side—on that of pleasure or pain, of profit or loss, the difference is to be found; in a word, to strike the balance.
But to make up an account of this sort requires thought and talent: to apply the principle of common sense, or moral sense, or any other purely verbal principle, requires nothing but pen, ink, and paper. Hence it is, that as from the application made of these verbal principles—these pretences for governing and directing without reason, there can never be any fruit, so neither to the number of them need there ever be any end.
What the logic of the Aristotelian school was to physical science—that science to which for near 2000 years it officiated as a substitute—such are the sciences of morals and legislation as taught by the application of these verbal principles, to the same sciences as taught by applications made of the principle of utility, by reference, unceasing reference, to experience—experience of pain and pleasure.
In the school for Latin and Greek at Westminster, instruction in the art of making nonsense verses under that name, precedes the art of making such verses as pretend to sense. The Aristotelian logic, had it styled itself with equal candour, in its character of a substitute to experimental physics, might have styled itself nonsense physics: and, in like manner, and with equal justice, the ethics which consist in the application of the principle of moral sense, that is, in the repetition of the words moral sense, nonsense ethics: and the psychology, which points to an innate propensity as the efficient cause of persuasion, independently of, and in opposition to, experience of human correctness and incorrectness—nonsense psychology.
A curious spectacle enough would be, but rather more curious than instructive, to see a partisan of moral sense in dispute with a partisan of common sense, or two partisans of either of these verbal principles in dispute with one another. Let the common sense of one of them command what the moral sense of another leaves indifferent, or forbids; or let the common sense of one of them forbid what the moral sense of another leaves indifferent, or commands; or let the like conflict have place between two philosophers of the common sense, or two partisans of the moral sense. When each of them has delivered the response of his oracle according to the interpretation put upon it by itself, all argument should, if consistency were regarded, be at an end; as, at a Lincoln’s-Inn exercise, where one of the pleaders has declared himself for the widow, and the other against her, the debate finishes.
In such a case, when a disagreement happens to take place (for when men talk thus at random, it can but happen to them to disagree,) if to either of them it appears in his power, and worth his while, to gain the advantage, he betakes himself for support to the only principle from which any support is to be had—to the principle of utility. But, as often as he betakes himself for support to a quarter so widely distant, so often does he desert, and by implication, by necessary implication, acknowledge the inanity of, his own principle. For if, by pronouncing the words moral sense, a man can learn what is right, what indifferent, and what wrong, in any one case, why not in every other? And if the tendency of an action to produce most pleasure or most pain be the criterion and measure of its claim to be pronounced right, indifferent, or wrong, in any one case,—in what other can it fail of being so?
But the course which hitherto men have followed, in undertaking to philosophize, to learn and to teach the science of legislation, ethics, or psychology, is this:—In the first place, under the joint direction of custom, that is, of prejudice—of interest, under whatever shape—and of unreflecting and unscrutinizing caprice,—a man makes out his list of favourite tenets. These tenets he determines to adhere to and advocate at all events: and, this determination formed, all that remains for him to devise is the form of words which, under the name of a principle, presents itself as best adapted to such his purpose.
The conclusion is,—there are two distinguishable branches of philosophy, which, as they have been taught upon the ipse dixit principle, confer on the science a claim above dispute to the title of the philosophy of nonsense.
1. Nonsense ethics.—This is the science taught by him, by whom an alleged propensity, on his own part or on the part of any other person or persons in any number, to approve of any sort of act, is represented as imposing on persons in general an obligation, or bestowing on them a warrant, to approve of it, and to exercise it; and, vice versâ, a propensity to disapprove of it, as imposing on persons in general an obligation to abstain from it, or conferring on them a licence to forbear exercising it; and this without regard to the effects of it upon the aggregate welfare of the community in question, in the shape of pain and pleasure.
2. Nonsense pisteutics.† —This is the sort of science taught by him, by whom an alleged propensity, on his own part or on the part of any other person or persons, to give credit to testimony (or say assertion or report) concerning any supposed fact or class of facts, is represented as imposing on the will of persons in general an obligation, or affording to their understanding a sufficient reason, to entertain a persuasion of the existence of such fact or class of facts; and this without regard to the probability or improbability of such fact or facts, as indicated by experience.
To an act of judgment, having for its subject the existence of a supposed matter of fact asserted in the way of testimony, substitute a judgment on any other subject without distinction; and nonsense pisteutics, receiving a proportional increase in the field of its dominion, becomes nonsense dogmatics.
So long and so far as science is taught upon this principle—if, where there is nothing to be learnt, the word teaching can be regarded as applicable,—the greater the number of books of which it becomes the subject, so much the further are the readers, (supposing the number of the readers, and their expense in the article of attention, to increase with the number of the books,) from making any advances in true knowledge.*
When, by a consideration of any kind, a man is determined to maintain a proposition of any kind, and finds it not tenable on the ground of reason and experience,—to conceal his distress, he has recourse to some phrase, in and by which the truth of the proposition is, somehow or other, assumed.
Thus, in the moral department of science: having a set of obligations which they were determined to impose upon mankind, or such part of it at any rate as they should succeed in engaging by any means to submit to the yoke,—phrases, in no small variety and abundance, have been invented by various persons, for the purpose of giving force to their respective wills, and thus performing for their accommodation the functions of a law:—law of nations, moral sense, common sense, understanding, rule of right, fitness of things, law of reason, right reason, natural justice, natural equity, good order, truth, will of God, repugnancy to nature.
A similar exhibition of scarcely disguised ipse-dixitism has been made in the field of pisteutics, as in that of ethics.
Improbability—the improbability of the fact in question as related by the witness, is a species of counter-evidence, operating against this testimony—a species of counter-evidence, of the nature of circumstantial evidence: and so, whatsoever be the number of the witnesses.
Of the two opposite results, which is the most probable? That the fact in question, improbable as it appears, should notwithstanding be true? or that the testimony of the witness in question should, by some circumstance or other, have been rendered incorrect in respect of the report made concerning it?
No: it has been said. There are certain cases in which the improbability of a fact—improbability though in ever so high a degree—ought not to be considered as acting with a disprobative force great enough to outweigh the probative force of a mass of direct testimony, affirming the existence of it. Why? Because the allegation, by which a fact is said to be improbable, can have no other basis than human experience: but the probative force of direct testimony, let the fact asserted by it be what it may, rests upon a foundation anterior to, and more solid than, that of experience; viz. an innate propensity in human nature—a propensity on the part of a man to give credit to what he hears affirmed by others—a propensity which, commencing at the very moment of his birth, renders itself manifest in the very earliest infancy, as soon as any propensity has time to manifest itself–at a period antecedent, if not to all experience, at any rate to all experience of conformity between facts reported, and the testimony by which they are reported.
The debility of this argument is sufficient of itself to betray the occasion on which, and the cause in support of which, it was invented. The occasion was of the number of those in which belief, or the assertion of belief, being predetermined by considerations operating not on the understanding but on the will—by good and evil, by reward and punishment, by hope and fear; what remained was to find arguments to justify it—arguments which, the more obscure and irrelevant they were, would be but the more difficult to be refuted. Whether the cause had really any need of such arguments, is an inquiry that belongs not to the present purpose.
Innate ideas, the principle so fully exploded by Locke, constituted the medium of proof employed in his time, for the proof of whatsoever proposition was determined to be proved, and could not, as supposed, be proved by any other means.
To innate ideas, the doctrine here in question substitutes—if it be not rather an exemplification than a substitution—an innate propensity.
But, admitting the propensity, what is the use thus made of it? To prove the truth of the following proposition,—viz. that whatever is said, probable or improbable, is, by being said, if not rendered, at least proved, to be true?
All the extravagances—all the false conceptions that ever have been entertained, may by this argument be proved to be true; for there is not any of them but is the result of this propensity to believe what is said by others—this propensity, so strangely supposed to be antecedent to experience; as if anything subsequent to the moment of birth could be antecedent to experience.
Two propositions are here implied—two propositions, of each of which the absurdity strikes the mind upon the first mention:—1. That a disposition to believe testimony has an efficient cause other than experience;—2. That if it had, it would afford an adequate reason for believing in opposition to experience.
But it is in children (it is said) that the reliance on testimony is strongest—strongest in man at that time of life when he has had least experience. Such is the argument, on the strength of which it is concluded that man’s reliance on man’s testimony has not experience for its ground—experience of the conformity of that testimony to the truth of things; but is produced by an independent innate principle, made on purpose, and acting before experience. Before any experience has taken place, this confidence is at its maximum: as man advances in life, it grows weaker and weaker; and the cause that renders it so, is experience.
A child’s reliance on testimony, on the truth of human assertion, antecedent to experience! As if assertions, and experience of the truth of them, were not coeval in his perceptions with the very first instances of the use of language!
Banish the phantom, the offspring of distressed imposture, the innate principle; consult experience, man’s faithful and steady guide; and behold on how simple a ground the case stands. In children, at an early age, the reliance on assertion is strongest: why?—Because at that age experience is all, or almost all, on one side. As age advances, that reliance grows weaker and weaker: why?—Because experience is acquired on both sides—experience certifying the existence of falsehood as well as that of truth. The proportion of falsehood to truth commonly itself augments; and, though it should not itself augment, that which cannot fail to augment, and of which the augmentation answer the same purpose, is the habit, the occasion, and the facility of observing it.
But if a ferry-boat (says an argument in the same strain)—if a ferry-boat, that had crossed the river 2000 times without sinking, should, by a single supposed eye-witness, whose character was altogether unknown, be reported to have sunk the two thousand and first time: here is a highly improbable event, improbable in the ratio of 2000 to 1, believed upon the testimony of this unknown, and single witness;—believed, and who will say, not rightly and rationally believed?
An improbability of 2000 to 1? No, nor of 1 to 1. Yes, perhaps,—if a ferry-boat, being a thing unlike everything else in nature—or a ferry-boat, and everything else partaking in respect of submergibility of the nature of a ferry-boat—had been known to cross water 2000 times, and never known once to sink. But the aptitude of things in abundance—the aptitude of the materials of which ferry-boats are composed, to sink in water, when pressed by other bodies lying in them, is a fact composed of an immense mass of facts made known by an immense body of experience. Boats of almost all kinds, it is sufficiently known by experience, are but too apt to sink: which thing being considered,—of all those who have seen or heard of a ferry-boat, is there a single person to whom, though the same boat should be known to have crossed the water in question 10,000 times instead of 2000, the report of its having sunk should present itself as in any degree improbable?
Yes: if a boat, composed solely of cork, and that of the same shape with the ferry-boat in question, except as to the being solid instead of being hollow—if a boat of such description were reported to have sunk, and without anything drawing it down, or pressing upon it,—here, indeed, would be an improbability, and such an improbability, as, to the mind of a man conversant with the phenomena and principles of hydrostatics, would not be rendered probable or credible by the report of a thousand witnesses, though they were all of them self-pretended eye-witnesses.
Experience is the foundation of all our knowledge, and of all our reasoning—the sole guide of our conduct, the sole basis of our security.
Of the argument now under consideration, the object is to persuade us to reject the counsel of experience: to credit, on no better ground than because this or that person or persons have asserted it, a fact, the superior incredibility of which is attested by experience. This is, in other words, to throw off the character of rational beings, and in cold blood to resolve to act the part of madmen.
It is by experience we are taught, that in by far the greater number of instances individually taken, the testimony of mankind—the assertions made by human creatures—are either true, or, if in any respect false, clear of all imputation as well of temerity as of wilfulness. It is by the same experience we are taught, that in a part of the whole number of instances, these assertions are not only false, but tainted with one or other of those two vices; and that, even so far as concerns wilful falsehood, or, in one word, mendacity—though, comparatively speaking, relation being had to the aggregate mass of human assertions, the instances of mendacity are numerically small,—yet so vast is that aggregate, that, absolutely taken, the same number in itself is immense.
It is by experience we are taught, that, as in the case of every other modification of human conduct, so in the case of assertion (and all discourse, interrogation not excepted, is in one shape or other assertion,) no action is ever performed without a motive: no act of mendacity is therefore without a motive. But a proposition that will be made good as we advance, is, that as there is no modification of interest, no species of motive, by which mendacity is not capable of being produced, so there is no occasion on which there can be any certain ground of assurance that the assertion uttered is not mendacious: no human being, in whose instance there can be any certain ground of assurance that his assertion is altogether untainted by that vice.
The proposition—all men speak always true,—is therefore a proposition which itself is not true, but with an innumerable and continually accumulating multitude of exceptions. But in regard to facts of the physical class, there are facts in abundance, which are true without a single exception. Take for instance, that iron is heavier than water. Accordingly, it is not by the testimony of a thousand witnesses, that to a well-informed mind it could be rendered in a preponderant degree probable, that in any one single instance a mass of iron had been found less heavy than an equal bulk of water. Supposing a fact of this kind thus asserted, and supposing what could never be proved, that in the instance of any number of the witnesses the assertion was altogether pure of mendacity,—the conclusion would be either that that which was taken for iron was not iron, but some other substance—wood, for example, with the appearance of iron superinduced upon it; or that that which was taken for water was not water, but some other liquid—mercury for example, with a coat of water lying upon it; or that that which was taken for a solid mass of iron, i. e. for iron only, was a hollow mass of iron, i. e. a mass of air, or a void space, inclosed in a cover of that metal.
“The improbability of a fact affords no reason—no sufficient reason, for refusing to believe it, if attested by witnesses—by witnesses whose character is not exposed to any special cause of suspicion.” Such is the notion which has been endeavoured to be inculcated. But to accede to any such doctrine—to suppose that there can be any imaginable case in which it can be just—is to give up, and to call upon all others to give up, the use of human reason altogether, on every question of evidence; which is as much as to say, on every question of fact.
In the same strain, the only language with which it is possible to reason upon the subject shall be protested against, and denounced as figurative, improper, and unsuited to the subject: in the same strain, and with perfect consistency. The end in view is, by dint of ipse dixit, with obscure terrors at the back of it, to engage men to believe, with the utmost force of persuasion, certain supposed facts, which some men have asserted, or have been supposed to assert, in whatsoever degree improbable. But, to this design all consideration of improbability being hostile,—all language in which improbability and its degrees are brought to view, and made the subject of description, will of course be equally so.
When reason is against a man, a man will be against reason. In this he is consistent: as consistent as he is the contrary, when reason, or something that calls itself reason, is employed in proving, that on such or such a subject, reason is a blind guide, and that to be directed by her is unreasonable.
When a man is seen thus occupied, sapping the foundations of human reason, and with them the foundations of human society, and of human security in all its shapes, how shall we account for such preposterous industry? Before him lay a parcel of facts, which, be they what they may to other eyes, to his, at any rate, seemed improbable. Improbable as they were, a determination had been taken that they were to be believed at any rate. Readers were to be persuaded to believe them, and to consider him as believing them likewise; and thus the argument was to be constructed: “There is an innate propensity in every human being to believe whatever is said by any other: to believe probable things; to believe, moreover, improbable things. That the propensity is innate, is evident; for it manifests itself in each human being, at a period antecedent to the commencement of his experience: of his experience (to wit) of the agreement of facts with the reports made by men concerning them. It manifests itself with peculiar strength in children: with the greater degree of strength, the younger they are: with the greatest degree of strength, in those who have least experience. But, forasmuch as this propensity exists on all occasions, therefore man ought to yield to it on all occasions.”
Good; when the propensity exists; admitting always, that whatsoever propensity exists in a man, it is good for him to yield to. But in the instance of a man in whom it does not exist, what argument does it afford? Is one man obliged to believe, or is it reasonable for him to believe, a thing, and that an improbable thing, only because another man has a propensity to believe it? Are men obliged to believe—is it reasonable for them to believe—improbable things, because children do?
Being then good as a reason for believing, apply this innate propensity to action. Correspondent to the believing of improbable things, is the doing of foolish ones: what the one is in theory, the other is in practice. Foolish belief, if there be any such thing, what is it? It is neither more nor less than the belief of improbable things. A has a propensity to do foolish things; therefore it is incumbent on, and reasonable for, B to do foolish things: children are apt to do foolish things; therefore, so ought men.
NOTE BY THE AUTHOR.
Dr. Price, to whose honest, but rather unfortunately successful, mathematical labours, England is indebted for the sinking fund system, gives us in one of his essays, a mathematical demonstration of the probability of improbabilities. Imagine a lottery, says he, with a million of blanks to a prize: take No. 1, No. 1,000,001, or any intermediate number: and suppose yourself to hear of its gaining the prize: would you find any difficulty in believing it? No, surely: yet here is an improbability of a million to one; and yet you believe it without difficulty. If this ratio does not import sufficient improbability, instead of millions take billions; or, instead of billions, trillions, and so on.
Well then, since we must stop somewhere, we will stop at a trillion. This being the nominal ratio, what is the consequence? Answer: That the real ratio is that of 1 to 1. One little circumstance of the case had escaped the observation of the mathematical divine. Of the trillion and one, that some one ticket should gain the prize, is matter of necessity: and of them all, every one has exactly as good a chance as every other. Mathematicians, it has been observed (so fond are they of making display of the hard-earned skill acquired by them in the management of their instrument) are apt not to be so scrupulous as might be wished in the examination of the correctness and completeness of the data which they assume, and on which they operate.
A book on ship-building will be filled with letters from the close, and letters from the beginning and middle, of the alphabet; and a ship built upon the plan proved by it to give the maximum of velocity, shall not sail perhaps so quick as one built by a carpenter, whose mathematics had terminated at the rule of three. Why? Because, of the dozen or half dozen influencing circumstances, on the conjunct operation of which the rate of sailing depends, some one had unfortunately escaped the attention of the man of science.
Halley, whose deficiency in Christian faith was not much less notorious than his proficiency in astronomy and mathematics, thought he had given a deathblow to revealed religion, when he had published in the Philosophical Transactions a paper with x’s and y’s, showing the time at which the probative force of all testimony would be reduced to an evanescent quantity. Yes, if testimony had no other shape to exhibit itself in than the oral. But, not to speak of the Shasters and the Koran,—the Bible, against which the attack was levelled, comes to us in the written form: and whatever may be the difference in point of extent, as measured by numbers, between the judgment that will be passed on it ten thousand years hence, and the judgment passed on it at present, it will not be easy to say on what account its title to credence should by that length of time, or any greater length of time, be considered as diminished.
FARTHER NOTE BY THE EDITOR.
When Dr. Price affirms that we continually believe, on the slightest possible evidence, things in the highest degree improbable, he confounds two ideas which are totally distinct from one another, and would be seen to be such, did they not unfortunately happen to be called by the same name: these are, improbability in the ordinary sense, and mathematical improbability. In the latter of these senses there is scarcely any event which is not improbable: in the former, the only improbable events are extraordinary ones.
In the language of common life, an improbable event means an event which is disconformable to the ordinary course of nature.* This kind of improbability constitutes a valid reason for disbelief; because, universal experience having established that the course of nature is uniform, the more widely an alleged event differs from the ordinary course of nature, the smaller is the probability of its being true.
In the language of mathematics, the word improbability has a totally different meaning. In the mathematical sense of the word, every event is improbable, of the happening of which it might have been said a priori that the odds were against it. In this sense, almost all events which ever happen are improbable: not only those events which are disconformable, but even those events which are in the highest degree conformable, to the course, and even to the most ordinary course, of nature. “A corn merchant goes into a granary, and takes up a handful of grains as a sample: there are millions of grains in the granary, which had an equal chance of being taken up. According to Dr. Price, events which happen daily, and in every corner, are extraordinary, and highly improbable. The chances were infinitely great against my placing my foot, when I rise from my chair, on the precise spot where I have placed it; going on, in this manner, from one example to another, nothing can happen that is not infinitely improbable.” Travé des Preuves Judiciaires,—translation, p. 282.
True it is, in all these cases (as well as in that of the lottery, supposed by Dr. Price) there is what would be called, in the language of the doctrine of chances, an improbability, in the ratio of as many as you please to one: yet it would obviously be absurd to make this a reason for refusing our belief to the alleged event. And why? Because, though it is in one sense an improbable event, it is not an extraordinary event; there is not in the case so much as a shadow of disconformity even to the most ordinary course of nature. Mathematically improbable events happen every moment: experience affords us no reason for refusing our belief to them. Extraordinary events happen rarely: and as respects them, consequently, experience does afford a valid reason for doubt, or for disbelief. The only question in any such case is, which of two things would be most disconformable to the ordinary course of nature: that the event in question should have happened; or that the witnesses by whom its occurrence is affirmed, should have been deceivers or deceived.
MODES OF INCORRECTNESS IN TESTIMONY.
An analytic sketch of the different shapes in which falsehood is wont to show itself, will not be altogether without its use: its particular uses in practice will be pointed out presently.
The modifications of falsehood may be deduced, either from the consideration of the part taken by the will in relation to it, or from the consideration of the facts which are the subject-matter of the picture thus deviating from the line of truth. Those which result from the former topic will be brought to view in the next chapter. There remain those which respect the nature of the fact in question, or the form of the assertion of which it is the subject.
Cause, homicide. Titius is under examination. Question: What do you know about this business? Answer: 1. Reus struck Defunctus; 2. Reus did not strike Defunctus; 3. I know not whether Reus struck Defunctus or no. Any one of these answers, it is evident, is as susceptible of falsehood as another. In the two first cases, the falsehood consists in false assertion—affirmative in one case, negative in the other; in the third case, it consists in allegation of ignorance.
1. Falsehood, in the way of positive or affirmative assertion; 2. Falsehood, in the way of negative assertion; 3. Falsehood, by alleged ignorance.
Falsehood by allegation of ignorance, it is evident, is altogether as susceptible of mendacity, as falsehood in the way of assertion; and whenever mendacity is an object meet for punishment, it is as much so in this shape as in the other. Unfortunately, it is not so open to disproof as the other. Why? Because, in this case, the fact which is the subject of the false testimony has nothing physical in it—is purely of the psychological kind. Were it exempt from punishment, there would be no witnesses but those who are called willing ones. The condition of a delinquent, whatever were the crime, would be subject altogether to the good pleasure of the individuals whose testimony was requisite to ground a decision on that side: to afford him impunity, to grant him a virtual pardon and protection, nothing more would be needful on their part than to say, I know nothing, or I remember nothing, about the matter.
To protect a witness (his testimony being necessary to conviction) to protect him against cross-examination when uttering a falsehood of this sort, is to hold out impunity to the whole catalogue of crimes. On a memorable and never-to-be-forgotten occasion, English judges, all with one voice and hand, scrupled not to aim this mortal stab at penal justice.* Impunity to a crime of the deepest die—a plot for the assassination of the sovereign—has been among the fruits of it in practice.† Since that time, judges have slunk in silence from the precedent.‡ But the decision remaining unreversed, and, but for legislative authority, unreversable, the consequence of the departure is not the restoration of justice, but, on each future occasion, justice or impuinty at the option of the judge.
Question: About what thickness was the stick with which you saw Reus strike his wife Defuncta? Answer: About the thickness of a man’s little finger. In truth, it was about the thickness of a man’s wrist. Falsehood in this shape may be termed falsehood in quantity.
Question: With what food did the jailor Reus feed the prisoner Defunctus? Answer. With sea-biscuit, in an ordinarily eatable state. In truth, the biscuit was rotten and mouldy in great part. Falsehood in this shape may may be termed falsehood in quality.
Under what tree was the act committed? said Daniel to each of the Elders, separately. Under a mastic tree, said the one: under a holme tree, said the other. In truth, not being committed at all, it was not committed under any tree. Falsehood in this shape may be termed falsehood in circumstance.
The distinction between fact and circumstance, it should here be noted, is extremely apt to be obscure and indeterminate. It supposes the individualization of each fact—the boundary line which divides that from all other facts—to be clear and determinate; whereas, nothing is more apt to be indeterminate. It supposes the distinction between fact and circumstance to be clear and uniform; but nothing is more variable. The term circumstance is but relative: a circumstance is itself a fact, any one of a number of facts considered as standing round the principal fact.
The falsehood that respectively accompanied the above-mentioned assertions,—Reus struck Defunctus—Reus did not strike Defunctus—presents itself in a shape different from any of the above three: it went to the act, and did not confine itself to quantity, quality, or circumstance. It may be termed falsehood in toto.*
Falsehood in quantity and in quality, is that sort of falsehood which is most apt, and indeed almost exclusively apt, to be produced by bias. Whether produced by bias or by mendacity, it is in general peculiarly difficult to disprove: it is accordingly in this quarter. so far asconcerns physical facts, that mendacity finds its surest refuge.
It is, however, hable enough to be disproved where the fact in question is of a nature to afford real evidence, and that of the permanent kind: it, for example, the stick, or the unwholesome food, having been impounded and preserved, come to be produced in court. But if the thing, the condition of which was the subject of the falsehood, be not forth coming—whether from its nature (for example wind or running water,) or by accident—this means of detection fails. The size of the stick is not out of the reach of subsequent measurement: the force with which the blow was given, is; except in so far as it may be guessed at from the appearance of the wound or bruise.
The practical use of these distinctions is this:—In the case where the falsehood is only in quantity or quality, the aberration of the evidence from the truth may be accompanied, or not, with that consciousness which gives it the denomination of wilful in ordinary language: in the case where the evidence is false in toto, the falsehood cannot but have been accompanied with that culpable consciousness—it cannot have been otherwise than wilful, unless it have risen from that sort of disorder in the imagination, which may be set down to the account of insanity while it lasts.
Of evidence false in toto, the sort of evidence so unhappily frequent in penal causes, and so familiar accordingly in legal language, under the name of alibi evidence, may serve as an example. The defendant is accused or having killed a man with a hedge-stake, at a certain place and time: a witness is produced, who says, I am well acquainted with him; he was conversing with me at another place, considerably distant (naming it,) in a small room, exactly at that time. The evidence may be true or false; but what is certain is, that, if it be false, the falsehood cannot be otherwise than wilful, barring the possibility that one man may have been taken for another. A man cannot be at two distant places at the same time; and, with the exception just stated, a man cannot, in the compass of a small room, really conceive himself to have been seeing and holding converse with another man, who, in fact, was never there.
What was the size of the stake, the degree of force with which the blow was given?—did the deceased, on his part, aim a blow at the defendant, or merely endeavour to ward off the defendant’s blow?—all these are so many circumstances, in respect of which the mendacious conciousness may or may not be present, although the testimony were more or less unconformable to the exact truth of the case—in a word, were false.
Falsehood in toto, and falsehood in circumstance, will be found, accordingly, to differ, in a number of points of very essential importance in practice.
1. Falsehood in toto is, in a decidedly preeminent degree, exposed to detection and disproof: in the case of falsehood in circumstance, in quantity, or quality, the facility, and even possibility of detection, will depend upon the degree of aberration from the truth.
2. In the case of falsehood in toto, the aberration, as already observed, cannot but be accompanied with mendacious consciousness: falsehood in quantity, quality, or other circumstance, may be produced by bias, by the influence of motives on the affections, without being accompanied by any such consciousness.†
3. Falsehood in toto is accordingly that species of falsehood of which a man is in general convicted, when he is convicted of perjury. Perjury, in respect of quantity, quality, or other circumstance, may have been committed a hundred times, without the possibility of a single conviction upon sufficient grounds.
Question to Reus: What was your intention in striking Defunctus? Answer: To disable him, so as to put it out of his power to hurt me. In truth, it was to deprive him of life. Question: By what motive were you instigated to strike Defunctus? Answer: By self-preservation; the desire to save my life. In truth, it was enmity: his own life was in no danger. In both these cases, the subject-matter of the falsehood, it is manifest was a psychological fact: in the preceding cases, it was a physical fact.
Psychological facts, it is evident, present a more inviting held to mendacity than is commonly presented by physical facts. But this does not hinder the application of punishment, as for mendacity, to falsehood in the one shape, any more than in the other. If it did,—in this case, as in the preceding one, impunity would be secured to many a crime. Not but that, as already observed, psychological facts are much more satisfactorily proved by circumstantial than by direct evidence. In the way of direct evidence, a fact of this class cannot be proved by any person but the one person whose mental faculties are the seat of it.
The field of motives is an open and ample field for the exercise not of mendacity only, but of bias. The tendency of bias is to attribute the greatest share, or rather the whole agency, in the production of the act, to a particular motive; to the exclusion of, or in preference to, whatever others may have concurred in the production of it. Few indeed that are able, scarce any that are willing, to give, on every occasion, a correct account of the state of the psychological force by which their conduct has been produced.
Ask Reus for his own motives,—they are the most laudable, or, in default of laudable, the most justifiable, or at least excusable, of any that can be found. Ask a friend of Reus for the motives of Reus,—the answer is the same. Ask Actor for the motives of Reus,—the same gradation, the order only reversed. Ask Reus for the motive which gave birth to the prosecution on the part of Actor,—the motive of course is the most odious that can be found: desire of gain, if it be a case which opens a door to gain; if not, enmity, though not under that neutral and unimpassioned, but under the name of revenge or malice, or some other such dyslogistic* name. Ask a friend of Reus, or an enemy of Actor,—the answer is the same. Ask an enemy of Reus, or a friend of Actor,—his motive was public spirit, the purest public spirit.
Ask an English lawyer,—his answer will also be, public spirit: or it, under the name of revenge or malice, he concludes enmity to have had its share, he requires, in many cases, no other ground for dismissing the prosecution: such is the simplicity of English lawyers, so profound their ignorance of the causes and effects of human actions, and of the difference between the cases in which the nature of the motive is material and discoverable, and those in which it is irrelevant and inscrutable.
Put the same question to a man to whom the springs of action are known, and the mechanism of the human mind familiar,—he will scorn to pretend to know what is not capable of being known. He will answer,—desire of gain, enmity, public spirit;—these motives (not to speak of casual ones) any one exclusively, any or all conjunctively, and in any one of the whole assemblage of imaginable proportions—the proportions never the same for two days or two hours together, nor understood, or so much as inquired into, by the individual himself.
On this part of the ground of the evidence, a work replete with instruction would be a collection of cases of prosecutions for perjury; the cases ranged under heads expressive of the shape in which the falsehood presented itself, as above. The mischief is obvious and indisputable, if there were any shape in which it could give itself a promise of impunity complete and sure. At first, the prosecutions, it seems natural to suppose, confined themselves to some of the grosser shapes. As human intelligence advances,—in this as in other lines, the field of punishment will naturally approach nearer and nearer to a complete coincidence with the field of crime.
Hitherto I should expect to find falsehood in toto a much more frequent subject for a prosecution of this kind, than falsehood either in quantity or in quality.
When the word falsehood is mentioned, the modifications that will be by far the most apt to present themselves, are those ordinary ones which have been already mentioned; viz. those in which the vehicle used for the conveyance of it, is ordinary language, and in which falsehood, if tinctured with mendacity, and uttered under the sanction of an oath, is understood to come under the denomination of perjury.
But language, verbal discourse, though the most common and convenient vehicle for the conveyance of ideas, is not the only one. Accordingly, under the head of circumstantial evidence, it becomes necessary to add deportment, as a necessary supplement to language.*
To this head belong the following modifications of falsehood, some of which have been already mentioned:—
1. Graphical forgery.—Forgery in relation to written documents: the species of forgery most commonly understood under that name.
2. Monetary forgery.—Forgery in relation to the current coin.
3. Forgery in relation to evidentiary marks of ownership; ex. gr. landmarks: the owner’s name upon his linen, or other goods.
4. Forgery in relation to evidentiary marks of authorship: ex. gr. the marks of a manufacturer or vender, upon goods made or sold by him.
5. Forgery of real evidence at large: in particular, forgery in relation to the traces of delinquency, under its several modifications.
The Romanists, and after them the English lawyers, in some instances, have ranked under the common generical appellation of the crimen falsi, forgery (at least in some of the above instances) as well as perjury: falsehood in this quasi-colloquial shape, as well as in the shape of ordinary discourse. Of mendacity, except where, by the sanction of an oath, it has been made to receive the denomination of perjury, it has not been common to take notice, either under that or any other name.
GENERAL VIEW OF THE PSYCHOLOGICAL CAUSES OF CORRECTNESS AND COMPLETENESS, WITH THEIR CONTRARIES, INCORRECTNESS AND INCOMPLETENESS, IN TESTIMONY.
In a tolerably sufficient degree for the various purposes of life,—private and public, domestic, commercial, scientific, political, judicial,—is human testimony in general found conformable to the truth of things. At the same time, in instances but too numerous, it fails of being so. The conformity has its causes: the disconformity has its causes likewise. In a work on evidence, all these causes have a claim to notice. Where mischief, as it is but too apt to be, is the result of such disconformity,—deception, false judgment, is the name either of the mischief itself, or of the proximate cause of it. And for the prevention of this mischief there is no other course so sure as that which includes the endeavour to avert it, by removing or counteracting the operation of its causes.
The inquiry into the causes of trustworthiness and untrustworthiness in evidence, will probably, without much difficulty, be acknowledged to be an interesting pursuit: interesting not merely as a field of speculation, but with a view to practice.
But when the mode of applying to practice whatever information may be obtainable, comes upon the carpet, opinions will not, at first view at least, be alike uniform.
The practical uses, and the only uses, which present themselves to my view as proper to be made of it, are as follow:—
1. To put the legislator and the judge as fully as possible upon their guard against the causes of untrustworthiness.
2. To show how far and in what instances they are without, and how far within, the reach of remedy.
3. In so far as they are within the reach of remedy, to point out, under the name of the causes of trustworthiness, what are the proper remedies, and in what way they may be employed to the best possible advantage: in such manner as to leave to the causes of untrustworthiness as little influence as possible.
To the above operations, which are but endeavours, the practice of men of law, of judges and legislators, has not been content to confine itself: it has taken a line of conduct presenting the idea of greater efficacy; viz. the excluding from the function of a witness every individual in whose character or situation any mark or symptom of untrustworthiness has presented itself.
The light in which the subject has presented itself to my view, has compelled me to conclude that the idea of exclusion is altogether without foundation in reason and utility: that, though it be employed by lawyers in all nations, no nations, in this respect, are consistent with one another, nor any one consistent with itself: that the practice is not reasonable in any single instance: that it is mischievous in the exact degree in which it is extensive: that, if in any nation it had been consistently pursued, which however is impossible, it would long ago have given a complete impunity to every imaginable crime, and cut up society by the roots: that, in the minds of its authors, it has its seat,—as far as regards their intellects,—not in any comprehensive, but in a wonderfully narrow conception of the springs of action, and the mechanism of the mind:—as far as regards their will,—not in attention and anxiety, as might be supposed, but in indolence, negligence, and indifference.
Nevertheless, as a system of law in which this supposed remedy has not been adopted, and to a greater or less extent employed, is perhaps nowhere to be found—as the body of prejudice to be put down is thus colossal—it cannot but be perceived that he who undertakes to overthrow it, cannot make his ground too sure.
For this purpose, and because the practice of exclusion has no better nor other cause than the observation that, in each instance, the testimony of the witness is exposed to the influence of some motive, acting upon him in a sinister direction, and soliciting him to deviate from the path of truth,—it will be necessary to take a complete survey of the whole catalogue of motives, to the action of which the will of man is exposed. It will thence be seen, that for the same reason for which, in the character of a witness, any one class of persons ought to be excluded, so ought every other: and that, in the character of a preservative against mendacity, a consistent system of exclusion would be no wiser a remedy, than an universal deluge, and without an ark, would be against any other vice.
By the same survey by which the unreasonableness of exclusion is thus indicated, the reasonableness of suspicion will all along be brought to view: and if in this way it be seen to fulfil the double purpose of affording wholesome instruction, and guarding against pernicious error, the labour of travelling through it need the less be grudged.
The application of the lights thus collected, to the subject of exclusion, will be the business of a separate book. In the present book, lest the theoretical survey should in any of its points be suspected of being without use in practice, it seemed necessary to show that the practical question, as between exclusion and non-exclusion, is the chief mark which it had in view; and that the solution of that question was the chief of the objects to which it owed its birth.
To begin, then. The conformity or disconformity of the testimony of a witness to the truth of things, to the real state of the facts which constitute the subject-matter of his report, depends upon the state of his mental faculties; viz. partly upon the state of the intellectual, partly upon the state of the moral or volitional, department of his mind.
Incorrectness and incompleteness in testimony have received different names, according as they are supposed to arise from causes the seat of which is in the intellect, or from causes the seat of which is in the will.
By the supposition, the picture is in some respect or other disconformable to the original. Is the witness completely unconscious of the disconformity? the cause of it is to be found in his intellectual faculties merely: his will has no share in the production of it: the falsehood was not on his part a wilful one. Is he conscious of the disconformity? the cause of it is to be found in the state of his volitional faculty.
But for an act of his will, that picture which his understanding had represented to him as false, would not have been exhibited by him as true. The falsehood is therefore, in this respect properly, as in ordinary discourse it is familiarily, spoken of as a wilful one.
In this latter case, and this alone, the falsehood in the language of Roman law is said to be accompanied with dolus; i. e. deceit, or at any rate the intention to produce deception—to deceive: with dolus; as also with mala fides; an inexpressive term, the import of which has been placed out of doubt by use, but of which the connexion with its import, and with its synonyme, as above, would not be very easy to make out.*
Dolus remains peculiar to the Romanists: mala fides, not to speak of its negative bona fides, has been borrowed from them, and been adopted by English lawyers. Of both of them the use has been extended, from crimes of falsehood, to all other crimes; from delinquency by false testimony, to delinquency in every other mode.
The intellectal faculties concerned in testimony may be comprised under four heads: perception, judgment, memory, expression; under the latter being included, the use of the corporeal faculties in respect of the sensible signs, audible or visible, by means of which the expression is performed.
When, with reference to the matter of fact which is or ought to be the subject of report, these four faculties are all of them in a sound and perfect state, free from infirmity,—correctness and completeness on the part of the testimony, so far as depends upon the state of the intellectual compartment of the deponent’s mind, are the result: when in any one of them infirmity or deficiency has place, incorrectness or incompleteness on the part of the testimony is liable to be the consequence: nor, so far as depends upon the state of the intellectual part of the witness’s frame, can these defects in his testimony be referable, either of them, to any other cause.
To present a more particular view of the ways in which an infirmity or weakness of which these several faculties are respectively the seats, produces, or contributes to produce, in the testimony of a witness, one or other of these defects, will be the business of the next chapter.
The moral faculties concerned may be comprised under two heads: viz. veracity and attention: adding, or including, their respective opposites or negations, viz. mendacity, and temerity, or negligence: temerity being principally displayed by action, i. e. by utterance; negligence, by forbearance, i. e. by silence.
Veracity has place, in so far as it is the will, the wish, the desire, the endeavour, of the witness, that his testimony, and the conclusions drawn from it, be conformable to the real state of the case.
Mendacity has place, in so far as it is the will, the wish, the desire, the endeavour, of the witness, that his testimony, or the conclusions drawn from it, be in any respect unconformable to the real state of the case.
As the will can scarcely exert itself, at least with any considerable degree of vigour, but the intellectual faculty must, in a more or less considerable degree, be impressed with a consciousness of the exertion so made by the moral faculty; hence falsehood, when in this way wilful, is generally, and in a manner of course, in the mind of the witness, accompanied with self-consciousness—with a consciousness of its own existence. The two expressions, wilful falsehood and self-conscious falsehood, become thus interconvertible and nearly synonymous.
Verity has place, in so far as—whatsoever be the state of the will, of the volitional or moral faculty of the witness, on the occasion in question,—the report made by him concerning them, in and by his testimony, is conformable to the real state of the case.
Falsehood, or rather falsity (the word being used without reference to veracity or mendacity,) has place in so far as—whatsoever on the part of the witness be the state of his will, in relation to the matters of fact in question—his testimony fails of being conformable to the real state of the case.*
Be the attention of the witness, ever so closely applied to the subject, or ever so anxiously occupied in giving a correct and complete expression to the facts, the image of which is presented by his memory,—falsity on the part of his testimony may in any degree happen to be the result; ex. gr. owing to some infirmity in one or other of the four branches above mentioned of the intellectual faculty.
But where, mendacity having no place, falsity has place notwithstanding, it has frequently for its cause a deficiency in respect of that due measure of attention, by which, had it been, as but for his default it might have been, present, the picture given of the fact by his testimony would have been rendered more nearly resembling to the original—to the real state of the case.
The witness has uttered what was untrue; but he was not aware of its being so. Was he in any such situation as called upon him, in regard to justice, before he undertook to give the picture in question, to take measures for assuring himself of the correctness of it,—such measures as, had he taken them, would have saved him from falling into the error, and caused him either to have declared his inability to give any picture of the transaction, or if he gave any picture, to give a true one? If he was, his testimony, though free from the blame of insincerity, is not considered as free from blame altogether. In respect of the judgment, the erroneous judgment, thus formed and expressed by him,—that judgment being, for want of that attention which he might have bestowed and ought to have bestowed upon it, an erroneous one,—blame, viz. the blame of temerity—rashness, is imputed to him, and to such his testimony.†
In case of falsehood, there is yet another state of the mind which requires notice. In English, the word bias is employed for the expression of it: it is the state which a man is in, when he is said to have a bias upon his mind. The causes of bias cannot be understood any further than as the causes of mendacity are understood. But to understand it, viz. by means of its relation to mendacity,—for the present, nothing further is necesary than to understand, that mendacity has constantly for its cause some one or more motives (motives acting upon the will in a sinister direction—in a direction tending, in matters of testimony, to produce mendacity,) and that bias is produced by the action of these same causes.
Bias, then, is a tendency to falsehood in testimony, produced by the same causes as those by which mendacity is produced—a tendency, which, even when reduced to act, is not accompanied with that self-criminative consciousness which is of the essence of mendacity, and which distinguishes it from unmendacious falsehood, accompanied or not accompanied by temerity. The mind of Titius is under a bias: his situation exposes him to the action of some motive by which he is urged to depart from the line of truth. He resists the impulse, or yields to it; he adheres to the line of truth, or deviates from it: but, if he deviates, he is not conscious of his doing so; it is not his will, his intention, so to deviate: the falsehood, if there be any in his testimony, is not a wilful one.
When the tendency produced by bias is reduced into act, by the supposition there is no mendacity in the case, though the effect is produced by the action of a cause of the same nature as those by which mendacity is apt to be produced. Is there, or is there not, temerity? The answer is not easy: nor happily very material. Men in general are not so indulgent as to be thus nice. If the testimony of Titius is seen to be exposed to any of the causes of mendacity, and falsehood in any respect is understood to have been the result, such falsehood will not ordinarily be understood to be exempt from blame. The best that can easily happen to it, is to be understood as accompanied by temerity: most men would be apt to refer it to mendacity, without staying to think of bias.
Bias, being thus nearly related to mendacity, will require little separate mention to be made of it: having the same causes, it has, when it has any effect, the same effects; and (with the exception of punishment, punishment applied in a direct way by appointment of law) presents a demand for the same remedies.
OF THE INTELLECTUAL CAUSES OF CORRECTNESS AND COMPLETENESS IN TESTIMONY, WITH THEIR OPPOSITES.
When a statement given of a matter of fact is an exact picture of it—agrees with it in all points, it is then correct, and as correct as it can be: when it fails of coinciding with it in any point, in proportion to the degree of such failure it is incorrect. Correctness, properly speaking, is not susceptible of degrees: whatever degrees there are in the scale, are degrees of incorrectness.
A statement which, without any intention on the part of the testifier to depart from the truth, is incorrect in any respect, may, as already observed, be either false in toto, or false only in circumstance. When it is false in toto—when the picture which it exhibits has not for its original any real fact whatever, or any feature or circumstance of any fact,—it is in that case the mere work of the imagination: of which afterwards. When it is false only in circumstance—when, though it departs from the original in some points, it has an original from whence it was taken,—the cause of the departure lies, in this case, in one or more of the intellectual faculties—perception, judgment, memory, or expression—enumerated above.
In the case of perception, where sight was the sense through the medium of which the cognizance of the fact was obtained, the light in which the object was placed may have been faint; or a part of it only, and not a sufficient part, may on that occasion have presented itself to his eye.
In the case of hearing, in like manner, the sounds which reached his ear may have been faint; or, of those which on that occasion were produced by the sonorous body, parts only, and those broken and interrupted, reached his ear: in the case of words spoken, the voice of the speaker may have been faint, the distance at which he stood considerable, and, from one cause or the other, of the words of which the discourse was composed, some excited, some failed of exciting, a distinct perception. And so on through the less instructive and less constantly active senses—the touch, the smell, the taste.
So intimate is the connexion between the two phenomena,—the perception, the impression made on the organ of sense,—and the act of the judgment performed in consequence, the inference drawn from the impression, the inference made by the judgment in relation to the supposed cause of it; so prodigious is the rapidity with which, in most instances, the consequent judgment succeeds to the antecedent perception;* that, by him who has not by some special motive been led to the making of the analysis, the distinction will be apt to pass unperceived.
Among the topics of disputation, which, having been handed down from past ages, are agitated, or used at least to be agitated, in the logical schools at the English universities, one is, the question whether sense is or is not capable of being deceived? To give a just answer to this question, the process conveyed to the mind by the words sense, sensation, requires to be decomposed as above. Deception is an attribute of the judgment only: to have been deceived, is to have passed an erroneous judgment, a judgment more or less disagreeing with the fact. So far, then, as judgment is not concerned in sensation, sensation is not capable of being deceived: so far as judgment is concerned in sensation, sensation is capable of being deceived. An impression either has been received, or it has not: if it has, there is no deception in that case; it it has not, neither is there any deception in that case. The impression is, in case of sight, the sort of sensation produced by the striking of rays of light arranged in a certain order upon the retina; in case of hearing, the sort of feeling produced by the vibration given to the air by the sonorous body, and from the air communicated to the auditory nerve.*
When the judgment has been rendered erroneous by want of attention, and that defect of attention has been produced by want of interest—that is, of motive—this modification of the cause of error in testimony is to be considered under the head of moral, not of intellectual, causes.
Perception may have been rendered faint or indistinct by old age: attention may have been rendered indifferent, judgment hasty, negligent, and erroneous, by want of knowledge, general or particular, absolute or relative—the fruit of relative experience, observation, information, and meditation. Want of relative knowledge may be indicated by condition in life, by immaturity of age, and by insanity. False opinion, a still more powerful cause of incorrectness than simple ignorance, may be indicated in some instances by the like marks.
Where the chemist and the physician see a dangerous poison, the kitchen-maid may see nothing more than an immaterial flaw in one of her pans; the cook may behold an innocent means of recommending herself to the palate through the medium of the eye.
Where the botanist sees a rare, and perhaps new, plant, the husbandman sees a weed; where the mineralogist sees a new ore, pregnant with some new metal, the labourer sees a lump of dirt, not distinguishable from the rest, unless it be by being heavier and more troublesome. The same distinction may be pursued through the whole field of social occupation, and through every walk of science.
Under insanity are included idiocy and lunacy: the former a permanent disorder, and thence indicated by permanent marks; the other an occasional one: the former, therefore, presenting itself with greater certainty to the cognizance of the judge. Lunacy does not so much weaken the judging faculty, as disturb and delude it with false opinions, the product of the imagination; and thus belongs to an ensuing head. In both shapes, insanity may differ from itself in strength, by an infinity of shades—few, if any, distinguishable by any exact criterion, or measurable by any applicable scale.
Another intellectual cause of incorrectness in human testimony, is failure of memory. A failure of this sort may have had for its cause, either some original faintness or indistinctness in the act or acts of perception, as above described, or else the lapse of time—the length of the interval between the point of time at which the fact presented itself to the conception of the witness, and the point of time at which it happens to him to exhibit his statement of it for the information of the judge.
From the weakness of the memory may result two different, and in some respects opposite, effects: non-recollection, and false recollection.
Though the correctness of the conception entertained of the fact admits of no gradations upwards, yet this is not the case with regard to the vivacity of it—the quality on which its correctness at any subsequent and widely distant point of time so materially depends. Perfect correctness of conception may be stated as a result more usual, more ordinary, perhaps, than any degree of incorrectness: but were it possible to determine the most ordinary degree of vivacity, we should find as many gradations above that mark, perhaps, as below it. The highest point in it might be described as being immediately below that at which a morbid suspension of the sensitive faculty, or a morbid disturbance of the reasoning faculty—insanity, in a word, transient or permanent—would ensue.
Importance in the fact, as above described, is the quality with which the degree of this vivacity will have been connected. This, like the vivacity which is its effect, will be susceptible of all manner of degrees—above, as well as below, the middle mark. There are some facts (and such are the infinite majority of the whole number of facts observed,) so unimportant as to be capable of escaping out of any man’s memory the next minute after that in which the perception of them has taken place: there are others of which the importance, either absolute or relative, with regard to the individual, is so great, that, unless on the supposition of an almost total decay of the faculty, through old age or disease, it will not be credible that the picture of them should have been effaced out of his memory by any length of time.
As importance may rise to any degree in the scale above the middle, so any degree of faintness that might have been produced by staleness, may have been compensated for by importance.
The importance of the fact may be either intrinsic, or in the way of association merely; viz. in respect of the property it has acquired by the influence of the principle of association, of calling up and presenting to the mind the idea of some other fact, which has an importance of its own. A drop of blood observed in a particular place may serve to indicate a murder: a knife of a particular appearance, found in a particular place, may serve to indicate the person of the murderer. Connected in the mind of a percipient witness with the idea of that atrocious crime, these circumstances will possess the degree of importance due to them, their apparent importance will, in his mind, stand on a level with their real importance. Taken separately, and without any such connexion, their apparent importance would have been as nothing: and no sooner had they found their way into the conception, than they would have made their escape out of the memory. In a butcher’s shop, neither the knife nor the blood—neither a few drops of it nor a whole puddle, would have attracted the slightest notice.
Oblivion—forgetfulness—is not the only failing of which the memory is susceptible: erroneous recollection is another. Without any the least false consciousness as to any point whatever—without any intention or desire of departing in any point from the strict line of truth—a supposed recollection may be false, not only in quantity, quality, or other circumstance, but even in toto. I can speak from experience. Recollection false even in toto is what it has every now and then happened to me to detect myself in. I should expect to find this to be the case more or less with everybody. I speak of recollections devoid of all importance, and the expression of which has never gone forth, nor been intended to go forth, out of my own breast: and in respect of which, all inducements to mendacity, all causes of bias, have consequently been out of the question.
One circumstance, however, has been common (if in this instance too I do not misrecollect) to all these instances of misrecollection and false recollection: the image of the supposed transaction has been faint and dubious. It has been deduced, as it were, in the way of inference, from some real and better recollected facts, which have operated as evidentiary facts with relation to these false ones. It might be regarded as the work of the imagination, were it not for its having a distinct and solid ground to rest upon in the truth of things.
A proof of the difference has been afforded, when, for the purpose of confirming or disconfirming the truth of a dubious recollection of this sort, I have communicated it to some other person, whose opportunities of observation or means of judgment have appeared to render him more or less qualified to help me out. By his recollection or opinion, my own supposed recollection has been influenced. Supposing his persuasion to a certain degree strong, it has determined mine: my supposed recollection has appeared true or false to me, according as it has appeared true or false to him.
On the other hand, when the recollection the internal evidence, is clear and strong to a certain degree, there is no room left for any such external evidence to operate. To every man, recollections must present themselves in multitudes—recollections even of the most ancient facts, against which the evidence of all mankind would not predominate in his breast.
A recollection which is false in circumstance only, may be so, either by being superadded to such parts of the recollection as are true, or substituted to one or more of them. The case of substitution, though the more natural and usual case, is in its description the least simple. It is resolvable into the two opposite modes of falsehood, obliterative and fabricative: a true part of the scene, as it once stood painted, is rubbed out, and a false object painted in the room of it.
A recollection false in toto, is as easy to describe and conceive as a recollection false in circumstance. It, however, scarcely admits of being realized. Recollection, if it be recollection, must have had some ground, how narrow soever, in the truth of things, to serve as a foundation for the conception of the false facts. Take away this portion of the true ground, the picture is the work, not in any respect of the recollection, but of the imagination merely. The original picture is completely rubbed out by the hand of oblivion; and fancy has painted a picture of another imaginary fact in the place of it.
There are two causes, by the influence of which memory may be refreshed, and by that means rendered, at the time of deposition, more vivid than, by reason of the joint influence of the importance of the fact and the ancientness of it, it would otherwise be.
One is, intermediate statements; by which are supposed, intermediate recollections. The oftener a man has had to give an account of a fact, the less likely he is to have forgotten it, or in any point misremembered it. If in writing, the refreshing touch will naturally have been so much the stronger; inasmuch as the committing of a statement of any kind to writing, calls forth unavoidably a greater degree of attention than the exhibition of it vivâ voce in the way of ordinary conversation.
Another is, fresh incidents—perception of fresh incidents, or receipt of any statement, oral or written, of any fresh incidents—connected in the way of association with the fact in question. The sight of the spot where I have once met a friend, now far distant, recalls a vivid recollection of the friend himself; and not only of himself, but of what passed between us in that place.
Of intermediate recollections which have not been productive of any fresh statement—of mere intransitive recollections, which have never, through the medium of either the tongue or the pen of the witness, made their way out of his mind—the effect, though not equal in degree, will of course be of the same kind. By recollection, even of this silent sort, the picture cannot but have received a degree of refreshment—a degree the more considerable, the oftener this mental operation has been repeated. The circumstance is here mentioned, lest the conception given of the subject should be incomplete: but in practice, no application can be made of it.
When the memory of a witness, whose testimony is exhibited in a court of justice, is known to have been refreshed, this circumstance will naturally have a considerable influence on the degree of persuasion produced by his evidence. If the agreement between the two statements be substantially complete, the persuasive force of the evidence may in this way receive considerable increase. If there be any material variance, it will be a sign that, in one or the other of the two statements—the judicial, and the prior non-judicial one—there must have been a tincture of incorrectness, accompanied or not by mendacity, as the case may be. And the stronger the degree of refreshment, the less likely the incorrectness to have been unaccompanied by consciousness.
The last of the causes of incorrectness in evidence, above enumerated, is inaptitude of expression. The picture of the fact, as painted in the memory of the witness at the time of deposition, may be ever so correct; yet if the copy exhibited by the words and other signs employed by him for the expression of it be otherwise than correct, such accordingly will be his evidence. By an infelicity in the expression, the fruit of the most correct perception, and the most retentive memory, may be rendered abortive.*
On comparing the aberration liable to be produced by inaptness of expression, with the aberration producible by non-recollection or false recollection, the following differences appear discernible:—
The aberration by expression seems liable to be more wide than the aberration of the memory. It is capable of giving to the evidence a purport even directly opposite to the true one. The reason is, that a recollection, however false, if it be not false in toto, will, in some feature of it, be conformable to the truth: and the improbability of a recollection false in toto has already been exhibited. Recollection (as contradistinguished from mere imagination,) having its basis in truth, can scarcely be removed from that basis altogether. Expression, on the other hand, has no necessary tie by which the words are confined to any degree of conformity with the ideas they were intended to represent. The aberration is capable in this case of being so complete, that the fact, as actually expressed, may be the exact opposite of the fact as intended to be expressed. In the English language, two negatives, in correct and polished language, are equivalent to an affirmative: in the language of the illiterate classes, they amount frequently to no more than a negative. In the French tongue, negative is added to negative, on many occasions, without reversing the proposition, in the language of all classes.
On the other hand, an aberration arising from this cause does not appear to be altogether so natural, or likely to be so frequent, as an aberration arising from weakness of memory: at least, not to such a degree as to have any considerable effect on the persuasion of the judge. The reason is, that if the aberration be apparent, it will naturally receive correction from the remarks and questions that in each case may be expected from the judge; whereas a defect of recollection is little capable of receiving any such assistance.
In this respect it stands on a different footing, according to the form in which the testimony is presented to the judge—according as it is exhibited in writing, or vivâ voce. Exhibited in writing, it is less exposed to be incorrect in point of expression, on account of the assistance it will naturally receive from the hands of the professional assistant of the party whose evidence it is, if a litigant party,* or by whom the evidence was called for:† but in this case it has no chance of receiving correction from the judge. Exhibited vivâ voce, it is much more exposed to be incorrect at first utterance, but has the advantage of being open to correction from the judge; viz. either from the judge immediately, or, under his authority, from the professional assistant of one or other of the parties.
Incorrectness from this source, in the course of a vivâ voce examination, can, therefore, seldom take place in any very essential circumstance, without some degree of blame on the part of the judge; nor, on that and other accounts, without some degree of blame on the part of the system of procedure.‡
In the case of vivâ voce examination, timidity is, perhaps, the most frequent cause of incorrectness in the expression. Of this timidity, the causes of a higher order are principally to be found in inferiority in respect of rank, sex, and age. The degree of it is of course susceptible of an infinity of gradations, according to the idiosyncrasy of the individual. The highest gradations will be found in the case where it has sex for its cause; especially when that cause is combined with that which results from age. It will be influenced in a very considerable degree by the degree of intercourse which a person has had with the world; by the number of persons whom he has been in the habit of living with,—a circumstance of which the influence is perhaps greater in this case than that of rank. But though sensibility of this kind, derived from weakness of sex, miniaturity of age, inferiority of rank or of social intercourse, bears, with reference to the phenomenon in question, the relation of cause to effect: it would be an abuse of logic to state the effect in those cases as running in any regular proportion with the degree of the cause. In the female sex, it will also be naturally influenced by condition in life, in respect of matrimony. The sort of person likely to be affected in the highest degree from the joint influence of all these causes, is probably an unmarried female, about the age of puberty, and a few years afterwards.
Timidity, upon a closer view, will be found to be, on this occasion, neither more nor less than an extraordinary degree of sensibility to the force of the three tutelary sensations, as applying themselves in this instance: viz. the moral, the political, and the religious; but more especially the moral.∥
This timidity will be influenced in a considerable degree by the publicity of the examination: and the error, which is but too apt to arise from this source, is among the inconveniences which require to be set in the scale against the still preponderating advantages which will be seen to result from that cardinal security for truth.
An intellectual cause of incorrectness in testimony, not yet brought to view, and which could not be enumerated among the causes which apply to correctness and incorrectness, because it is applicable to the latter alone is the imagination, taking the place of recollection.
In weak and undiscerning minds, the simple idea, the mere conception, of an object, be it substance or event, matter at rest or matter in motion, may come to be but faintly discriminated from, may come even to be confounded with, the belief of its existence. At this moment, I have in my mind three ideas: one of a hill of pure sand, another of a hill of pure gold, a third of a hill composed of gravel, chalk, and flints, with a miscellaneous intermixture of animal and vegetable remains. The idea of the golden hill is as vivid, as well as distinct, in my mind, as that of the sand hill: it is more so than that of the composite hill. But to the idea of the composite hill, as well as of the sand hill, is annexed an act of the judgment, importing belief—the belief which I am hereby expressing, of the existence of hills—an indeterminate number of hills, of that sort,—a belief, the expression of which is a proposition to this effect: Sand hills exist in nature; the idea I have of a sand hill has its archetype in nature. To the idea of the golden hill is annexed, likewise, a proposition analogous to the former, but of the opposite cast: No hill of pure gold exists in nature—of the idea I have of a golden hill, there is no archetype in nature. In a weak uncultivated mind, this act of the judgment is sometimes passed on any the slightest evidence—on what, to a stronger and more exercised mind, would seem no evidence. Put into the hands of a child of three years old, under the name, not of a story-book, but of a book of natural history—a book in which the existence of golden hills is assumed, as well as that of send hills,—the judgment of belief will, in his mind, as readily attach itself upon the existence of the one sort of hill as upon that of the other. Show him at a little distance a hill covered with grass, and tell him that under the grass it is all solid gold,—and let nobody in his hearing ever intimate any suspicion to the contrary,—the belief of the existence of a golden hill may thenceforward present itself to his mind as having been demonstrated to him by the evidence of his senses.
Of the false facts presented to the imagination, and at the same time presented under the guise of real ones at the time,—the only ones the experience of which is common to everybody, are the facts presented in dreams. In infant minds, minds as yet but little exercised in the art of applying attention to the operations of the judgment, the distinction between the state of waking and the state of dreaming, between the waking and the dreaming thoughts, is for some time so faint as to be occasionally evanescent. In my early childhood, at a time when I was just able to go up and down stairs alone, being at the top of the staircase, and having made a false step, it seemed to me that, instead of falling headlong and rolling down the stairs, I felt myself gently wafted, as it were, from top to bottom, and there landed safe, my feet not having come in contact with anything the whole time. At present I have no more difficulty in recognising these sensations to have presented themselves in a dream, than anybody else would have: but I have all along preserved a distinct recollection of a time, and a time of considerable duration, during which the imaginary scene was accompanied in my mind by a belief of its existence. To this recollection is superadded a recollection of my communicating to some person, but I forget whom, the relation of this incident, as an adventure not more extraordinary than true. Had a dream to this same effect been dreamt by Wesley, the recollection of it would probably have remained numbered among his real recollections to the end of his life. In his journal are contained the histories of more than one adventure, in which the deviation from the laws of nature is little, if anything, more considerable. A text, which that incident used not unfrequently to recall to me, might, with the help of a Wesleyan imagination, have been unalterably associated with the conceived event:—“He shall give his angels charge over thee, to keep thee in all thy ways: they shall bear thee up in their hands, lest thou dash thy foot against a stone.” Such was the passage in one of the songs of David,* as quoted to his divine descendant by the devil:† and although, among the attributes of that mysterious personage, he numbers that of being the father of lies,—for this time, at any rate, his quotation was correct. An angel holding the favourite infant by the hand as it glided down the staircase, might have added neither an unapt, nor an unnatural, embellishment to the scene.
Thus fugitive and precarious, in an unformed mind, is the distinction between the mere conception of an object, and the belief of its existence: thus apt is the judgment, embracing and including the image, to be confounded with the image alone. In this sort of confusion we may behold a principle which not only took possession of, but contributed largely to the generation of a system in, the mind of the sceptical and sagacious Hume. Belief of the existence of an object is, according to him, neither more nor less than a certain degree of vivacity in the idea introduced by the object into the mind. By what kind of photometer shall that degree of vivacity upon which belief attaches, be distinguished from those fainter ones to which no such act of the judgment is annexed?
Between the ages of eight and nine, the metamorphoses of which Ovid is the historian, and the prodigies of Jewish history (such was, and such continues to be, the course of instruction at the royal school of Westminster) were presented together to my tender and susceptible mind. On the one hand, the devil in a variety of shapes,—on the other hand, the scenes in Ovid (Baucis and Philemen, I remember, for one) would ever and anon present themselves to my dreaming, as well as my waking, thoughts. Which was the more agreeable class, I well know: which was the more lively, I could not engage to say. Yet, under this uncertainty in respect of superiority of vivacity, in respect of belief there never was any the smallest doubt. Parental solicitude was too steadily at its post to suffer any the smallest confusion to prevail in those tints by which belief, disbelief, and conception pure from each, are characterized and distinguished.
The reader will approve or disapprove, as it seems good to him, this exhibition of egotistic evidence, in a case which admits not of any other.
If, in a susceptible and unformed mind, the mere idea of an object is found to operate as sufficient evidence of its existence,—much more frequently will it be sufficient, when the way for its reception in that character has been prepared by popular opinion operating in favour of it, in the character of a mass of remote indeed, but most extensive, and thereby impressive, circumstantial evidence. Hence it is that those terrific spectres, ghosts, witches, devils, and vampires, which, for the last time let it be hoped, have haunted the seat of justice, have not yet ceased to haunt the garret and the cottage.
Under the head of imagination—that is, under the head of incorrectness of testimony considered as flowing from that source—it was necessary to introduce the world of phantoms. The occasions on which false evidence, created by the imagination, has in this way had religion for its source, have been but too frequent. The cases in which false evidence, pure from all mixture of mendacity, has been generated by the imagination, without the benefit of any such supernatural assistance, will hardly be to be found.*
There are two cases in which the result produced is simple incorrectness—pure, or nearly so, from mendacious consciousness, but of which, nevertheless, the causes belong to the moral department. These are, the case of bias,—a case that has already been slightly brought to view; and the case of indolence—the case where the departure from the direct line of truth has a sort of unconscious indolence for its cause.
To what end the above analysis? To the following ends:—
1. To give a view of the cases in which falsehood is incapable of being prevented.
2. To save the judge from imputing mendacity where there is none—where there is none of that false consciousness which is essential to it.
3. To facilitate the recognition of mendacity where it exists:—a task which will be the easier, the clearer the light in which the characters of simple incorrectness are presented.
4. To give assistance to that one of the parties who has truth and justice on his side—whose interest it is that the truth should be brought to light—by suggesting to him topics for investigation and examination.
So obvious are most of the considerations above presented—so much in the way of every body’s observation, that, under the name of instruction, they have scarce any pretension to be of any use. But, what a man has had in his mind, he has not always at hand at the very moment at which it is wanted: what conveys no instruction, may serve for reminiscence.
Minute and trivial as the distinctions may be, the sketch was necessary, to complete the anatomical view which for this purpose it was necessary to give of the human mind. In corporeal anatomy, to trace out the ramifications of the nerves was no amusing operation, but not the less a necessary one. Hunter, the Garrick of lecturers, would sometimes turn it over to his assistant Hewson, but he never would have held himself warranted in omitting it.
OF THE MORAL CAUSES OF CORRECTNESS AND COMPLETENESS IN TESTIMONY, WITH THEIR OPPOSITES.
The moral causes of correctness and completeness in testimony, with their opposites, are motives.
Of action (including, in so far as it is the work of the will, inaction, or forbearance)—of action, in whatsoever shape displayed, the efficient causes are motives; and it has no others that are perceptible.
Utterance of testimony is action. Whatever verity there is in testimony, is therefore produced by motives: and again, whatsoever mendacity there is in testimony, is also produced by motives. Even when the result of mere temerity or negligence, and therefore not referable to the head of mendacity, falsity may be referred to motives: that deficiency of attention, of which the falsity in question is the result, being itself the result either of the love of ease (an article having, as will be seen, an indisputable title to a place in the catalogue of motives,) or at any rate, of the absence of some motive, by which, had it been present, the requisite degree of attention—the degree requisite to the production of correctness and completeness—would have been produced.
A motive, is the idea or expectation of good or evil:—of good, as eventually about to result from the mode of action or conduct with reference to which the idea or expectation of it operates as a motive; of evil as eventually about to be produced by the opposite mode of action or conduct.*
Motive, being a conjugate of motion—motive (though the only word in ordinary use for the purpose of expressing the efficient cause of the mode or line of conduct observed by a man on every given occasion) is in its import too narrow for the purpose: for, be the result action or inaction—motion (whether of the physical or psychological faculties) or rest,—and, in case of offences for example, be the offence produced an offence of the positive or the negative cast,—an appellative for the designation of the efficient cause of the effect thus produced, is alike necessary.
To supply the deficiency, either such a signification must be added to the signification of the word motive, as involves a sort of contradiction in terms—a motive producing, not motion, but the absence of it, viz. rest; or some other appellative, simple or composite, must be employed instead of it: simple, as determinative,—compound, as principle of conduct, source of conduct, efficient cause of conduct.
Rest being the result of the absence of motives—action, positive action, being, when motives are present and operating, the more usual and more conspicuous result of such their operation—hence, to designate the efficient cause of action, the word motive came originally,—and, for want of conceptions sufficiently clear and comprehensive on the part of moralists, has continued—exclusively to be employed. Of imperfect conceptions, imperfect expression has, throughout the whole field of conception and language, been the necessary result.
The relation borne by the signification of the word interest to the signification of the word motive, has on this occasion been rendered a necessary object of attention, and a necessary subject of explanation, not only by the use made of it in common language, but by the use made of it, and the gross and pernicious errors propagated by means of it, to so prodigious an extent, and with such baneful effect, by lawyers.
Correspondent to every species of pain or pleasure, is a species of motive; correspondent to every species of motive, is a modification of interest.†
A motive, is an interest considered as being in a state of action—as being, on the occasion in question, actually exerting its influence on the mind of the individual in question.
An interest, is a motive considered in an abstract point of view; viz. as possessing the faculty of being called into action, but without presenting to view any particular occasion in which it is considered as employing itself in the exercise of such faculty. When the word motive is employed, the object designated by it is in general not considered as pointing any further than to the particular good which is considered as being in view. Interest—when I say such is my interest, or, it is my interest to do so and so—points not only to the attainment of that good, but to the general effect of that event upon the sum of my well-being.
The word interest is used in an abstract sense; viz. for the purpose of designating either some particular species of interest, but without designating what; or every species of interest without distinction; or all taken together: this acceptation is wanting to the word motive.
The word sinister is applied as an epithet indifferently to the word interest or to the word motive. Employed in the way it usually is, it leads to error; conveying the intimation that there are particular species of interest to which the property thus designated belongs; viz. either constantly or incidentally, but in both cases to the exclusion of others. The truth, however, is, that there exists not any species of interest—any sort of motive, in which this property may not occasionally be found. By a sinister interest or motive, is meant an interest or motive that acts in a sinister direction, i. e. that excites or leads to evil—an interest or motive, by the force of which a man is prompted or excited to engage in some evil line of conduct: but there is not any species of interest—any species of motive, to which it may not happen to act in this, as well as in the contrary, direction.
If this part of the field of language were filled up upon any regular and complete plan, opposite and correspondent to sinister as applied to interest, we should have dexter as applied to the same subject: forasmuch as interest is no less apt to lead to good than to evil. As every man has a right side as well as a left side, so, in heraldry, every scutcheon has a dexter side as well as a sinister side—but the language of psychology, though a science rather more useful than heraldry, is not equally well provided.
Of the three classes, to one or other of which all pleasures and pains, consequently all motives, may be referred, viz. the self-regarding, the social, and the dissocial or anti-social,—the word interest is more frequently applied to designate those of the self-regarding class, than those of either of the two others; and among those of the self-regarding class, most frequently of all to that which stretches over so much larger a portion of the field of action than any other of them, viz. the love of money.
Accordingly, this is the only species of interest which the man of law, at least the English, recognises under that name. Good, he knows of none but money: evil, he knows of none but the want of money: interest, he knows of none but pecuniary interest: interest, motive, passion, he knows of none but the love of money.
Accordingly,—be it as it may in regard to other trangressions—to offences, to crimes, committed by other means, by the aid of other instruments,—mendacity is a transgression to which, according to his conception of the matter, no man can be engaged by any other modification of interest than pecuniary interest: nor is there, according to him, that particle of this sort of interest, so impalpably small, to the force of which, if exerted in exciting him to mendacity, it lies within the sphere of possibility that he should oppose an effectual resistance.*
Of this error in theory, the practical consequence (it will be seen) is no less than perpetual injustice, with that perpetual insecurity, and that perpetually renewed affliction, which are among the fruits of it.
In the objects designated by the words pleasure and pain, we see two articles, of which the importance does not seem much exposed to be undervalued, or the nature very liable to be misunderstood.
By reference to pleasure and pain, the word motive in all its several acceptations, and the species of objects comprised under that genus in all its several modifications, receive, now at least (and, so far as concerns the subject of evidence, now for the first time,) a clear and determinate signification. So many distinguishable sorts of pleasures and pains, so many distinguishable sorts of motives.
On the one hand, veracity, and, so far as depends on attention, verity—on the other hand, mendacity—being the result of determinate motives or combinations of motives,—what remains, so far as the will is concerned in the production of those opposite results, is to observe, on the one hand, in what cases, and in what manner, the efficient causes in question operate in the beneficial and desirable direction indicated by the words veracity and verity—that is, in favour of correctness and completeness, on the other hand, in what cases, and in what manner, the same efficient causes (for in both instances they will be found to be at bottom the same) operate in the pernicious and undesirable direction indicated by the word mendacity.
Considered in the character of an efficient cause of veracity and verity in testimony, a motive of any description may be termed a veracity or verity-promoting, or mendacity-restraining, motive.
Considered in the character of an efficient cause of mendacity or bias, and thence of falsehood, a motive of any description may be termed a mendacity-prompting, exciting, or inciting, motive.
On these definitions may be grounded a sort of aphorism or axiom, which, in the character of a help to conception and to memory, may be not altogether without its use. On every occasion, the probability of veracity, and thence, so far as depends upon will, of correctness and completeness in testimony, is as the sum of the force of the mendacity-restraining, to the sum of the mendacity-exciting motives.
Any motive may operate as a cause either of veracity or of mendacity
Of the causes of mendacity and veracity, the list is the same as that of the causes of human action: no action so good or so bad, that it may not have had any sort of motive for its cause. This is what has been already stated, and, if I mistake not, put beyond doubt, by a general survey of the whole stock of motives elsewhere.*
No action, good or bad, without a motive: an action without a motive, is an effect without a cause. Yet men stand excluded by whole shoals and classes from the faculty of being made to serve in the character of witnesses, for no other reason than then standing exposed to the action of this or that species of motive!
No action, good or bad, or even of the class of those termed indifferent (a class which, strictly speaking, has no existence† )—no action whatsoever without a motive. To actions of atomical and almost invisible importance, correspond motives of atomical and equally invisible force.
To judge whether a motive be capable of giving birth to mendacious testimony exhibited in a court of justice, it will be necessary to observe what sort of result it must be that is expected to ensue from the evidence in question; that is, from the decision which will naturally and properly be grounded on that evidence, taking it for true. Applying this test to the several sorts of motives, we shall find that there is not one of them that is not capable of giving birth to mendacious testimony; that there is not one that would not, in certain cases, be necessarily productive of that effect, supposing the force of it to be unchecked by that of any other motive or motives. As there is no sort of pleasure or pain to which it may not happen to a man to be subjected in consequence of the decision of a court of justice,—it follows of course, that there is no sort of motive by which he may not be urged to do whatever is in his power, towards procuring the decision by which the pleasure in question may be secured to him, or the pain averted. And unless the force of any such motive be counteracted by a stronger motive, it will of course lead him to commit mendacity in that view, if mendacity be the most probable means which occurs to him of effecting his object.
As in the whole catalogue of motives there is none which is not capable of producing mendacity, so in the whole catalogue there is none, the force of which is not liable occasionally to act upon the mind in a direction tending to insure its adherence to the line of truth.
On the same individual occasion, a motive of the same kind operating on different persons at the same time, may prompt one of them to speak true, the other to speak false.
Take the motive of self-preservation—self-preservation from legal punishment. In the character of defendants on a criminal charge, two persons are under examination. One of them is innocent: his interest is manifestly to speak true; every true fact he brings to view, that is pertinent to the object of inquiry, operates in his favour in the character of circumstantial evidence. The other is guilty: the true facts, if brought to view, would operate towards his conviction, in the character of articles of criminative circumstantial evidence: accordingly, under this apprehension, he either suppresses the mention of them, or denies their existence, substituting, or not substituting, in the room of them, false facts of his own invention, adapted to the purpose.
On the same individual occasion, the self-same motive, operating on the same person at the same time, may prompt him, in relation to one fact to speak true, in relation to another to speak false.
The guilty defendant is under examination as before. Various questions are put to him, tending to draw from him the admission or the denial (say the admission) of so many various facts. These facts are all true; all of them in their tendency operating against him in the character of circumstantial evidence. Within the compass of twenty-four hours, suppose he was at four different places specified. Self-preservation is his object—an object he is willing to purchase, and at any price. In regard to three of the four facts, mendacity, he sees clearly, presents not the smallest chance of being of use: these facts, he understands, will be proved against him by other evidence; and mendacity being thus detected, would operate against him in the character of a criminative circumstance: the fourth, he hopes, may not be thus capable of other proof. What in this case will he do? He will admit the three first facts, and in respect to those facts, speak true: he will deny the fourth, and in respect to that, speak false.
Mendacity or veracity will in each instance be the result, according as, in that particular instance, the force of the mendacity-prompting, or say seducing motives, or that of the veracity-insuring, or say tutelary motives, is the strongest.
There is no species of motive but what is capable of existing in, and acting with, any degree of force, from the lowest to the highest or—at least, a degree in practical effect equal to the highest.
There is no species of motive, of the effective force of which, in any given instance, any tolerably well-grounded estimate can be formed, without a survey made of the several influencing circumstances in the situation of the witness, on which the effective force of the motive depends; which survey cannot be completely made without a vivâ voce examination taken of the witness himself, having for its object the bringing of those circumstances to light.
There is no one species of motive, of the effective force of which any certain prediction can be made, even after a survey taken, and taken in the best manner, of the several influencing circumstances above mentioned.
Although there be some species of motives, of which the force is upon a medium considerably greater than that of others; yet, as they are capable of acting, each of them, according to circumstances, with any degree of force, from the highest to the lowest, it is impossible to form any tolerably well-grounded prediction with respect to the comparative probability of mendacity or veracity, from the mere observation that, on the occasion in question, the witness is subjected to the action of this or that species of motive.
These two axioms cannot be too often repeated.
No species of motive but is capable of operating in the character of a mendacity-exciting cause.
With but slight exception, and with none that is worth noticing for this purpose, no species of motive but is capable of operating with any degree of force.
In the non-observation of these fundamentally important truths, lies the main root of the exclusionary system already spoken of—that system of misrule, the exposure of which in detail is one of the principal objects of this work.
Of the four sanctions, considered as causes of trustworthiness or untrustworthiness in testimony.
By interests and motives, so far as depends upon the state of the will, are (as hath been seen) produced, in so far as it happens to them to be produced, correctness and completeness in testimony. By those same psychological powers, so far as depends upon the will, are, on the other hand, produced, in so far as it happens to them to be produced, the directly opposite qualities, incorrectness and incompleteness.
But, in each pair, the opposite qualities are in such sort opposite, as to be mutually incompatible. Incapable of existing both of them in the same instance; in each instance, which is it that shall have place?
All depends upon the occasion: of the two opposite sets of forces—on one occasion we shall see the one set prevail—on another occasion, the other.
One leading distinction, however, may be remarked at the outset. Of the tutelary forces, the efficient causes of correctness and completeness, the operation (as will be seen) is constant—operating on all occasions: while of the seductive forces—the efficient causes of incorrectness and incompleteness—the operation is but casual, brought about by particular incidents and situations.*
The general prevalence of correctness and completeness over the opposite qualities in testimony, is a matter of fact out of the reach of dispute, and a state of things the existence of which may be regarded as indispensably necessary to the existence of mankind: it is to the general predominance of the tutelary forces over the seductive, that this prevalence of truth over falsehood is to be ascribed.
Be it in the correct direction, or in the sinister and seductive direction, that it acts—it is still by interest, operating in some shape or other in the character of a motive, that (so far as depends upon the state of the will) the state of the testimony in respect of correctness and completeness is produced. But whether it be the act of giving testimony, or any other sort of act, that constitutes the occasion on which they are considered as operating,—these forces, considered in respect of the direction (viz. the straight direction) most frequently and habitually assumed by them, have in another place† been considered as acting in various groupes; to each of which groupes the name of a sanction, in conformity to a usage already found established, has been attached: the principle of combination being, in each instance, the source from whence the pains and pleasures, acting thus in the character of interests and motives, are seen or supposed to flow.
According to this principle of division, there are four distinguishable sanctions: the physical, the legal or political, the moral or popular, and the religious; which three last may, in consideration of the seat of the pains and pleasures immediately belonging to them, be comprised together under the collective appellation of psychological.
To the physical sanction may be referred all pains and pleasures which are capable of being produced, and habitually are produced, by the operation of causes purely natural; without the intervention of any of the powers, from which the pains and pleasures belonging to any of those other sanctions derive, or are supposed to derive, their existence.*
To the legal, or say the political† sanction may be referred all such pains or pleasures as are capable of being expected at the hand of law and government: pains which, expected from that quarter, and considered as expressly designed to influence action, assume the name of punishment: pleasures which, expected from that quarter, and considered as designed to influence action, assume the name of reward
As there is scarce a pain or pleasure, whether of the physical class or the psychological, which may not immediately or remotely be produced by the hand of political power, and thus assume the shape of punishment or reward; hence it may be understood, that the circumstance by which the pains and pleasures capable of emanating from the legal or political sanction, are distinguished from those of the physical, is, not so much the nature of the sensations themselves, as the quarter whence they are looked for—the source from which they are expected to flow.
To the moral, or say the popular‡ sanction, may be referred all such pains and pleasures as are capable of being expected at the hands of the community at large—that is, of such individual members of it, within the sphere of whose action it may happen to the condition of the individual in question, in his supposed character of witness, to be comprised: such individuals acting, on the occasions in question, in pursuance of whatsoever liberty of indifference is left to them by the law; and accordingly, at pleasure, rendering, or forbearing to render, to him, any such services as they are left at liberty to render or to withhold at pleasure; and producing on his part, or forbearing to produce, any such uneasinesses as, in his instance, they are in like manner left at liberty to produce at pleasure.
From the catalogue of the pains referable to this sanction, are obviously excluded all those severer pains which, for their infliction, require the uncontroulable and irresistible hand of law. But, with this exception, the pains as well as pleasures referable to this sanction, and emanating from this source, may be said nearly to coincide with the pains and pleasures referable to the artifical source just mentioned. When negative action is taken into the account as well as positive—negative action, to which much greater liberty is, and in the nature of the case must be, left by law than to positive,—it will be seen, that of the pains to which a man can be subjected by law, there is not one to which, in a way more or less immediate, it may not happen to a man to be subjected by the free agency left to individuals; viz. in this sense, that, by means of some service or other which it was left free to them to render or not, he might by this or that individual have been preserved from it.
To the religious sanction are to be referred all such pains and pleasures as are capable of being expected at the hands of an invisible Ruler of the universe,
In so far as the pains and pleasures expected from this supernatural source are regarded as eventually liable to be experienced in the present life, they comprehend and coincide with the aggregate multitude of the pains and pleasures belonging to the other sanctions: in so far as they are regarded as liable to be experienced in a life to come, they are inconceivable and indescribable as the Being from whose hand they are expected to emanate.
Operation of the physical sanction, for and against correctness and completeness in testimony.
In the case of the political, popular, and religious sanctions,—among the pains and pleasures respectively belonging to them, there is not one, the expectation of which is not capable of operating in the character of an efficient cause of, or at least a security for, correctness and completeness in testimony; since, in all these several instances, the production of the pain or pleasure in question, in the bosom of the supposed witness, is the result of a will different from, and extraneous to, his own—the will of some other being or beings; and in each case, among the several pains and pleasures, the production of which is in the power of the being in question, it depends upon his will to apply, in the case in question, whichsoever of those forces he pleases.
In the case of the pains and pleasures of the physical sanction, in so far as applying to the purpose here in question,—no such extraneous will, nor indeed any will at all, taking any part in their production,—the only pain or pleasure that has place is one that grows of itself out of the nature of the case. This, it will be seen, is a pain only; and this pain, the pain of labour (mental labour) or exertion: and the motive corresponding to this pain, is the love of ease.
To relate incidents as they have really happened,* is the work of the memory: to relate them otherwise than as they have really happened, is the work of the invention. But, generally speaking, comparing the work of the memory with that of the invention, the latter will be found by much the harder work. The ideas presented by the memory present themselves in the first instance, and as it were of their own accord: the ideas presented by the invention, by the imagination, do not present themseves without labour and exertion. In the first instance come the true facts presented by the memory, which facts must be put aside: they are constantly presenting themselves, and as constantly must the door be shut against them. The false facts, for which the imagination is drawn upon, are not to be got at without effort: not only so, but if, in the search made after them, any at all present themselves, different ones will present themselves for the same place: to the labour of investigation is thus added the labour of selection.
Hence an axiom of mental pathology, applicable to the present case—an axiom expressive of a matter of fact, which may be stated as the primary and fundamental cause of veracity in man. The work of the memory is in general easier than that of the invention. But to consult the memory alone in the statement given, is veracity: mendacity is the quality displayed, so far as the invention is employed.
The love of ease—in other words, the desire of avoiding the pain of mental exertion—is therefore a motive, the action of which tends, on every occasion, with more or less force and effect, to confine the discourse of a man within the pale of truth.
But the pain which in this case acts on the side of veracity,—which acts as a sort of punishment attaching upon the first tendency and leaning towards the path of mendacity—which acts, therefore, as a sort of restrictive force, confining the discourse within the path of truth,—is a punishment which arises immediately and spontaneously out of the offence; which arises of itself, without need of the interposition of the will of any other being, divine or human, to apply it, as in the case of the other three sanctions. The sanction to which this pain, this motive, belongs, is therefore that which has been termed the physical. It is the same sanction by which a man stands prohibited from striking his hand against the edge of a knife, or holding it in the flame of the candle.
Such would be the case, even if the chance in favour of correctness rested on no other basis than the influence of the physical sanction, as above described, taken by itself. But when the influence of the moral sanction is brought upon the carpet, the disproportion receives an ulterior increase.
The act of reporting as true that which is not true,—such a transgression of the line of truth, even when not attended with a consciousness of the departure, is a mode of conduct against which the moral sanction points its censure with a certain degree of force: much more, when the departure is regarded as attended with that vicious consciousness. The labour of invention, consequently, is increased: since the story must be framed, not only so as to answer a present purpose, by deceiving the person to whom it is addressed, but, if possible, so as not to draw down upon the inventor the pain of public disesteem, by being subsequently discovered to be false.
The axiom above brought to view is not a mere barren speculation, but of very high importance with reference to practice. Applied to English law, it will serve to justify the admission of a class of evidence which of late years has been admitted, but which in former times had been excluded: I mean the testimony of non-adults of a tender age. Is the child sufficiently instructed in regard to the nature and consequences of an oath? Upon the ground of this question has the decision, with regard to the admission or rejection of the child’s testimony, been customarily placed. In another place, I shall have occasion to show the fallaciousness of such ground. In return to the suddenly put and unforeseeable question that will be respectively grounded upon each preceding answer,—is it, under these circumstances, most likely that the memory, or the invention, shall on each occasion be the fund to which, for the matter of each respective answer, he will have recourse? Of the two, this would seem to be the more reasonable question.
In the matter of fact of which the above axiom is the expression, we already find a cause adequate to account for the predominance of veracity over mendacity—a cause, of the due consideration of which, the natural tendency will be to confirm or increase our confidence in human testimony, independently of whatever security for veracity may be afforded by the influence of the three other sanctions.
Children—(says a proverb one sometimes hears) children and fools tell truth. There is something offensive in the proverb: there is a sort of immoral turn in it—a sort of intimation, as mischievous as it is false, of a natural connexion between veracity and folly. On the first mention of it, one conceives it to have had for its author a species of knave, who, as such, is a species of fool; for, though all folly is not knavery, yet there is no knavery that is not folly. When the covering of immorality and folly is stripped off from it, its foundation, however, appears to be laid in nature. It had been observed as a matter of fact, that veracity in man was more frequent than mendacity—truth than falsehood; that this frequency was particularly great among such classes of persons as, by the complexion of their understandings, were less sensible to the action of a distant interest—such as that sort of interest commonly must be, by which, on occasions of importance, such as those which come before a court of justice, a man can be influenced to step aside from the path of truth. By the first impulse—by the impulse of the universal principle above delineated—by a sort of instinctive impulse, the line in which a man’s discourse is urged is invariably the line of veracity—of truth: it is only by reflection—reflection on the distant advantage supposed to be obtainable by falsehood, that a man’s footsteps can be turned aside out of that line.
Whatsoever be its direction—in the absence of all rival powers, the love of ease, minute as is the greatest force which on these trivial occasions can be applied by it, is in every instance omnipotent—the power that worketh all in all.*
But,—that, in every instance, to the insuring of verity in contradiction to falsity, the force of this commanding principle applies itself;—to this proposition, before it can be brought to an exact coincidence with the line of truth, some limitation, and that not an inconsiderable one, will require to be applied.
To prevent the testimony from being false in toto, will indeed require less exertion than the opposite course: but to render it, and in every circumstance, a correct and complete picture of the fact, will at the same time frequently require more exertion than, without some degree of uneasiness, could be bestowed. In proportion as the balance inclines to this side,—here then, supposing the result to depend on the physical sanction alone, here would be a mixture of truth and falsehood.†
The result is, that, under the physical sanction (supposing its force the only force in action,) so far as depends upon will, falsehood in toto would never have place; falsehood in circumstance would be frequent: truth would, in every case, constitute the ground; but that ground would be frequently receiving a tincture of falsehood: and the more complex and extensive the ground, the deeper and more extensive would the tincture be naturally apt to be.
Thus far, no interest is supposed to have place, other than that weak, though, in default of all opposing interest, adequately-operating interest—the interest created by the aversion to labour. But let the case be open to any other interest—to any other motive—acting in a sinister direction; there is not any species of interest so weak, the force of which is not capable of existing in a degree sufficient to overcome the correctly-acting force of the physical sanction, and in such sort that falsehood, even in toto, shall be the result. All these motives, however, act more frequently on the side of truth than on that of falsehood.
The more particularly the nature of human intercourse comes to be considered, the more thoroughly we shall be satisfied that it is not by the general and standing interests alone, but by the particular and fleeting interests of each moment also, that the property of truth is secured to the general tenor of human discourse. In particular, it is only by making known, and that truly, something that he thinks, that a man can obtain what he wants. For a number of years, reckoning from the commencement of the power of locomotion, we are all necessarily subject to the perpetual exertion of the power of command. But the power of command can obtain its gratification on no other terms than by the most correct adherence to the line of truth. By every act of command, a desire is made known; and, in proportion as the desire fails of being truly stated, it is certainly frustrated.
Operation of the moral or popular sanction, for and against correctness and completeness in testimony.
Happiness, in almost all its points, is, in every individual, brutes scarcely excepted—the most brutish savages not excepted, more or less dependent upon knowledge; the word knowledge not being on this occasion confined in its application to the knowledge of those recondite facts which belong to the domain of science. But in all cases, except that of a life carried on from beginning to end in a state of perfect solitude, knowledge depends in the largest proportion upon testimony: and except in those cases of comparatively rare occurrence, in which falsehood itself serves to lead to truth,* it is only in so far as it is expressive of truth, that testimony is productive of knowledge.
All the confidence we can ever have, or hope to have, in mankind, either under the law or without the law,—all the reliance we can place on the expectation we entertain of any of the innumerable and daily services, obligatory or free, which we stand in need of for the sustentation and comfort of our existence,—all depends, by a connexion more or less close and immediate, on the preponderance of men’s disposition towards the side of veracity and truth.
The force of the moral or popular sanction coinciding in the main with the force of general interest,—hence it is, that, throughout the whole field of intercourse between man and man, in every state of society (the rudest not excepted,) the moral or popular sanction is, with only here and there a casual exception, found in action constantly on the side of truth.†
Of the degree of force with which the moral or popular sanction acts in support of the law or rule of veracity, a more striking or satisfactory exemplification cannot be given, than the infamy which so universally attaches upon the character of liar, and the violent and frequently insupportable provocation given by any one who, in speaking to, or in the presence of another, applies to him that epithet.‡
There has not, I suppose, existed anywhere, at any time, a community,—certainly there exists not among the civilized communities with which we have intercourse, one in which the appellation of a liar is not a term of reproach. Among the most egregious and notorious liars that ever existed, I cannot think that there can ever have been a single individual to whom it must not have been a cause of pain as often as it happened to him to hear the appellation applied to himself—to whom it would not have been matter of relief and comfort, had it been possible for him to have disburthened his character from the load of it.
Such is the power of the moral or popular sanction, when applied to extrajudicial testimony—to that sort of discourse which has place between man and man in the miscellaneous intercourse of life.
But the force with which it acts in behalf of truth is applied with much more energy, as well as with much more constancy, when (the importance of truth being the same in both cases) the testimony is of the judicial kind—delivered on a judicial occasion—or even, when not delivered on a judicial occasion, if delivered in contemplation of its being eventually applied to a judicial purpose.*
In the main, and upon the whole, the force of the moral or popular sanction acts in a direction favourable to general happiness and virtue. In the main, accordingly, the direction taken by this same force is favourable to that particular branch of virtue which consists in veracity.
But, to the proposition by which this predominant tendency is announced, ere its limits can be brought to coincidence with the line of truth, considerable exceptions will require to be made.
One capital exception has for its cause the repugnancy—the inbred and irremovable repugnancy, that exists between the aggregate mass of the precepts by which it prescribes good conduct in general and prohibits vice in general, and that particular precept by which it prescribes veracity, and reprobates the opposite vice.
Avoid vicious conduct—conduct prejudicial to the general interests of the community of which you are a member, yourself included; avoid vicious conduct, or the ill opinion, and consequent ill will and ill offices, of the community, will attach upon you. Avoid vicious conduct in every shape, and in the several shapes of mendacity, and falsehood through culpable inattention, among the rest.
Thus far we have the result of its action on the side of virtue. But now comes its action on the side of vice. Whatsoever vicious conduct it has happened to you to fall into, conceal it at any rate from the public eye: for it is only in proportion as it falls within the compass of the knowledge or suspicion of the public, that the evil consequences held up to view will take place. But, by him by whom vicious conduct is confessed, it is not concealed—by him by whom, after it has taken place, it is denied to have taken place, it is, or may be concealed, in so far as it is in the power of mendacity to conceal it.
No really existing person could with truth and propriety be represented as delivering on one and the same occasion these repugnant precepts. But if the word precept be on this occasion employed, and the form of a precept given to the discourse in which it is employed, it is in pursuance of one of those unavoidable metaphors to which language is so frequently compelled to have recourse. What there is of strict reality in the case, consists of two motive forces—two interests, acting at the same time in opposite directions on the human mind: and between these motive forces the opposition in question may be seen actually to have place. By confessing what he has done, the individual in question would expose himself to shame: but by denying what he has done, he also exposes himself to shame.
Acted upon as he is by these two opposite forces,—by which of them will the line of his conduct, in regard to testimony, be determined? By that one of them by which, at the moment in question, the interest of the greatest value is presented to his eyes,—certainty and proximity, those two never-to-be-over-looked dimensions, being taken into the account of value.
On this occasion (let it not be forgotten) the question is,—not what is most fit and proper, but what is most likely, to be done. The dilemma be the occasion what it may, is a distressing one. By one only course may the dilemma be avoided. Avoid vice in other shapes, and the temptation to plunge into mendacity for the hope of escaping from that shame which follows at the heels of vice, will not assail you: such is the advice in which the virtue of veracity joins with the other virtues.
Of the other exceptions to the truth-promoting tendency of the moral sanction, the origin may be seen in the opposition between particular interests, and general. The force of the moral sanction, of the popular sanction, taken in its greatest extent, is composed of the general interests of the community at large. But, in every political community, smaller communities or aggregations of individuals will be found; each aggregation having an interest common to all its members, but opposite to that of the all-comprising aggregate to which they all belong; and to every such partial, though still composite interest—to every such section of the community, corresponds a section of the popular or moral sanction, and of the moral force with which it acts.
A sort of honour is to be found among thieves. So it has often been observed, and truly: but this honour is neither more nor less than a disposition to pursue that interest—to be impelled by that detached portion of the general moral force, by which the members of the predatory community in question are bound together. The whole community has its popular or moral sanction upon an all-comprehensive scale: the several communities of thieves, smugglers, and all other communities having particular interests acting in opposition to the general interest—all those, recognised or not recognised as being included in the more comprehensive class or denomination of malefactors,—have each of them a sort of section of the popular or moral sanction to itself.*
It is the interest of the community at large that truth alone should be uttered; that the language of mendacity and deception should be abstained from on every judicial occasion, and on almost every other occasion: abstained from, although, and for the very reason that, the commission of it threatened to be beneficial to the particular interests that act in opposition to the general interests:—to the common interests, for example, of thieves and smugglers.
It is the interest of the community that truth should be revealed, as often as the disclosure of it promises to be conducive to the bringing down of punishment upon the heads of thieves and smugglers. But it is the interest of thieves and smugglers that truth should never be revealed, but always concealed, as often as the disclosure of it threatens to be conducive to the bringing down punishment on the heads of thieves or smugglers. Among these malefactors, therefore, the section of the moral sanction, which applies to testimony, prescribes mendacity while it prohibits, and, as far as may be, punishes veracity, as an act of vice and treachery.
In any community composed of thieves or smugglers, is any act of depredation committed by one member to the prejudice of the rest? The force of the moral sanction changes now its direction, though not its nature: the force of this section of the popular sanction now joins itself to that of the whole;—mendacity is recognised as a vice—veracity, as a virtue.
The interest which these communities of malefactors have in mendacity, would not, however, have succeeded in perverting the moral feelings of the great bulk of the community, who have no interest but in the universal prevalence of veracity, had not the sinister interest of thieves and smugglers found to this purpose a powerful auxiliary in the sinister interest of lawyers.
Under every system, every mercenary lawyer—under the fee-gathering system, every lawyer without exception—has an interest, as unquestionably, though not as uniformly, opposite to the general interest, as that which forms the bond of union in communities of thieves or smugglers. Under that system, every lawyer without exception—the whole fraternity together, with the judges at their head—have a particular interest in common with the interests of malefactors and wrongdoers of every description, not excepting thieves and smugglers. It is their interest that lawsuits,—understand those and those alone which are pregnant with fees,—lawsuits, by whatsoever name distinguished—action or prosecution—may abound to the utmost pitch. That prosecutions may abound, it is their interest that crimes of all sorts may abound: that actions may abound, it is their interest that wrongs of all sorts may abound; as well those wrongs of which the hand of the judge is the pretended avenger, as those of which it is the unacknowledged instrument. It is their interest that wrongs of all sorts be sometimes punished, lest plaintiffs be discouraged, and the mass of litigation and profit be diminished at one end: it is their interest that wrongs of all sorts remain sometimes unpunished and triumphant, lest the mass of litigation and profit be diminished at the other end. It is their interest that every modification of vice, by which litigation with its profit can be produced, may abound; and thence, in a more especial degree, that mendacity, the instrument and cloak of every vice, may abound.
Neither to thieves nor to smugglers, nor to wrongdoers in any other shape than that of judges, has any such power been given as that of granting impunity, and, by means of impunity, licence, to the vice of lying: accordingly, neither by thieves, nor by smugglers, nor by wrongdoers of any other denomination, has any such licence been ever granted.
Judges, under favour of the oscitancy or connivance of the legislature, have given to themselves that power: and such is the use they have made of it, that the whole system of judicial procedure is one continued tissue of lies—of allowed, protected, rewarded, encouraged, and even necessitated, lies.
In this instance as in every other, power, in proportion to its magnitude, serves as a shield as well to every vice as to every crime. Contempt is that modification of the punishment of the moral sanction, that is more particularly attached to the character of liar,—and power, in proportion to its magnitude—power, though it affords not protection against hatred, affords it effectually against contempt.
Hence it is, that, as well the mercenary advocate, whose trade and occupation consist everywhere in the sale of lies, as, under the fee-gathering branch of the English system of procedure, the fee-fed judge, who deals in the same ware,* remain untouched by that infamy, with which, if the dictates of the popular sanction coincided uniformly with the dictates of general utility, they would be covered; and by which the occasional and unprivileged liar, whose lies are many hundred times less frequent, is overwhelmed. The power constitutes a vantage-ground, by which the head of him who is stationed on it is raised above the flood in which the undistinguished, but less guilty herd, are drowned.†
Thus, by the incessant action of comparative knowledge upon invincible ignorance, has the force of the moral of popular sanction been divided and turned against itself. In correspondence with this schism, the aggregate mass of mendacious testimony has been divided, in the contemplation of the public, into two parcels:—whatsoever portion the judge has found it more for his advantage to punish than to permit or to reward, remains in a state of proscription as before, and is continued under the denomination of vice: whatsoever portion he finds it more for his interest to reward or to permit than to punish, is regarded either with indifference or with approbation, and is ranked under the denomination either of innocence or of virtue.
Mendacity is not only permitted, but in some cases properly permitted, by the moral sanction. That cases exist in which a departure from truth is, and ought to be, either prescribed, or at least allowed, by the moral or popular sanction considered in its true and largest sense, is out of dispute. Being in many instances cases of considerable intricacy and delicacy, it happens fortunately, that, to the purpose of the present inquiry, any very particular description of them is neither necessary nor pertinent.
1. In some cases, departure from truth is prescribed by the moral sanction as a duty. Such are all those in which mischief to another would be the certain or probable effect of verity, while from falsity no evil at all, or at least no equal evil, will, with equal probability, be the result: as, if a madman or assassin, with a naked weapon in his hand, asks whether his intended victim be not there, naming the place where he actually is.
2. To this same head may belong falsehoods of humanity or beneficence: as when a physician, to save pain of mind, gives hopes which he does not entertain himself.
3. To this same head may be referred what may be termed falsehoods of urbanity; which is but humanity or beneficence applying itself to interests of inferior moment: as where, on being interrogated by Artifex concerning the degree of estimation in which he holds a production of Artifex,—for fear of applying discouragement, Crito gives for answer, a degree higher than that which he really entertains: and so in regard to conduct in life, taste, and so forth.
4. As to cases in which departure from truth is allowed without being prescribed. A footing on which this matter is commonly placed seems to be, that, where a man has no right to the information sought by him, the information need not be given to him. But granting, that were probity, or the duty of one man to another, the only consideration to be attended to, a liberty thus ample might and would be allowed,—the latitude will be found to receive very considerable limitation, when those considerations are attended to, which concern a man’s self-regarding interest, and belong to the head of prudence.
So dishonourable and pernicious to a man is the reputation of habitual or frequent falsity—so honourable and so valuable to him that of never having violated truth—that, without the least prejudice to any other individual, by even a single departure from veracity it may happen to a man to do irremediable mischief to himself.
The wound thus given by a man to his own reputation will be the more severe, the more intense and deliberate the averment by which the truth is violated: and thus it is, that after a falsehood of humanity or urbanity, uttered with a faint or ordinary degree of assurance,—if urged and pressed, stronger and stronger asseverations being on the other part called for in proof of the verity of the preceding ones, a man may, for the preservation of his own character, find it necessary to give up the enterprise of humanity or urbanity and declare, after all, the naked truth.
A disquisition of no small length and intricacy might be employed on the subject of the exceptions proper to be made to the general rule of verity: a disquisition, curious and interesting at any rate; but, whether subservient or not upon the whole to the interests of morality and happiness, would depend upon the manner in which it was conducted.
Operation of the legal sanction, for and against correctness and completeness in testimony.
The force of the moral sanction was found insufficient to secure good conduct in general: it was found necessary to add to it the force of law.
The force of law itself cannot be applied but through the instrumentality of testimony; and testimony is of no use but in so far as it leads to truth. The same deficiency which produced the necessity of adding the force of the legal to that of the moral sanction, for the purpose of securing good conduct in general, produced the necessity of applying the same auxiliary force to the particular purpose of securing that particular modification of good conduct which consists in attaching the good qualities of veracity and verity to whatsoever testimony comes to be delivered on a judicial occasion or for a judicial purpose.
Many and extensive are the portions of the field of law, in relation to which the popular sanction has nowhere as yet fashioned,—nor (till it has received that sort and degree of improvement which it may yet for a good while have everywhere to wait for) will it fashion—its dictates, so as to bring them to an exact coincidence with those of the principle of general utility. In relation to those same portions of that field, the regulations of the legal sanction are naturally and generally found to approach nearer than those of the popular sanction to so desirable a coincidence. The quarter in which this deficiency is most conspicuously observable, is that which regards those transgressions which are properly termed public; viz. such offences, by the mischief of which, though it be seen to hover over the heads of the whole community, no assignable member of that community is seen to be afflicted.*
One of the advantages of the political, as compared with the moral sanction, is the greater constancy with which it can avail itself of interrogation—an operation which in many instances is indispensably necessary to the verity of testimony, more particularly in so far as concerns completeness. In some instances, this security may chance to have been applied in such sort that the force of the moral sanction may have had the benefit of it; some individual or individuals, willing to apply this instrument and so circumstanced as to be able to apply it with effect, being at hand at the moment at which the testimony is delivered. But the application of this instrument is an act of power: and it is only in the hands of the administrator of the force of the legal sanction—it is only in the hands of the judge, that power of this description is sure at all times to be found.
The force of the political sanction, like that of the moral sanction, may be considered to be one of the standing causes of veracity—standing counter-forces, acting in opposition to mendacity. Like that of the moral sanction however, and from the same cause, it is capable of being by accident brought to act on the adverse side.
Punishment, legal punishment, is, in every civilized country, annexed to mendacity in judicature. But wherever the effect or tendency of true testimony would be to subject the deponent to any obligation of the burthensome kind,—whether on the score of punishment, satisfaction to be rendered to a party injured, or right to be conferred on the adverse party,—so much of the occasional force of this sanction is made to act in opposition to its regular and standing force. In every such case,—abstraction made of every other species of motive,—whichever of the two antagonizing forces of the same sanction, its standing force and its occasional force, happened on each occasion to be the greater (certainty and proximity, as well as intensity, of the punishment, being taken into account on both sides,) on that side human conduct would be sure to be found. If, for example, the offence for which a man were under prosecution, was a species of fraudulent obtainment, the punishment of which consisted of transportation for three years,—while the punishment for the perjury, in case of his answering falsely while under examination on that occasion, was transportation for seven years,—and the probability of conviction appeared exactly the same in both cases; abstraction made of all other motives, veracity in this case ought, in every instance, to be regarded as certain: while on the other hand, all things remaining as before,—if, instead of transportation for three years, the punishment for the fraud were transportation for fourteen years, perjury might in every instance be set down for certain in this case, as veracity was in the other.
This is the casual operation of the legal sanction, to the prejudice of truth: but many instances there are, in which it is made to operate in that mischievous direction by design.
If the administrator of the force of the legal sanction had all along and everywhere been faithful to his trust, the application made of that force to judicial testimony would have been uniform and proportionable: applying itself to all cases in which it happened to such testimony to be delivered, and in a degree regulated by the quantity of force which the opposing force to be surmounted, and the importance of the case (that is, the magnitude of the mischief liable to take place in the event of falsity on the part of the witness, and consequent deception and misdecision on the part of the judge,) required.
But, under every civilized government that has had existence, the administrator of the legal sanction has, as will be seen, been in this particular unfaithful to his trust. Everywhere, at first by the inexperience, and consequent ignorance and unskilfulness—afterwards by the oscitancy or corrupt connivance of the legislator,—the formation of the law of evidence has, along with that of so many other branches of the law, to so immense an extent been abandoned to the judge. Left without allotted recompence by the indigence, the penuriousness, or the improvidence of the legislator, and at the same time with powers adequate to the practice of extortion without stint, the judge has in every country converted the sword and scales of justice into instruments of fraud and depredation.
Having been suffered to convert all judicial demands into a source of profit to himself, he has applied himself to the multiplication of unjust demands: having been suffered to convert all judicial defences made before himself into a source of profit to himself, he has applied himself to the multiplication of unjust defences: having been suffered to convert all judicial expense into a source of profit to himself, he has applied himself to the multiplication of judicial expenses: having been suffered to convert all judicial instruments, and all judicial operations, into sources of profit to himself, he has applied himself to the augmentation of the magnitude and multitude of judicial instruments, and of the multitude of judicial operations. Beholding in delay an encouragement to unjust demands as well as unjust defences, and at the same time, on the occasion of all demands and defences without distinction, a source of incidents which beget occasions or pretences for additional instruments and additional operations, he has applied himself in like manner, with equal energy and success, to the multiplication of delays.
Beholding in mendacious statements a pretence for the reception and entertainment of unjust demands, of unjust defences, of useless expenses, of needless and useless instruments and operations, and of groundless delays (sources of those needless and useless expenses, instruments, and operations,) he has occupied himself in cherishing with one hand that mendacity, which he has been occupied at the same time in punishing with the other. Attaching punishment to those unprivileged lies, in which individuals at large, in the character of suitors, or in other characters, have been concerned by themselves, he has attached reward to those lies in the utterance of which they have employed, as accomplices or substitutes, his subordinate instruments and partners: and, lest with all these lies there should not be yet enough,—having been suffered to convert his own lies into a source of profit to himself, he has multiplied his own lies, lies signed by his own hand, without limit and without shame.*
In holding up therefore to view the force of the legal sanction in the character of a tutelary force, utterance was given to a general rule, of a nature not to be reduced within the limits of truth till after it had been cut into by extensive and numerous exceptions: for, if it were to be held up in the character of a force uniformly and faithfully exerted on the side of truth, regard would be to be had not to what it is, or ever has been, but to what it ought to be, and is so generally, though so erroneously, supposed to be.
I say, supposed to be; for among the delusions which inbred mendacity has, from first to last, been occupied in propagating with so much industry and success, in none has it been more completely successful than in persuading the people, in contradiction to their own eyes and their own feelings, to mistake impunity for purity, and prostrate themselves before the den of mendacity and of depredation, as if it were the sanctuary of truth and spotless justice.
The effect of this perversion of the legal sanction, in occasioning a correspondent perversion of the moral sanction, has been brought to view in the last section. But this is not the only ravage committed by an abuse of the legal sanction upon the force of the moral, even in that part of the field that belongs to testimony.
To an abuse of the power of the political sanction, the nature of things admits of no other check than the resisting force of the moral or popular. A determination to destroy this only check, and thus render the power of the political sanction, by whatsoever vile hands wielded, completely arbitrary, has been not only indefatigably prosecuted, but openly avowed. Judges have been found so insensible to the voice of censure, or so secure of not incurring it, as to maintain for law, and thus to establish for law, that,—when misconduct in any shape is, in any printed and published or written and communicated paper, charged upon a man in power, themselves not excluded,—the truth of the charge, so far from being a justification, shall be deemed to operate as an aggravation; and so far as depends upon themselves shall operate in aggravation of punishment—of that punishment by which, and by which alone, at the command of shameless despotism, the quality of guilt is impressed upon meritorious innocence.
That the triumph over truth may be the more complete, a definition of the sort of instrument called a libel is said to have been given—a definition which requires but to be consistently acted upon, to level whatsoever difference may exist between the constitutions of Britain and Morocco. A libel is any discourse, by which, it being put into writing and made public (whatsoever is to be understood by public,) the feelings of any individual are hurt, injured, violated, wounded, or whatsoever other word it be, that, to answer the purpose of the moment, is presented by the powers of harmony to the rhetoric of despotism. Not that, by this law, the manufacturers of it would wish to be understood as the less friendly to the interests of truth and liberty: for, so often as twelve men, under the name and character of petty jurymen, can be found to join with one voice (speaking upon their oath) to declare their persuasion that the feelings of a malefactor receive no hurt from his seeing himself held up to view in that character—in other words, that it is matter of indifference to a man, guilty or not guilty, whether he be thought criminal or innocent—in a word, that, whether innocent or guilty, man in general has not any such sense belonging to him as the sense of shame,—so often are they at liberty to save him who has been ruined by prosecution, from being ruined over again by punishment.
Towards destroying altogether the force of the moral sanction, the most extensively operating security for individual good conduct, and the only effectual security against the despotic tendency of power—towards rooting out of the human bosom all regard for truth, and at the same time for liberty and virtue,—it seems not easy to say how, with any encouragement from public blindness, it would be possible for the artifice or audacity of usurped legislation to go further.
In such a state of things—under a legislation that connives at such usurpation, and a people that submit to it without remonstrance,—it is a question not altogether exempt from difficulty, whether the force of the moral sanction is or is not with propriety to be numbered among the powers by which human conduct in general, and in particular so far as regards the truth of testimony, is influenced and directed. To-day, yes: and so long as the acquiescence under such law continues to be regarded as short of certainty: to-morrow, perhaps not: to a certainty, not a single moment longer than the design manifested by such doctrines shall continue unaccomplished.
Operation of the religious sanction, for and against correctness and completeness in testimony.
In the case of this sanction, as of the others, its utility, in the character of an efficient cause of truth in testimony, depends partly upon the direction in which, partly upon the degree of force with which, it acts.
In respect of its direction, nothing can be more favourable, more steadily and uniformly favourable: provided always, that in the case of book-religions, the original and authentic repositories of the rule of action be taken for the standard, not any glosses that in later ages may have been put upon them.
On considering the differences—the very wide differences, observable between the several book-religions in other respects,—an observation that would be apt enough here to present itself is, that in this respect likewise, any proposition that were to be predicated of them in the lump, would possess but a feeble chance of being true.
But in this particular, causes, viz. interests and motives, being in all religions the same, effects, viz. precepts and other actions, will naturally, not to say necessarily, fall into the same coincidence. Taking in a certain sense for the author of the religion, the penman by whom the discourses constitutive of the matter of it were committed to writing,—in the instance of every one of them it may with equal truth be observed, that his interest, in respect of the object he had in view, required that the disposition to veracity should, on the part of his adherents, be as strenuous and as uniform as by any means it could be made.
In the case of a leader of this sacred, as in the case of a leader of any profane, description, the success of his designs would be in no small degree dependent upon the correctness of such information, of such testimony, as, on such an infinite variety of occasions, that design might lead him to require at their hands.
In the Jewish religion, the story of the leprosy of Gehazi—in the Christian, the story of the sudden death of Annanias and Sapphira—may serve for illustration.
If there were any decided difference, the steadiness of the religious sanction to the cause of truth would be found more rigorous and entire, not only than that of the legal sanction, of which the unsteadiness has above been brought to view, but even than that of the moral. The moral sanction acknowledges the exceptions that have been seen: it has its falsehoods allowed, if not prescribed, of urbanity—its falsehoods of humanity—and even its falsehoods of duty.
The religious sanction,—if the Jewish (which to a great though undefined extent is at the same time the Christian) be taken for an example, and the text of the sacred writings be taken for the standard of that religion,—acknowledges no such exceptions. When Jephthah, the chief of that religion, having vowed in case of victory to sacrifice to the Lord the first object that presented itself, and having beholden in his own daughter that first object, “did with her according to his vow,” it was for no other reason than that he had said upon his oath that he would do so, though unquestionably without having, in so saying, had her in his thoughts. Not only humanity, but duty, even parental duty, were on this occasion held to be considerations of inferior moment, when compared with the duty of adherence to truth, that duty having been reinforced by the ceremony of a vow—of that solemn appeal which is common to oaths and vows.
Though the text of the sacred writings, the text recognised in all ages as the standard of obedience, remains in all ages the same, or nearly the same, the interpretation put upon it varies from age to age: and, in each age, it is by the interpretation put upon it in that age, that the effectual direction taken in that age by the religious sanction—the practical effect produced by it, is determined. The age in which the text of the sacred writings was first committed to writing, was not, in the instance of any of the book-religions, an age in which any such qualities as those of precision, accuracy, and particularity of explanation, belonged in any considerable degree to the public mind. To reduce the precept to a state adapted to practice, it has become more and more the custom to ful up from the precepts of the moral sanction, the reputed deficiencies manifested in these particulars by the religious sanction. In a delineation which at this time of day should come to be given, of what the religious sanction prescribes in relation to truth and falsehood, the exceptions above mentioned as applied by the moral sanction to the general requisition of veracity and verity—the particular allowances as well as counter-prescriptions made by the moral sanction, in favour of the several classes of falsehoods designated as above by the several appellations of falsehoods of duty, falsehoods of humanity, and falsehoods of urbanity,—would probably not be omitted.* But, whether proper or otherwise, it is in the law of the moral sanction only, not in the law of the religious sanction, as delivered in the text of either the Jewish religion or the Christian (not to speak of the Mahometan,) that any of these exceptions are to be found.
Cases, however, in which the force of the religious sanction has operated on the side of perjury, even in Christian countries, are neither impossible, nor without example. Paris, no longer ago than the middle of last century—Paris, so lately, not to say at present, the centre of unbelief—yielded a batch of false miracles, regularly attested, vying in extraordinariness with the less-regularly-attested prodigies of Jewish history. In the testimony by which these false miracles were proved, it is difficult, if not impossible, to say how much there was of mendacity—how much of simple incorrectness, the honest work of the imagination. That mendacity was not wholly without its share, can scarcely admit of doubt. True miracles are not wanting (says a man to himself on this occasion.) true miracles have not at least been wanting, on this our side, the side of sacred truth. But unhappily the true are not quite sufficient; sufficient for other times, but unhappily not for the present incredulous age, in which, somehow or other, the source of miraculous evidence appears to have run itself dry. Profiting by the occasion, let us do what depends upon us towards supplying the deficiency. Truth must indeed be departed from: but the end will sanctify the means. What end can ever approach to it in importance? and falsehood, the instrument we mean thus to sanctify, as Pagan temples have been sanctified by being converted into churches, how often has it not been applied to the most flagitious, the most impious ends!
Of all the religous codes known, the Hindoo is the only one by which, in the very text of it, if correctly reported, a licence is in any instance expressly given to false testimony, delivered on a judicial occasion, or for a judicial purpose: and in this instance, among the cases pitched upon for receiving the benefit of the licence, are some which, viewed through an European medium, will be apt to appear whimsical enough.
Cases, some extra-judicial, some judicial, and upon the whole in considerable variety and to no inconsiderable extent, are specified, in which falsehood, false witness, false testimony, are expressly declared to be allowable.
1. False testimony of an exculpative tendency, in behalf of a person accused of any offence punishable with death. Three cases, however, are excepted;—viz. 1. Where the offence consists in the murder of a Bramin; or 2. (what comes to the same thing) a cow; or 3. In the drinking of wine, the offender being, in this latter case, of the Bramin caste.*
“Whenever a true evidence would deprive a man of his life,—in that case, if a false testimony would be the preservation of his life, it is allowable to give such false testimony; and for ablution of the guilt of false witness, he shall perform the Poojeeh Sereshtee; but to him who has murdered a Bramin or slain a cow, or who, being of the Bramin tribe, has drunken wine, or has committed any of these particularly flagrant offences, it is not allowed to give false witness in preservation of his life.”
In the representation of the other cases, scarce a word could be varied, without danger of misrepresentation: word for word they stand as follows:—
“If a marriage for any person may be obtained by false witness, such falsehood may be told: as upon the day of celebrating the marriage, if on that day the marriage is liable to be incomplete, for want of giving certain articles, at that time, if three or four falsehoods be asserted, it does not signify; or if, on the day of marriage, a man promises to give his daughter many ornaments, and is not able to give them, such falsehoods as these, if told to promote a marriage, are allowable.
“If a man, by the impulse of lust, tells lies to a woman, or if his own life would otherwise be lost, or all the goods of his house spoiled, or if it is for the benefit of a Bramin, in such affairs, falsehood is allowable.”
To the religious sanction—consideration being had of the undoubted magnitude of its influence on some occasions—on an occasion of this importance and extent, a place cannot be altogether refused. Yet, if,—in preference to theories, however generally received, and rendered plausible by the collateral experience just mentioned—experience in the exact direction of the case here in question, and that no less unquestionable than the other, be admitted as the test,—the more closely it is scrutinized into, the less efficient in the character of a security for the truth of testimony in all ways taken together, or even in the character of a security against wilful and self-conscious mendacity, will it be found.
To judge of the real and proper force of any power, try it, measure it, not when acting in combination with other forces, but when acting alone. If, as applied to forces of the physical class, the propriety of this rule be clear beyond dispute, it will scarcely be less so when applied to any force of the psychological class.
That, when the force of the religious sanction is accompanied and conjoined with the two human forces, the force of the moral and legal sanctions, or even with either of them alone, the force of these powers united is in a high degree efficient—so much so, as to throw into the state of exceptions taken out of a general rule the cases of its failure,—is out of dispute. But take a case—take any case, in which it may be seen to come into the field alone, and without support from either of those indisputably powerful coadjutors, the scene will be found to experience a total change.
If there be a mode of conduct which, being clearly and universally understood to stand prohibited by the force of the sanction in question (viz. the religious,) is nevertheless, generally, and as far as can be seen, universally, or almost universally, practised,—so far as concerns the prevention of that mode of conduct at least, the body of force in question, however composed, cannot but be acknowledged to be in a correspondent degree inefficient. If, in the formation of that body of force, the force of all these sanctions were comprised, the degree of inefficiency thus demonstrated would extend to all three: if the force of one of the three, and that one only,—it is to that one that the demonstration of inefficiency will stand confined.
If, the mode or species of conduct in question being mendacity, wilful and self-conscious falsehood,—the utterance of that falsehood be accompanied by a more than ordinary and most ample degree of deliberation,—the demonstration of the inefficiency of the sanction in question will be the more conclusive.
If either the practice of this wilful falsehood, or what to this purpose comes to the same thing, the approbation—approbation avowedly and publicly bestowed upon it—be the practice, not of men taken promiscuously from the herd, but of men carefully and anxiously selected for the occasion, under the persuasion of their being in a more than ordinary, in even the highest, degree, sensible to the influence of this sanction—the proof of the inefficiency of this sanction will be seen to possess from these circumstances a still higher force.
The examples in which this proof of the inefficiency of the religious sanction in respect of the prevention of wilful and deliberate falsehood stands exhibited, may be comprised under the following heads:—
1. Cases in which—under the influence of a manifestly-operating sinister interest in the shape of wealth, power, dignity, or reputation—such declarations of opinion are made, as, from the nature of the facts asserted, cannot, consistently with the nature of the human mind, be in all points true; but without any particular proof of falsity operating in the case of one such false declarer more than another. To this head may be referred all solemn declarations of opinion on the subject of controverted points respecting facts out of the reach of human knowledge, delivered in the shape of pre-appointed formularies, adopted and authenticated by the signature of the witness in question, or otherwise; the declaration enforced or not by the ceremony of an oath.*
2. Cases where—under the influence of a mendacity-exciting interest, constituted by the fear of present and unavoidable corporeal sufferance terminating in extinction of life—declarations of opinion respecting individual facts, or supposed facts, actually in dispute, are delivered by a numerous company (twelve, for instance,) the members of which are forcibly kept in that state of affliction, until, and to the end, that they may in conjunction declare themselves to be all of one opinion, whether they really be so or no, in circumstances in which, in relation to these same points, immediately before such conjunction, different opinions, in all numbers less than that of the whole company, have been declared. To this head belong the pretendedly unanimous opinions delivered under the name of verdicts by companies of occasional judges, assembled together under the collective name of a jury, in the judicial practice of English law, under the technical system of procedure.
3. Cases where—under the influence of mendacity-exciting interest, constituted by so weak a force as that of sympathy for the sufferance of a stranger—declarations of opinion are delivered with one voice by an equally numerous company, in circumstances in which it is morally impossible that such declarations should be other than wilfully false in the instance of any one of the members. To this head belong the innumerable instances upon record, in which juries, to shield criminals from the unduly-severe punishments prescribed by a bad law, have solemnly and on their oaths declared, that articles of property, which they knew to be of the value of five, ten, or twenty pounds, were under the value of forty shillings.
4. After the above, it is a sort of anticlimax to bring to notice, in this point of view, the course of practice under the technical system of procedure—under which, in the instance of every individual suit without exception, judges, judicial officers their subordinates, professional lawyers of all descriptions, and suitors, unite in the utterance of an indefinitely extensive congeries of wilful falsehoods: judges, with their subordinates and brethren of the profession, voluntarily, under the influence of the profit derived from these enormities; suitors, under the influence of the rewards and punishments by means of which they are in some instances encouraged, in others compelled, by the judges, to join in the habitual perpetration of the same or the like enormities, according to the nature of the instruments and operations into which the tincture of falsehood is infused.
On this occasion, two descriptions of persons standing in so many different situations, require to be distinguished:—1. The individuals who, clothed or not with any authority, engage in the practice of wilful falsehood—the practice thus undeniably reprobated by the religious sanction—engage in it not of their own motion, but either excited by the reward, or compelled by the punishment, held up to them by their superiors: in this situation stand all the members of the community (except in so far as the people called Quakers form an exception,) as well as a select portion of them in the character of jurors; and 2. Those their superiors, under whose constantly observing eyes, and never-withholden approbation, this irreligious practice is carried on, and, in an immensely extensive mass of instances, cherished and inforced by the united powers of reward and punishment.
In this situation may be seen bishops and judges: bishops, to whom, under the notion of there being endued with a more than ordinary degree of sensibility to the action of the motives belonging to the religious sanction, and of their devoting their time to the endeavour of screwing up to its maximum that sensibility in the minds of the rest of the community, such enormous masses of emolument, power, and dignity, are attached;—judges, to whose situations, masses of emolument in some instances still more ample, together with masess of power in every instance much more ample, are, if not under an equally strong persuasion, at least under a like notion, also attached.
5. A still more striking instance of the inefficacy of the religious sanction, when unsupported by the other sanctions, to the production of truth, is that of university oaths. Every student who enters the University of Oxford swears to observe certain statutes, framed long ago by archbishop Laud for the government of the university. From the frivolity and uselessness of the observances which these statutes prescribe, public opinion does not enforce an adherence to them. The moral and the legal sanction stand neuter; the religious sanction, however, remains, and that in its most powerful shape—the shape which is given to it by the ceremony of an oath. This, then, is an experimentum crucis on the force of the religious sanction. If it be notorious that there is not a single student who does not openly and undisguisedly violate those very statutes, which he has solemnly invoked eternal vengeance upon his head if he does not rigidly observe,—violate them, and that as often as the minutest conceivable inconvenience would be incurred by adherence to his oath,—then, surely, the weakness of the religious sanction, considered as a security for veracity, to say nothing of any other virtue, is demonstrated. But every person who has been at the University of Oxford, can testify that this description is literally true.
The weakness manifested in all these instances by the religious sanction, is among those facts which, how little soever adverted to, are most notorious and undeniable. In all these instances, falsehood is committed by high and low, without concealment, scruple, or reluctance. Why? Because it is by the force of this sanction alone that the practice stands prohibited—a sanction composed of pains and pleasures removed to an indefinite distance in point of time, and none of which have ever been presented by experience to any human being.
In other instances, and to a still greater extent, the practice of falsehood is in a very considerable degree repressed, and, in so far as committed, not committed without great reserve, and the most anxious exertions made to conceal it from every eye. Why? Because it is by the force either of the political sanction, or the moral sanction, or both together, that the practice stands prohibited;—of one or both; but, to the production of those symptoms, the force of either is of itself sufficient.
In the case of an interest, by the action of which violent passion is liable to be produced—desire of great pecuniary gain, for instance, fear of great pecuniary loss, sexual desire, or fear of immediate death or severe bodily affliction,—in the case of a contest between the hopes and fears belonging to the religous sanction on the one hand, and any such powerfully-acting motive or interest on the other, and the occasional triumph of the more immediate over the more remote, and as it will he apt to appear, less certain, interest,—the inference afforded of the weakness of the religious principle, by the event of such a contest, would not be so conclusive. The power of the religious principle is in general strong (it might be said) and in a great degree efficient; but (owing to the frail and variable texture of the human mind) not so strong as not to be liable to be, in here and there an instance, borne down by the violence of these stormy passions.
But among the above examples we see one, in which the power of the religious principle is brought into the field in the utmost force of which it is susceptible, and still, habitually, and as it were of course, gives way to an interest of the very weakest species, viz. sympathy for the suffering of a single individual—an individual who is a perfect stranger to all the members of the judicatory by which the contempt of religious principle is thus mamfested—and he a criminal, in whose instance, in the judgment of the supreme and competent authority of the state, the suffering from which by this act of mendacity it rescues him, ought to have been inflicted.
In another of the above examples, that of university oaths, the whole force of the religious sanction, exerted in the strongest and most binding of all its shapes, fails of producing any, even the slightest, effect. Is it that it has some violent, some uncontroulable, passion to contend with, such as it might fail of overcoming, without affording any strong inference against its general efficacy? No: but by fulfilling an obligation, contracted under the sanction of so solemn an engagement, some slight inconvenience, some little trouble, might in some instances be incurred. The minutest possible quantity of trouble being thrown into the scale against the obligations of religion, is found, not in the case of an insulated individual, but of every Oxford student without exception, sufficient to outweigh them.
In the case of that pretended unanimity, which has so wantonly and unnecessarily been rendered compulsory on the occasions of the decisions pronounced by juries, the religious principle, it is true, finds itself encountered by the force of one of those almost irresistible motives above mentioned, viz. desire of self-preservation from death, aggravated by long-protracted torture: at the command of him who has the strongest stomach among you, yield, some or all of you, to the number of from one to eleven out of twelve—yield, and perjure yourselves. Immediately after the oath, by which you have engaged to your God not to join in any verdict but the one which, in your judgment, is true, join notwithstanding in a verdict which, in your judgment, is not true:—do thus, or inevitable death, preceded by insupportable torture, is your doom. Thus saith the law,—that is,—thus, in one knows not what age of barbarity and ignorance, have said those unknown judges, by whose authority this combination of torture with perjury was forced into judicial practice. Here, it must be confessed, the force of the physical sanction, with which that of the religious sanction has to contend, is no light matter:—the choice is between perjury and martyrdom.
But though, in the instance of the individuals themselves, on whom, in the character of occasional judges or jurymen, this obligation of trampling upon religious principle is imposed, the force by which it is subdued is thus mighty and irresistible,—no such force does that principle find to contend with, in the instance of those exalted functionaries, by whose hands the anti-religious obligation is, with such undisturbed serenity and undissembled complacency, habitually imposed. Until the perjury shall have been committed, and to the end that it may be committed, the judge holds himself prepared to torture the jurymen: but by no torture is the judge compelled or excited to manifest the satisfaction so habitually and cordially manifested by him at the thoughts of the practice in which he bears so capital a part—a practice which has torture for its means and perjury for its end.
How unpleasant soever, this comparative estimate was with a view to practice altogether indispensable. To depend, on every the most important occasion of life, upon the force of a principle which, on the occasions here in question, not to speak of other occasions, has been demonstrated by experience to be nearly, if not altogether, without force, would continue to lead, as it has led, to mischievous error and deception, to an indefinite extent. The topic of oaths, and the topic of exclusionary rules, grounded on the supposition of a deficiency of sensibility to the force of the religious sanction, will furnish proofs and illustrations.*
The opinion above expressed is not new. Divines of the most undisputed piety have repeatedly given their sanction to it.
The inefficacy of preaching (l’Inefficacité de la Prédication) constitutes the title, as well as the subject, of a work, published about the middle of the last century, by the Abbé Coyer, a French divine of the Romish church. To prove, or endeavour to prove, the inefficacy of preaching, is in other words to prove, or endeavour to prove, the weakness of the religious sanction; after and notwithstanding, all the force that could in that church be given to it by the most richly-rewarded eloquence.
The same proposition is (if auditors are to be believed) among the propositions habitually brought to view, as being habitually either maintained or assumed, and too manifest to be denied or doubted of,—brought to view in his sermons by a clergyman of the church of England, distinguished, even among those of the Methodist persuasion, for the union of zeal and eloquence.
The occasions on which, in both these instances, the weakness of the religious sanction stands confessed, or rather maintained and advocated, is that of its application to the purpose of meliorating the moral conduct of mankind; viz. in the dealings between man and man, and the conduct of man in regard to his own happiness, in the trifling business of the present transitory life.
To have endeavoured to disprove its efficacy in all respects, would have been an endeavour as vain as it is unexampled.
Various are the purposes to which its efficacy, in a greater or less degree, seems out of the reach of dispute:—
1. In causing men to try to believe,—to succeed in a considerable degree in their endeavours to believe—and whether they succeed or no, to say they believe,—improbable, and even impossible things: and with the more energy, the greater the improbability; and with most energy of all, those things which, not being facts either true or false, but contradictions in terms, are of all things most palpably and flatly impossible.
2. To cause men to profess to regard, and really to regard, with hatred and contempt, and to treat with unkindness—and, when power and opportunity occur, with oppression—those whose belief is not, or is suspected of not being, directed to the same objects, or not with the same energy, as their own belief.
3. To cause men to regard with fear, and in many instances with fear worked up to the pitch of insanity, and to profess and endeavour to regard with love, a being, to whom none of those sentiments can be of any use.*
GROUND OF PERSUASION IN THE CASE OF THE JUDGE—CAN DECISION ON HIS OWN KNOWLEDGE, WITHOUT EVIDENCE FROM EXTERNAL SOURCES, BE WELL GROUNDED?
A decision pronounced by a judge on a question of fact, what efficient cause can it have had, so it be conformable to justice, other than evidence? None whatever, is the answer that naturally presents itself.
To this rule, however, four cases may on further reflection be apt to present themselves in the character of exceptions: four cases, of the first of which it will be seen, that its title to that character will, on examination, be affirmed; while in the three others, it will be disallowed.
Case 1.—The only perceptions on which the decision concerning the fact is grounded, are perceptions obtained by the judge himself, without any report made to him, by any other person, in the character of a percipient witness. In this case, the functions and characters of percipient witness and judge are united in the same person: deposing witness there is none, there not being either need or room for the appearance of any person in that character.†
Case 2.—No person appears on either side in the character of a deposing witness: but the facts on which the decision is grounded are, for the purpose of the decision, established by the admission, express or implied, of the parties on both sides.‡
Case 3.—The facts in question are deemed too notorious to stand in need of being established by special evidence.
Case 4.—Facts on one side having been deposed to, and in such manner that, supposing the deposition credited, they would have been established by evidence,—a decision in disaffirmance of those facts is formed, on the mere ground of improbability.
Of these four cases, the first mentioned alone, viz. decision on view, will be found, as already observed, a real exception to the rule. It is a decision without evidence.
Without evidence? The judge, in this case, has he not the evidence of his own senses? Doubtless: but, in this case, the expression is but figurative: nor does the word evidence designate the same idea in this, as in other cases: his senses are detached from his person, erected into so many independent persons, and in that character introduced as witnesses. To keep clear of this confusion,—instead of decision without evidence, say rather decision without testimony: not that the confusion will, even in this case, be entirely avoided.
Without evidence? Be it so then. But the ground of the decision,—is it not still firmer than if it were composed of evidence? Yes, certainly—if the only mind, the satisfaction of which were worth providing for, were that of the judge by whom in the first instance the decision were to be pronounced. Supposing his opportunities of observation sufficient, and those opportunities improved—a report, however trustworthy, made of the fact by any other person concerning the supposed perceptions of that other person, will be but a very inadequate succedaneum to any perceptions obtained by himself. Whatever be the superiority which immediate possesses over hearsay testimony, the same will internal perception on the part of the judge possess, in comparison with persuasion grounded on the testimony of another, or any number of others.
If, then, the mind of the judge were the only mind, the satisfaction of which were worth regarding, perception obtained by the judge would be a ground of decision, not merely equal, but far superior, to evidence. But unless absolute despotism, seated in the breast of the judge himself, be the only eligible form of government, the mind of the judge is not the only mind the satisfaction of which is worthy of regard. So far from it, that it is only in the character of an instrument of satisfaction to some other mind or minds, that satisfaction afforded to the mind of the judge himself is of any use. In the case of unbridled despotism seated in some one superior breast, as in Morocco, it is of the mind of the despot, and of him alone: in the case of any government simply monarchical, or in a greater or less degree popular, in which the affections of the public are, or are professed to be, an object of regard, it is the mind of the public, the satisfaction of which must (if propriety or consistency be regarded) be said to be the ultimate object in view.
Of this theoretical disquisition, what then is the practical use? To ascertain whether under any, and if under any, under what conditions, power should in any case be allowed to the judge for deciding on the ground of his own perceptions, without the support of personal evidence ab extrà.
The answer seems to present little difficulty. In the first instance, and for saving delay, vexation, and expense, as well as to prevent mis-decision, or non-decision for want of demand, let the judge’s own perception be a sufficient ground for decision—for a decision to be pronounced by himself.
In case of appeal, which, in a case of this sort, ought ever to be allowed,—to guard against ultimate misdecision, let it be incumbent on the judge, if so required, to officiate in the character of a deposing witness, and in that character state the facts, subject to counter-interrogation,* exactly in the same manner as any other witness.
Even in the first instance, if the judicatory be, as it ought if possible to be, so constructed as to admit and contain an audience,—in pronouncing his decision, the judge might and ought to deliver, in his character of percipient witness, in the face of that audience, the facts which that decision takes for its ground.
Many, as will be seen, are the cases in which, to help to form the ground for decision, cognizance of this or that matter of fact is, under every system of law, obtained, in the way of immediate perception, by men occupied in the exercise of judicial functions: but, in these cases, perception constituting but a part of the ground of decision, and forming no more than a sort of supplement to testimony, they come not under the head of decision without evidence.
We come now to the cases in which the absence of evidence is but apparent, or regards no more than a part of the aggregate mass of legally operative facts:—
1. First comes the case of admissions, as above explained—express, or implied.
Admissions are but evidence, are but testimony, under another name.
When the admission is express, being the declaration of a party, and the effect of it operating, so far as it goes, in disfavour of him whose declaration it is, it comes under the head of self-disserving evidence.
Evidence of this description is, it will be seen, not only evidence, but the most trustworthy of all evidence: understand always, so far as the application made of it—i. e. the decision grounded on it—is confined to the interest of him whose declaration it is, and such other interests (viz. the interests of his representatives) as, being placed at his disposal, are considered as included under his.
When the admission is, as above explained, not express but only implied, the evidence is not direct but circumstantial: evidentiary fact, the negative act, the species of default above exemplified; principal fact, or fact evidenced, admission of the fact by which the interest which the admitting party has in the cause, is disserved.
2. Next comes the case where the fact is of the number of those which, being considered as placed by notoriety out of the reach of dispute, have therefore no need of being established by special evidence,—by evidence adduced for the single purpose of the suit actually in hand.
If to the purpose in question (viz. the purpose of serving, or helping to serve, as a ground for judicial decision) the fact be really notorious, it is notorious to the judge: a persuasion of the existence of it—a persuasion strong enough to give support to decision—is already formed in the bosom of the judge: this being assumed, all special evidence—all evidence the object of which is to endeavour to form such a persuasion, is, by the supposition, so far as his persuasion alone is deemed sufficient, superfluous and useless.
But, unfortunately, between facts that to the purpose in question are sufficiently notorious, and those that are not so, no distinct line is to be found: and where, in regard to this or that fact, a general persuasion of its existence is sufficiently prevalent, and to a sufficient extent, yet, in regard to this or that material circumstance, the persuasion is not perhaps sufficiently extensive and distinct. A fact regarded as notorious by one man, may be matter of dispute to another: a fact regarded as notorious by the plaintiff, may be matter of dispute to the defendant, and even to the judge.
From this indeterminateness, the practical inference seems to be as follows:—To save delay, vexation, and expense, it ought always to be in the power of the judge, at the instance of either party, to pronounce, and, in the formation of the ground of decision, assume, any alleged matter of fact as notorious. On the other hand, to guard against misdecision, it ought at the same time to be allowed to the party,—viz. to the party to whose prejudice the fact, if assumed, would operate—to deny the notoriety of the fact, and in so doing, call for special proof to be made of it: provided always, that for a false assertion to this effect, as for a false declaration of his persuasion to any other effect, he should stand exposed to suffer—whether by burthen of punishment, or by burthen of satisfaction, or both—as for wilful, i. e. self-conscious, falsehood, or falsehood through temerity, as the case may be.
When a fact is really to such a degree notorious, as that a man will not, without the imputation of falsehood, be heard to deny his persuasion of its existence, or to speak of himself as doubting of it,—in such case, if, in addition to a simple call for proof of it, an express declaration of such disbelief or doubt be made requisite to the existence of the obligation of complying with such call, shame,—fear of disrepute, will in general be sufficient to prevent any such call from being made, in a case in which the declaration, if made, would be otherwise than sincere: but if no such declaration be required—if the obligation follow upon the call—such call ought to be expected as a matter of course, in every case in which, by a chance of misdecision in favour of him who makes the call, or by delay, vexation, or expense, created by it to the prejudice of the other side, a sinister advantage may in any shape be reaped from it.
Under the existing systems of technical procedure, spun out everywhere under the impulse of an interest directly opposite to every end of justice,—the object, so far as concerns evidence, has everywhere been, not to lighten, but to aggravate, the load of unnecessary evidence: accordingly, proof made by one party, of facts of which on the other side there is no doubt,—proofs, in a word, substituted to admissions, are among the resources drawn upon for the advantage of the actual and mischievous ends of judicature: and as to this, so to other purposes, to prevent those explanations, by which injustice in all its shapes would be prevented, is among the objects which have been but too effectually accomplished.
It will seldom if ever happen that, for the substantiating either the plaintiff’s demand, or the defendant’s defence, no other facts than such as are already notorious will require to be believed: it is seldom, therefore, if ever, that evidence, special evidence (admissions as above included,) will altogether be to be dispensed with.
3. Lastly comes the case in which, in disaffirmance of facts affirmed by evidence on one side, a decision is pronounced on the ground of the improbability of these same facts.
Though not pronounced altogether without evidence, a decision thus grounded might seem to be pronounced without evidence adduced on the side in favour of which it is pronounced.
But, upon examination, it will be found that even in this case the decision is not without support from evidence. The evidence belongs indeed to that class which has received the name of circumstantial evidence—a modification of circumstantial evidence, composed of all those facts, all those sufficiently notorious facts, the existence of which is regarded as incompatible with the existence of the facts to which it is thus opposed; or, at any rate, as affording inferences of their non-existence—inferences strong enough to be regarded as conclusive, and, in that character, to govern and determine the persuasion of the judge.*
[* ]In the word evidence, together with its conjugates, to evidence, evidencing, evidenced, and evidentiary, the English language possesses an instrument of discourse peculiar to itself: at least as compared with the Latin and French languages. In those languages the stock of words applicable to this purpose is confined to the Latin verb probare and its conjugates: a cluster of words with which the English language is provided, in addition to those which, as just observed, are peculiar to itself.
[† ]When the persuasion, if any, which is thus produced, is complete, and at its highest point, the principal fact may, in a more expressive way, be termed the fact proved: the evidentiary, the probative fact. But of this pair of appellatives, the range occupying but a point in the scale, the use will, comparatively speaking, not be frequent.
[‡ ]Esprit de Lois, L. I. ch. 1.
[* ]The difference, in respect of evidence, between questions of mathematics and questions of purely experimental science—of chemistry, for example—is merely this: that the evidence applicable to the former, is that description of evidence which is founded upon general reasoning; while the evidence applicable to the latter, is evidence of that description which is derived immediately from matters of fact, presenting themselves to our senses. To point out the peculiar properties of these two kinds of evidence, and to distinguish them from one another, belongs rather to a treatise on logic than to a work like the present; which, considering evidence almost exclusively in regard to its connexion with judicature, excludes all general speculations which have no immediate bearing upon that subject.—Editor.
[* ]See antea, p. 17, note.
[† ]By collation of rights, Mr. Bentham means that species of service which the judge renders to any person by putting him in possession of a certain right. Non-collation of rights has place when that service is not rendered—when the person in question is not put in possession of the right.
[‡ ]There are many other judicial purposes for which it is necessary that things and persons should be forthcoming, besides that of being presented to the judge in the character of sources of evidence. The subject of Forthcomingness, therefore, belongs to the general subject of Procedure. And as the arrangements necessary to secure the forthcomingness of persons and things to serve as sources of evidence, do not differ from those which are necessary to secure their forthcomingness for any other judicial purpose, they do not properly form part of the subject of the present work.—Editor.
[* ]Suppose two witnesses, both veracious and correct; the testimony of each, of a nature to belong to the head not of direct, but of circumstantial evidence: the facts which Primus is enabled to prove, none but what are of a nature to afford inductions, which, if admitted, and standing alone, will be decisive in favour of the plaintiff’s side: the facts which Secundus is enabled to prove, none but what are of a nature to afford inductions decisive in like manner in favour of the defendant’s side. Suppose now the testimony of Primus received, while that of Secundus is not received, or vice versâ, the consequence is obvious.
[* ]On this subject a few pages had been written by Mr. Bentham, but he had never completed the inquiry, and the manuscript in the hands of the Editor was so incomplete that he has thought it best to suppress it.
[† ]Causes Celèbres, vol. iii. p. 309.
[‡ ]Essai sur l’Influence des Temps et des Lieux en Matière de Legislation,—published in vol. iii. of “Traités de Legislation,” edited by M. Dumont.—[See Essay on the Influence of Time and Place, &c. in Vol. I. of the present collection.]
[* ]Suprâ, Chap. I.
[† ]In a succeeding chapter, a distinction will come to be exhibited between what is called direct, and what is called circumstantial evidence. Direct evidence is testimony, or other evidence, applying immediately to some principal fact as above distinguished: circumstantial evidence is evidence applying immediately not to any such principal fact, but to some evidentary fact—to some other fact which is evidentiary with relation to such principal fact.
[‡ ]Dumont,—Traités de Législation Civile et Penale—Paris, 1802. [See Vol. I. of the present collection.]
[* ]Discourse comes mostly under that sort of evidence which there will be occasion to distinguish by the appellation of direct: deportment, serving or contributing to produce persuasion, but not operating in the way of discourse, belongs exclusively to the class of circumstantial evidence. See Book V. Circumstantial.
[* ]On an occasion of this sort, the ultimate standard of rectitude can no more be exterior to the mind in which the opinion declared is formed, in the case of the most diffident, than in the case of the most confident, of mankind. Instead of taking my own view of the matter for the ground of the opinion so declared by me, suppose me to take that of Hypercrito, the judge of appeal, superordinate to the judge first spoken of: the opinion of Hypercrito is the standard of rectitude, so far as assumed by me for that purpose: but, in pronouncing that the opinion, whatever it may have been, pronounced by Hypercrito, is right, my judgment has not assumed any standard of rectitude exterior to itself.
[* ]Unless it be a superior presumption of non-exposure to the seductive influence of sinister interest.
[† ]Of this, particular mention will principally be made, under the head of Circumstantial Evidence. As to written Evidence, it is nothing but personal, delivered through the medium of real evidence.
[* ]Interest should to this purpose be understood in its largest and most comprehensive sense; viz. as including not only self-regarding interest, but the interest constituted by sympathy or antipathy, as towards any other persons, taken individually or in classes.
[* ]Any sort of circumstantial evidence, which, though it have for its source a person, serves not to convey any indication of his mind, may with more propriety be ranked under the head of real than of personal evidence: as, for instance, the appearance produced on the body of a man already dead, or still alive, by a wound, and considered as affording circumstantial evidence, indicative of the instrument or hand by which the wound was inflicted.
[† ]A person being accused of a crime of any sort, suppose him, for argument’s sake, guilty. On an occasion judicial or extrajudicial, he has joined with others in discourse, bearing in some way or other relation to the fact, the principal fact, in question. So far as what he says is regarded as true, it is of the nature of direct evidence, and comes under the denomination of confessorial evidence: so far as it is regarded as false, evasive, or in any other way tending to deception, it is of the nature of circumstantial evidence; falsehood, evasion, deception, or the endeavour to deceive, being so many evidences, presumptive evidences, of guilt, i. e. of the commission of the criminal act in question, whatever it be.—See Book V. Circumstantial.
[* ]In the history of English judicature, an instance is upon record, in which a jury, finding a difficulty in settling the degree of their respective persuasions, sought for their consciences a relief, which, by men of hardened consciences, was imputed to them as a crime. The verdict, the result of the aggregate of their persuasions, was left to the decision of cross and pile. The verdict was set aside, and those who pronounced it (if I mistake not) were punished.
[† ]In the present instance, the seat and station of improvement, if the idea have any title to that name, is in language; but language, though itself the instrument of all other improvement, and standing to the full as much in need of improvement as any other instrument, is in a more particular degree averse to improvement: at least in those points of it which, not belonging, or not appearing to belong, to the demesne of any particular art or science, are conceived to belong in common to the great body of the people. Chemistry, for example, having for its subjects a multitude of things with which none are conversant but those who have devoted themselves to the science, amendments of every kind, to that part of the language, are daily suffered, and received without murmur or repugnance. Not so in the case of morals: this is considered as common land, and every improvement is resisted as an encroachment: always excepted those productions of lawyer-craft which have been forced into the language of the law, beyond all power of resistance, by the combined force of coercive power and imposture.
[* ]See Chap. III. Facts.
[* ]In a case considered as being of importance, in English practice, shades of difference in the form of persuasion on the part of this or that judge, have not unfrequently been endeavoured to be expressed in ordinary language: matter of vague dissertation, and sometimes of secret history.
[† ]See Book V. Circumstantial.
[* ]English Liturgy, Athanasian Creed, &c.
[† ]Harrison’s Chancery, I. 222. Rules and Orders of the Court of Chancery, p. 99, edit. 1739.—See infra, section 5.
[‡ ]Thus, in the English language, the command intimated by that future which is expressed by the word shall, is more imperative, indicative of a stronger exertion of will, than the command expressed by the word to which alone the denomination of imperative mood has been commonly affixed by grammarians: the command expressed by you shall pay me, is more strongly imperative than the command expressed by the words pay me. By the imperative, so called, nothing more is expressed than the bias given to the will of him who speaks. By the future above mentioned, not only the existence of the will is denoted, but the futurity of the event which is the object of it, is predicted as certain; an intimation being moreover given of the event as being about to have for its cause the will that has been thus expressed. Such is the power of my will, that the event of which it seeks to be productive cannot fail of taking place.
[∥ ]Elem. Jur. Civ. (ad Pandect.) pars iv. § 18.
[* ]See Book IX. Exclusion. Part VI. Disguised. Chap. I. Exclusion for want of multiplicity.
[† ]Ordonn. Crim. p. 375.
[‡ ]Coke Litt. 6.
[∥ ]Bl. Com. III. 371, chap. 23.
[§ ]Rules and Orders of Chancery, as published by the Lord Chancellor Clarendon, and the Master of the Rolls Sir Harbottle Grimstone, without date, but at a period immediately preceding the 27th February, 19 Car. II. 1667, p. 99, edition of 1739; and quoted as subsisting in Mr. Parker’s edition of Harrison’s Practice of the Court of Chancery, 8th edit. 1796.
[* ]Fowler’s Exchequer, I. 421, anno 1793.
[* ]The word testimony is on this occasion avoided: the reason is, lest by that word the proposition should in any instance be considered as meant to be confined to the cases in which the assertion is supposed to be made on a judicial occasion.
[* ]In the instances of the everlastingly occurring appellations cause and power, David Hume has pointed out the illusion flowing from this source: but that he has pointed out the constitution of human language as the source from whence the illusion flows, is not, to my conception, alike clear.
[† ]Of the single word,—the adverb, as it is called,—the verb why, the import, when developed, is found to be an entire proposition, and even a complex one. My will is, that you name to me that thing which is the cause of that other thing. So great was the error of the ingenious author of Hermes, when, in his analytical view of the grammatical forms called parts of speech, he attributed to the object represented by the adverb, the same simplicity as to the object represented by the noun substantive. Here, by the single adverb, we find represented, amongst others, the several objects respectively represented by no fewer than six nouns substantive.
[* ]See Dumont’s “Traités de Legislation,” and Bentham’s “Introduction to the Principles of Morals and Legislation” in Vol. I. of this Collection.
[† ]From πιστενω, to believe. The reader will excuse this convenient barbarism.
[* ]The propensity on the part of writers to attach to the idea of practice the idea of obligation, and that not declaredly in the way of inference, but silently and without notice in the way of substitution,—this propensity, and the confusion spread by it, not only over the whole field of moral science, but over the adjacent territories to a great extent, was noticed, and perhaps for the first time, by Hume, in his Treatise on Human Nature. But such is the force of habit and prepossession, after pointing out the cause of error, he continued himself to be led astray by it. On some occasions the principle of utility was recognized by him as the criterion of right and wrong, and in this sense the efficient cause of obligation. But on other occasions the ipse dixit principle, under the name of the moral sense, was, with the most inconsistent oscitancy, seated by his own hands on the same throne.
[* ]See Book V. Circumstantial. Chap. XVI. Improbability and Impossibility.
[* ]Trial of Warren Hastings.
[† ]Trial of Crossfield.
[‡ ]Trial of Codling.
[* ]But as circumstance is a name that may be given to a fact of any sort falsehood in circumstance and falsehood in toto may in this respect coincide.
[† ]For the explanation of mendacity and bias see the next chapter. The meaning of the term, is in general sufficiently well understood to tender an anticipated explanation of them in this place unnecessary.
[* ]The word dyslogistic is employed by Mr. Bentham in the sense of vituperative; as opposed to eulogistic.
[* ]See Book V. Circumstantial.
[* ]For mala fides, say, perhaps, insincerity: for bona fides, sincerity.
[* ]A state of things not frequently exemplified, but by no means incapable of being exemplified, is, when a witness, wishing and endeavouring to render his testimony in this or that respect disconformable to the truth of the case, and even believing himself to be so doing, renders it notwithstanding, and in the very same respects, conformable.
[† ]In the language of the Romanists, culpa and temeritas. These terms, however, are scarcely so much in use with reference to falsehood, an instrument in the hands of delinquency in general, as with reference to this or that particular species of delinquency. English lawyers have scarce got to the length of this distinction: with reference to delinquency in general, not with any approach to uniformity: with reference to the offence of false testimony, not at all. In a prosecution for perjury, mendacity in judicial testimony delivered upon oath, they know of no medium between self-criminative consciousness and innocence.
[* ]Conceive a song, sung by a female to her harpsichord, with a bar in it composed of demisemiquavers, or other notes expressive of the quickest time: suppose her to play and sing from the score, playing constantly either three or four parts at once, and singing at the same time a fourth or fifth: not one of these notes, the production of which has not been preceded by an act of vision, a perception of the musical character, and a judgment declarative of its cause and signification, its relation to the rest of the notes in tone and time, &c.
[* ]When, by the extrusion of the preternaturally opaque humour of the eye, a person born blind has received his sight at an age somewhat advanced, at a time when the judgment, so far as it has had ground to exercise itself upon, has been matured,—all objects have at first appeared to be equally near. The picture painted on the retina cannot in this case have been different from what it would have been in the case of a person of the same age, by whom the art of seeing had been acquired in the usual gradual manner. It has been the judgment, then, and not sensation, that has in this case been in fault. It is only by degrees, by incessant exercise of the judgment, by comparing the sensation produced by an object at a less distance with the sensation produced by the same object at a greater distance, that the judgment has learnt, with that variable degree of accuracy which belongs to the human judgment in such cases, the art of placing objects at their proper distances.
[* ]In the history of French jurisprudence, a case, it is said, may be found, in which inaccuracy of expression cost a man his life. A witness having been examined in the presence of the defendant, and having been asked whether he was the person by whom the act was done, which he had seen done, answered in the negative. “Blessed be God!” exclaims the defendant—“here is a man—qui ne m’a pas reconnu—who has not recognised me.” What he should have said—what he would have said, had he given a just expression to what he meant, was—“Here is a man qui a reconnu que ce n’étoit pas moi—who has recognised, declared, that it was not I.”—See Voltaire, “Essai sur les Probabilités en fait de Justice, Politique,” tom. ii.
[* ]As in case of an answer in equity, under the English law.
[† ]As in the case of an affidavit, for or against a motion for an information or attachment.
[‡ ]See Book III. Extraction.
[∥ ]See the next Chapter for the explanation of these terms.
[* ]Psalm xci. 11, 12.
[† ]St. Matthew. iv. 6. St. Luke, iv. 10, 11.
[* ]The sort of work here in question—the production of false, yet unmendacious evidence—may be styled the extraordinary work of the imagination. The ordinary work consists in exhibiting, for the purpose of amusement, facts, which had indeed no archetypes in nature, but which are known by the individual operator to be in that case, and are not seriously exhibited by him as true, either to a judge acting as such, or to anybody else. This ordinary work of the imagination has consequently nothing to do with evidence, and is altogether clear of those pernicious effects with which its extraordinary work is so apt to be attended. Novel-writers and poets must not be confounded with false witnesses.
[* ]As to good and evil, neither have the objects respectively signified by those words any value, nor the words themselves any meaning, but by reference to pain and pleasure.
[† ]The word interest, and the word motive, are, or at least might and ought to be, exactly co-extensive; the difference being no other than what consists in the difference between the sets of words respectively necessary to make them up into a sentence. A man has an interest in doing so and so, when, by the force of some motive, he is urged to do so and so. The interests corresponding to the self-regarding sorts of motives are, it is true, the sorts of interest most commonly in view where the word interest is employed. But to give the use of the word the extension which is requisite for the purpose of conveying just conceptions, and of which it is not unsusceptible, it must be extended so as to take in the dissocial motives, and even the purely social motives. L’interét de la vengeance (or vindictive interest, as it may be rendered in English) is an expression already familiar enough in the French language: and why should I not he permitted and admitted to take an interest, though it be not a self-regarding one, in the prosperity of mankind, my country, my profession, my party, or my friend?
[* ]See Book IX. Exclusion.
[* ]“Introduction to the Principles of Morals and Legislation,” in Vol. I. of the present collection; Chap. X. Motives.
[† ]Whatever act affords any the minutest particle of satisfaction, of pleasure, or removes or prevents any the least particle of pain, is, in so far, good. In this case are the great majority of human acts, even in the instance of the most atrocious malefactor that ever lived.
[* ]By a tutelary motive, is meant any motive which on the occasion in question prompts the person in question to do right. By a seductive motive, any motive which prompts him to do wrong.—See Introduction to the Principles of Morals and Legislation, Chap. X. Motives, Vol. I. p. 46.
[† ]Ibid. Chap. III. p. 14.
[* ]Under this head must also be included (although, the seat of them being in the mind, the sanction belonging to them should in that respect be referred to the psychological class) all such pains and pleasures as consist in, or are attached to, the expectation of pains or pleasures purely physical. For, strictly speaking, it is not so much by the physical sensation, as by the prospect of it, that the effect in question, produced on human conduct, is produced.
[† ]Legal or political.] Though in general the objects designated by these epithets will be found to coincide, the hand of law being the hand mostly employed by political government in the distribution of good and evil on the score of reward and punishment, more especially on the score of punishment,—they are not, however, absolutely identical; the political sanction comprising in its extent the whole mass of good and evil capable of being distributed and applied by the hand of government. Good and evil, especially good, are capable of being distributed, and in practice are distributed, by the hand of government, and that not only on other scores, but even on the scores of reward and punishment, especially reward—by other hands than that of law; at least, by others than that of the judge: and this not only, as they are but too apt to be, improperly, but to a considerable extent even consistently with strict propriety—especially on the score of reward.
[‡ ]Popular or moral.] Popular, in respect of the persons at whose hands the pains and pleasures, the good and evil in question, are expectable; viz. the members of the community at large, acting in their individual and private capacity, and not any of them, as in the case of the political sanction, in the character of public functionaries: moral, in respect of the degree in which the rules of action received in the character of rules of morality, rules for the government of moral conduct (abstraction made of the force of law, and the other motives referable to the political sanction,) depend upon this sanction for their observance. Abstraction made of the force of the political sanction, and of that of the religious, it is by the popular sanction, as above described, in conjunction with the physical, that human conduct in all its modifications is determined.
[* ]I mean, as to the narrator they have really appeared to happen. With this explanation, the expression, as they have really happened, may be used, instead of the more correct expression, to save words.
[* ]The extreme minuteness of the quantity of labour, the desire of avoiding which composes, in this case, the motive or determinative force, ought not to be considered as constituting any objection against a theory which consists in nothing more than the simple enunciation of a few indisputable facts. It is by forces thus impalpably minute, that the whole system of psychological conduct is regulated and determined. In a material balance, constructed as some have been known to be constructed, one five-hundredth part of a grain has been known to be sufficient to determine the descent on either side: and were it not for friction and the vis inertiæ, a five-millionth part would be equally efficacious.
[† ]Operating by itself, the efficiency of the physical sanction is not altogether so sure in regard to the production of completeness in tesmony, as in regard to the production of correctness. Production of completeness requires attention: viz. attention directed to that purpose: to attention, as well as to invention, when raised to a certain pitch, exertion, labour of mind, is necessary—labour over and above what is necessary to the giving expression to imperfect fragments. Here, then, is a force which, to be overcome, requires an exciting force over and above what is sufficient to produce correctness. This exciting force cannot be any other than that of some special interest. If, then, no such interest is acting upon the mind, completeness, unless by accident, will not have place: the testimony, how correct soever, as far as it goes, will not, to the purpose in question—will not, to the purpose of preventing deception—be complete.
[* ]See Book V. Circumstantial, Chap. V.
[† ]Of the moral or popular sanction, however, except where the force of it is assisted by interrogation—of the moral or popular, as well as of the physical sanction, and from the same causes, it may be observed, that it acts with less efficacy in the production of completeness than of correctness.
[‡ ]Like other imputations, this imputation is not the less galling, but apt rather to be the more galling, to a man, from his being conscious of its being merited, and thence of the probability of its being known to be merited. Accordingly, no two characters are more naturally united, in the same person, than the liar and the bully; the function of the bully being to give protection to the liar.
[* ]As in case of pre-appointed evidence. See the book so entitled (Book IV.)
[* ]Instances in which particular classes have joined in making one moral rule for their conduct among themselves—another and a totally different rule for their conduct towards all other persons, are not unfrequent. Such is uniformly found to be the case where particular classes are possessed of so much power as to be in a great degree independent of the good or ill opinion of the community at large. In the moral code of the West-India slaveholders, many acts which would be among the worst of crimes if committed against a white man, are perfectly innocent when the subject of them is a negro. For white and black, substitute Mahomedan and Christian, and the same observation holds good with respect to Turkey. Substitute orthodox and heretic, it at one time held good in all Catholic, not to say in all Christian countries, as well with regard to the other virtues in general, as to that of veracity in particular.—Editor.
[* ]Not that they deal (either of them) in lies and nothing else: the ware they deal in consists in a mixed assortment of truth and lies, made up in whatever proportions happen best to suit the purpose of the customer:—in what proportion, would, to the manufacturer and dealer, be matter of indifference, were it not that, of the two sorts of ware, lies are that by which his skill is most conspicuously displayed.
[† ]To the advocate, as such, belongs no such power, no such coercive power, as that which constitutes the characteristic attribute of the judge: but it is by the tongue of the advocate that the hand of the judge is moved: the power of the advocate, though in respect of intensity less in degree, is in specie the same with the power of the judge.
[* ]Take for example any of that infinite variety of offences, the mischief of which consists in the defalcation which they make from the public revenue. That these offences are not treated by the moral sanction with so much severity as they deserve, is notorious, and the cause is equally plain.
[* ]See the work entitled, “Scotch Reform opposed to English Non-reform,” Vol. V. See also Book VIII. of the present work.
[* ]Mr. Bentham might have quoted, in illustration of this remark, the following passage from Paley—a writer of undisputed piety, who, in a system of morals professing to be founded upon the will of God as its principle, makes no difficulty in giving a licence to falsehood, in several of its necessary or allowable shapes:—
[* ]Halhed’s Code of Gentoo Laws, printed by the East-India Company, anno 1776, p. 129, 4to. chapter iii. section 9.
[* ]Every person taking orders in the English church, signs a declaration of his full belief in the whole of the thirty-nine articles of that church, Some of the most pious members of it have not, however, scrupled to declare, that it is not necessary that this declaration should be true: that it is allowable for a person who does not believe in the whole, but only in a part, of the thirty-nine articles, to sign a declaration professing himself to believe in the whole.—Editor.
[* ]See Book II. Securities, Chapter VI., and Book IX. Exclusion, Part III. Chapter V.
[* ]If this view of the matter be just, two practical consequences seem to follow:—
[† ]Under English law, this state of things is exemplified in the case in which the judge has been authorized to convict on “view:” to pronounce a man guilty of having committed an offence of this or that description, on the ground that the act of transgression was committed under the observation of the judge himself.
[‡ ]Under English law, on admission express on both sides, as when a case is stated by them in conjunction, for the opinion of the court: on admission presumed, on howsoever slight a foundation, by the judge, from the deportment of the defendant, in the case when he omits to perform this or that operation, the performance of which is exacted of him on pain of his being considered as having admitted the facts necessary to establish the demand on the plaintiff’s side: as in the case of judgment for default, Bill taken pro confesso, &c.
[* ]See Book II. Securities, Chap. IX. Interrogation.
[* ]The subject of improbability will be treated at considerable length in the Book on Circumstantial Evidence, (Book V.)