Front Page Titles (by Subject) CHAPTER I.: ON EVIDENCE IN GENERAL. - The Works of Jeremy Bentham, vol. 6
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CHAPTER I.: ON EVIDENCE IN GENERAL. - 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.
[* ]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.