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CHAPTER III.: OF FACTS—THE SUBJECT-MATTER OF EVIDENCE. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 6 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 6.
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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.
[* ]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.]