The Online Library of Liberty

A project of Liberty Fund, Inc.

• Errata—vol. VI. *
• An Introductory View of the Rationale of Evidence; For the Use of Non-lawyers As Well As Lawyers.
• Chapter I.: Title-page Justified.
• Chapter II.: Relation of Law to Happiness—of Procedure to the Main Body of the Law—of Evidence to Procedure.
• Chapter III.: Ends of Justice On the Occasion of Judicature. *
• Chapter IV.: Duties of the Legislator In Relation to Evidence.
• Chapter V.: Probative Force—whence Measured—how Increased—how Diminished.
• Chapter VI.: Degrees of Persuasion—thence of Probative Force—how Expressible.
• Chapter VII.: Causes of Trustworthiness and Untrustworthiness In Testimony—thence of Belief and Unbelief.
• Chapter VIII.: Of the Securities For Trustworthiness In Evidence.
• Chapter IX: False Securities For Trustworthiness In Evidence—oaths and Exclusions.
• Chapter X.: Of the Reception and Extraction of Evidence, Viz. With the Help of the Above Securities.
• Chapter XI.: Collection of Evidence—english Practice.
• Chapter XII.: Of Circumstantial Evidence.
• Chapter XIII.: Of Make-shift Evidence.
• Chapter XIV.: Of Preappointed Evidence.
• Chapter XV.: Difference Between Preappointed and Unpreappointed Evidence.
• Chapter XVI.: Preappointed Official Evidence.
• Chapter XVII.: Extempore Recordation, How Applicable to Legally Operative Facts At Large.
• Chapter XVIII.: Of Derivative, Including Transcriptious, Recordation, Wherein of Registration.
• Chapter XIX.: Exclusion of Evidence.—general Considerations.
• Chapter XX.: Exclusion Continued—causes For Which It Is Proper Or Not, According to Circumstances.
• Chapter XXI.: Exclusion Continued—causes For Which It Cannot Be Proper.
• Chapter XXII.: Exclusions By English and Other Laws—analytic and Synoptic Sketches.
• Chapter XXIII.: Safeguards Against Suspicious Evidence: Including Instructions Concerning the Weighing of Evidence.
• Chapter XXIV.: Authentication and Deauthentication, As Applied to Preappointed and Other Written Evidence.
• Chapter XXV.: Exclusion and Nullification Applied to Contractual Matter, In So Far As Writing Has Been Omitted to Be Employed In Giving Expression to It.
• Chapter XXVI.: Of the Exclusion and Nullification of Contractual Matter, Informally Though Scriptitiously Expressed, In a Transaction Which Has Been the Subject of Matter Formally Expressed.
• Chapter XXVII.: Imprisonment For Debt:—disguised Exclusion of Evidence Involved In It.
• Chapter XXVIII.: Of the Burthen of Proof: On Whom Shall It Lie?— (a Question Produced By Undue Exclusion of Evidence.)
• Chapter XXIX.: Evidence Considered In Its Relation to This Or That Fact In Particular—why Discarded From This Work.
• Chapter XXX.: Evidence In Relation to Particular Facts and Pleadings Under Technical Procldure.
• Chapter XXXI.: False Theory of Evidence (gilbert’s * )—its Foundation:—precedence Given to Written Before Unwritten.
• Chapter XXXII.: Liberalists and Rigorists—parties Belligerent In the Field of Jurisprudence, and In Particular of Evidence.
• Chapter XXXIII.: Conclusion.
• Appendix A.: Cautionary Instructions Respecting Evidence, For the Use of Judges.
• Chapter I.: Propriety of Cautionary Instructions, In Preference to Unbending Rules.
• Chapter II.: Considerations Proper to Be Borne In Mind In Judging of the Weight of Evidence.
• Chapter III.: Considerations Respecting the Effects of Interest In General Upon Evidence.
• Chapter IV.: Considerations Respecting the Effect of Pecuniary Interest Upon Evidence.
• Chapter V.: Situations.
• Chapter VI.: Makeshift Evidence.
• Chapter VII.: Scale of Trustworthiness.
• Chapter VIII.: Best Evidence, What?
• Chapter IX.: English Law Scale of Trustworthiness.
• Appendix B.: of Imprisonment For Debt.
• Section I.: Its Inaptitude As an Instrument of Compulsion.
• Section II.: Its Inaptitude, Applied As It Is As an Instrument of Punishment.
• Section III.: Its Needlessness Demonstrated By Experience.
• Section IV.: End, Or Final Cause of the Institution—judge and Co.’s Sinister Interest.
• Section V.: Means Employed—mendacity and Usurpation.
• Section VI.: Affidavit Previous to Arrest, Its Unfitness.
• Section VII.: Consequence of the Exclusion Thus Put Upon Evidence.
• Section VIII.: Advocates For the Abolition of Imprisonment For Debt—their Errors.
• Section IX.: Scotch Law—cessio Bonorum, Its Inadequacy.
• Section X.: Agenda—course Proper to Be Taken On the Occasion of Insolvency.
• Appendix C.: False Theory of Evidence—(gilbert’s.)
• Rationale of Judicial Evidence, Specially Applied to English Practice. From the Manuscripts of Jeremy Bentham, Bencher of Lincoln’s Inn.
• Preface.
• Prospective View.
• Book I.: —theoretic Grounds.
• Chapter I.: On Evidence In General.
• Chapter II.: Of Evidence Considered With Reference to a Legal Purpose; and of the Duties of the Legislator In Relation to Evidence.
• Chapter III.: Of Facts—the Subject-matter of Evidence.
• Chapter IV.: Of the Several Species Or Modifications of Evidence.
• Chapter V.: Of the Probative Force of Evidence.
• Chapter VI.: Degrees of Persuasion and Probative Force, How Measured.
• Chapter VII.: Of the Foundation Or Cause of Belief In Testimony.
• Chapter VIII.: Modes of Incorrectness In Testimony.
• Chapter IX.: General View of the Psychological Causes of Correctness and Completeness, With Their Contraries, Incorrectness and Incompleteness, In Testimony.
• Chapter X.: Of the Intellectual Causes of Correctness and Completeness In Testimony, With Their Opposites.
• Chapter XI.: Of the Moral Causes of Correctness and Completeness In Testimony, With Their Opposites.
• Chapter XII.: Ground of Persuasion In the Case of the Judge—can Decision On His Own Knowledge, Without Evidence From External Sources, Be Well Grounded?
• Book II.: —on the Securities For the Trustworthiness of Testimony.
• Chapter I.: Object of the Present Book.
• Chapter II.: Dangers to Be Guarded Against, In Regard to Testimony, By the Arrangements Suggested In This Book.
• Chapter III.: Internal and External Securities For the Trustworthiness of Testimony Enumerated.
• Chapter IV.: On the Internal Securities For Trustworthiness In Testimony.
• Chapter V.: Of Punishment, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VI.: Of the Ceremony of an Oath, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VII.: Of Shame, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VIII.: Of Writing, Considered As a Security For the Trustworthiness of Testimony.
• Chapter IX.: Of Interrogation, Considered As a Security For the Trustworthiness of Testimony.
• Chapter X.: Of Publicity and Privacy, As Applied to Judicature In General, and to the Collection of the Evidence In Particular.
• Additional Notes to Books I. & II. Chiefly With Reference to Alterations Made In the Law Since the Date of the First Edition,— Viz. 1827.
• Book III.: Of the Extraction of Testimonial Evidence.
• Chapter I.: Of the Oral Mode of Interrogation.
• Chapter II.: Notes, Whether Consultable?
• Chapter III.: Of Suggestive Interrogation.
• Chapter IV.: Of Discreditive Interrogation.
• Chapter V.: Of the Demeanour of the Adverse Interrogator to the Witness, Considered In Respect of Vexation.
• Chapter VI.: Of the Notation and Recordation of Testimony.
• Chapter VII.: That the Evidence Should Be Collected By the Same Person By Whom the Decision Is to Be Pronounced.
• Chapter VIII.: Five Modes of Interrogation Compared.
• Chapter IX.: Epistolary Mode of Interrogation, In What Cases Applicable.
• Chapter X.: Epistolary Mode of Interrogation, How to Apply It to the Best Advantage.
• Chapter XI.: Helps to Recollection, How Far Compatible With Obstructions to Invention?
• Chapter XII.: Of Re-examination, Repetition, Or Recolement.
• Chapter XIII.: Of Spontaneous Or Uninterrogated Testimony.
• Chapter XIV.: General View of the Incongruities of English Law In Respect of the Extraction of Evidence.
• Chapter XV.: Mode of Extraction In English Common-law Procedure—its Incongruities.
• Chapter XVI.: Mode of Extraction In English Equity Procedure—its Incongruities.
• Chapter XVII.: Mode of Extraction In English Ecclesiastical and Admiralty Courts—its Incongruities.
• Chapter XVIII.: Incongruities of Roman Law In Respect of the Extraction of Evidence.
• Chapter XIX.: Of Confrontation Under the Roman Law.
• Chapter XX.: Recapitulation.
• Book IV.: Of Preappointed Evidence.
• Chapter I.: Of Preappointed Evidence In General.
• Chapter II.: Of Instruments of Contract In General.
• Chapter III.: Of the Enforcement of Formalities In the Case of Contracts.
• Chapter IV.: Formalities, What Proper, and In What Cases?
• Chapter V.: Of Wills, As Distinguished From Other Contracts.
• Chapter VI.: Of Preappointed Evidence, Considered As Applied to Laws.
• Chapter VII.: Of Public Offices At Large, Considered As Repositories and Sources of Preappointed Evidence. *
• Chapter VIII.: Of Official Evidence, As Furnished By Judicial Offices.
• Chapter IX.: Of Preappointed Evidence, Considered As Applied to Legally-operative Facts At Large.
• Chapter X.: Of the Registration of Genealogical Facts, Viz. Deaths, Births, and Marriages.
• Chapter XI.: Of Offices For Conservation of Transcripts of Contracts. *
• Chapter XII.: Of the Principle of Preappointed Evidence As Exemplified In the Case of Real Evidence (evidence From Things.)

CHAPTER VII.

OF THE FOUNDATION OR CAUSE OF BELIEF IN TESTIMONY.

§ 1.

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.

§ 2.

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.

[* ]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.