Front Page Titles (by Subject) CHAPTER II.: OF PROBABILIZING, DISPROBABILIZING, AND INFIRMATIVE FACTS—EXAMPLES OF PRINCIPAL FACTS, WITH THE CORRESPONDING EVIDENTIARY FACTS—IMPROBABILITY AND IMPOSSIBILITY, HOW DISTINGUISHED FROM THE OTHER KINDS OF CIRCUMSTANTIAL EVIDENCE. - The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2)
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CHAPTER II.: OF PROBABILIZING, DISPROBABILIZING, AND INFIRMATIVE FACTS—EXAMPLES OF PRINCIPAL FACTS, WITH THE CORRESPONDING EVIDENTIARY FACTS—IMPROBABILITY AND IMPOSSIBILITY, HOW DISTINGUISHED FROM THE OTHER KINDS OF CIRCUMSTANTIAL EVIDENCE. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 7.
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OF PROBABILIZING, DISPROBABILIZING, AND INFIRMATIVE FACTS—EXAMPLES OF PRINCIPAL FACTS, WITH THE CORRESPONDING EVIDENTIARY FACTS—IMPROBABILITY AND IMPOSSIBILITY, HOW DISTINGUISHED FROM THE OTHER KINDS OF CIRCUMSTANTIAL EVIDENCE.
When, of any principal fact in question, the existence is indicated by direct evidence (no objection presenting itself to the trustworthiness of the deponent by whom the existence of it is asserted,) it is said to be proved; and for the proof of every such fact by evidence of this description, a simple assertion, made by any one such person in the character of a deponent, is frequently (under English law at any rate) regarded as sufficient. The persuasion generated by it in the mind of the judge is of sufficient strength to give birth to a decision on his part; together with such acts of power, to which, on the occasion in question, a decision to the effect in question is in the habit of giving birth.
When, of the existence of the principal fact in question, no other indication presents itself than what is afforded by circumstantial evidence, it is seldom, very seldom, that by any single article of evidence of that description the fact is considered as being proved: it is seldom that by any one such article, standing by itself, a persuasion strong enough to constitute a ground for action is constituted in the mind of the judge.
By some greater number of such lots of circumstantial evidence, taken together, the fact may be said to be proved. Of the probative force of any one of them, taken by itself, the utmost that can be said is, that by means of it the fact is probabilized:—rendered, in a greater or less degree, probable.
As there are facts—evidentiary facts—by the force of which, a fact, considered in the character of a principal fact, is probabilized,—so it will generally happen that there are others by which the same fact may be disprobabilized:—the existence of it rendered more or less improbable.
When a principal fact is thus probabilized, it is by the probative force of the evidentiary fact: by the strength of the inference by which, the existence of the evidentiary fact being affirmed, the existence of the principal fact is inferred. A fact being, in the character of an evidentiary fact, deposed to and considered as proved, and the principal fact in question considered as being thereby, in a certain degree, probabilized,—it will often happen, that, by the bare consideration of some other fact, which is not proved, nor so much as attempted to be proved, the principal fact will be considered as being, in a greater or less degree, disprobabilized. Why? Because, if the existence of this disprobabilizing fact be supposed (it being itself, in the case in question, not impossible,) it will therefore be seen that, notwithstanding the existence of a probabilizing fact, the existence of the principal fact is not in so high a degree probable, as it would be if the existence of the disprobabilizing fact were impossible.
Speaking with reference to the probabilizing fact in question,—any such disprobabilizing fact, thus contributing to weaken, to render infirm, the probative force of the probabilizing fact, may be termed an infirmative fact.
There are few, if any, probabilizing facts, in relation to which, one or more (commonly, if not constantly, more than one) infirmative facts would not, in case of an adequately diligent scrutiny, be found.
If, in one point of view, it be of importance that—in relation to all facts which, with reference to any of those principal facts on the credit of which a man’s station in society is disposed of, are wont to be considered in the character of probabilizing facts—the probative force should be perceived and rightly estimated;—in another point of view, it is a matter of correspondent importance that the several facts, bearing upon such probabilizing facts in the character of infirmative facts, should also be perceived as capable of having place, and the probative force of them respectively, be rightly estimated.
Among the facts which will be brought to view in the character of principal facts, is delinquency. Among the facts which will be brought to view in the character of evidentiary facts, are various facts, the nature of which (supposing them proved) is to operate, with relation to any principal fact of that description, in the character of circumstantial evidence. Among the facts which will be brought to view in the character of infirmative, and thereby of disprobabilizing, facts, are various facts, the force of which applies itself to divers of the facts just mentioned in the character of probabilizing facts, operating in that character with relation to delinquency.
In the instance of a fact of either description, supposing it either unseen, or the probative or disprobative force of it undervalued, the effect of such oversight or error may be fatal, with reference to one or other of the direct ends of justice. If the fact overlooked be a probabilizing fact, in relation to delinquency,—a wrongdoer may escape the burthen of punishment or satisfaction to which it was the intention of the law to subject him: if it be, in relation to any such probabilizing fact, an infirmative fact,—an individual who is not a wrongdoer may be subjected to punishment or the burthen of satisfaction as if he were.
In the case of delinquency, as in the case of a principal fact of any other description, the probabilizing facts in question (be it observed) are, by the supposition, not only brought to view, but proved; so that, in regard to these, all that, for the instruction of the judge, can be done by human industry, is to give what little instruction can be given in relation to their respective degrees of probative force. But, of any regard paid to any of the infirmative facts that respectively apply to these several probabilizing facts, the nature of the case affords no such certainty: it is in this instance, therefore, that the need of instruction is the greatest: it is by bringing to view the facts of this description, that, by hands unclothed with authority, the greatest service may be rendered to justice under the head of circumstantial evidence.
Overlooked they are in many instances not unapt to be. Accordingly, in the instance of one of the most illustrious luminaries of English law, an example will be seen,* in which, for want of due notice taken of the infirmative facts that bore upon the case, delinquency of the deepest dye (viz. murder) was considered as certain, in circumstances in which, regard being paid to those infirmative facts, it will perhaps, to a discerning eye, appear not more probable than innocence; at any rate, not to a sufficient degree probable, to afford a just ground for a judgment of conviction.†
To exhibit every fact capable of being considered in the character of a principal fact, together with every fact capable of being, with reference to it, considered in the character of an evidentiary (i. e. either a probabilizing or a disprobabilizing) fact,—and, moreover, every fact capable of being considered (with reference to such evidentiary fact) in the character of an infirmative fact,—would be to exhaust the stores, not only of jurisprudence, but of everything else that has ever borne the name of science.
For the purpose of the present occasion, a selection must therefore necessarily be made, and this even among the cases liable to call for decision at the hands of judicature: for, in one way or other, to whatever branch of science it belongs, there is scarce an imaginable fact to which it may not happen to be an object of research, for the purpose of a decision sought at the hands of judicature. Patents, by which temporary monopolies are granted for the encouragement of inventions, suffice of themselves to subject to the dominion of judicature almost the whole practical department of the field of physical science: wagers have power to subject to the cognizance of the same authority every proveable fact without distinction. By a wager concerning the existence of phlogiston, the whole field of chemistry might have been laid at the feet of the judge.
In the selection here made, the object has been, to take such examples as, by the frequency of their occurrence, and the extent of the ground which they cover in the field of law, promise to be in a more particular degree serviceable towards the prevention of the erroneous conclusions to which the function of judication (so far as concerns the question of fact) is exposed.
Here follow examples of facts, which, in the character of principal facts (facts on the belief of which judicial decision depends) are susceptible of being probabilized or disprobabilized by correspondent evidentiary facts or groups of evidentiary facts, constituting so many articles of circumstantial evidence, such as are in use to be deposed to, and considered as proved, in a course of judicial investigation.
I. Principal facts considered as probabilized:—
1. Delinquency in general; viz. any act by which the ordinances or supposed ordinances of the law (i. e. of the supreme power in a state) are transgressed. An enumeration of the several facts capable of serving, in the character of evidentiary facts, to probabilize a principal fact coming under this description (viz. the description of delinquency,) will be given in the sequel of this Book.*
2. Intention of performing any individual act belonging to a modification of delinquency, i. e. to a species of acts forbidden by law; and thence (when the fact so intended to have place has taken place,) the existence of such physical acts, as, on the part of the person in question, were necessary to cause it to have place.
For the correspondent evidentiary facts, see Chap. IV. of this Book.
3. Unauthenticity or unfairness (on one or both sides,) in the instance of a written instrument expressive of agreement or conveyance.
Correspondent evidentiary fact, non-observance of formalities; viz. of the formalities the observance of which has been made by the law a condition to its binding force.
By the laws by which these formalities have been appointed, the evidentiary fact here in question has in general been considered as conclusive evidence of the principal fact. Concerning the propriety of so peremptory a conclusion, see the book on Preappointed Evidence, and the book having for its subject the exclusions customarily put on various modifications of evidence.
4. Unauthenticity (total or partial) of any instrument being, or purporting to be, of ancient date.
For the circumstances capable of serving in the character of evidentiary facts to probabilize this principal fact, unauthenticity.—or (which is the same things in other words,) to disprobabilize the authenticity of the instrument,—see a table of evidentiary facts of this description, taken principally from Le Clerc’s Ars Critica.*
5. Posteriora priorum: any supposed antecedent acts in a number of supposed successive acts (whether forbidden by law or not,) considered as following one another in a supposed naturally connected series: for example, as being, or being supposed to be, conducive to one and the same end; such as, in a lawsuit, success, viz. on either side of the suit.
Correspondent evidentiary facts,—any acts proved to have been performed, and considered as having been performed in consequence of such supposed antecedent acts; for example, in pursuit of the same end.
See a table of evidentiary facts of this description taken from Comyns’s Digest of English Law.†
6. Priora posteriorum: any supposed consequent acts in a number of supposed successive acts, considered as following one another in a supposed naturally connected series, as above.
Correspondent evidentiary facts,—any acts proved to have been performed, and considered as having been performed antecedently to, and with the intention of their being followed by, such supposed consequent acts, as being means conducive to the same end.
See a table of evidentiary facts of this description, also from Comyns.
II. Principal facts considered as disprobabilized:—
7. (1.) Any supposed act of delinquency: any act made penal, or though but disreputable: especially if in a high degree.
The correspondent disprobabilizing evidentiary facts, are situations: viz. situations in which the supposed delinquent is capable of being found placed. In the sequel of this Book it will be seen, what situations can be considered to operate as circumstantial evidence probabilizing the existence of delinquency. Now, whatsoever situation exhibits the supposed delinquent as in a certain degree exposed to the danger of falling into the species of guilt in question,—by a situation opposite to that seductive situation he will in a proportionable degree he guarded and fortified against that danger.
8. (2.) Any supposed physical fact whatsoever.
Short and general expression for all supposed facts, considered in the character of disprobabilizing facts with relation to the supposed fact,—physical impossibility or improbability. These disprobabilizing facts follow, in each instance, the nature of the supposed principal fact. Any facts, considered as affording the indication in question, being supposed to be established, whether by special proof or by their own supposed notoriety,—there remains in each instance for consideration the question, whether the existence of the supposed principal fact is incompatible with the existence of the disprobabilizing facts?
The principal fact being considered as proved (viz. by such special testimony as, if not opposed by counter-evidence, would be regarded as sufficient for the proof of it;) the decision will in this case turn upon the supposed preponderance of probative force, as between special testimony (the testimony of the witness or witnesses by whom the supposed fact is deposed to,) and the supposed general testimony by which those facts which are regarded as incompatible with it are considered to be (as it were) deposed to: at any rate, as established on sufficient grounds.
Of the applications capable of being made of this modification of circumstantial evidence, the principal is that in which the extraordinary interposition of supernatural power is supposed: as in the case of sorcery, witchcraft, and such other operations, real or supposed, as have been designated under the general name of miracles.
9. (3.) Any supposed psychological fact whatsoever; i. e. any supposed fact, the supposed seat of which is in the mind of this or that individual human being.
Corresponding disprobabilizing facts shortly designated as above, psychological improbability.
The term impossibility is in this case omitted. The reason is, the want of uniformity and consistency on the part of all psychological facts as compared with physical ones. Correspondent and opposite to impossibility, is certainty. But the case of insanity is of itself sufficient to prevent any state of the human mind from being considered in any instance as certain: and of insanity there are gradations innumerable; many of them, at that end of the scale which is next to sanity, scarce distinguishable from it.
The last-mentioned species of circumstantial evidence—improbability or impossibility—has in its nature something peculiar. In all the other kinds of circumstantial evidence, the evidentiary fact (whatever it be—positive or negative) is at any rate something entirely distinct from, and independent of, the principal fact, the fact to be proved. In the case of improbability or impossibility, the evidentiary fact is not another and a distinct fact: it is no other than a property, or supposed property, of the principal fact itself; to wit (as will hereafter be seen,) the property of being contrary to the order of nature.
Circumstantial evidence, therefore, may with propriety be distinguished into that which is afforded by other facts, and that which is afforded by the nature of the fact itself that is to be proved.
For the illustration of the first of these modifications of circumstantial evidence,—taking for the principal fact, delinquency, considered in a general point of view,—I shall bring to view the several classes of probabilizing facts bearing relation to it; accompanied with an indication of such facts as present themselves in the character of infirmative facts with relation to such of the above-mentioned probabilizing facts as are exhibited in a state particular enough to be susceptible of any such particular indications.
This done, from the mass of particular considerations thus brought to view I shall deduce such considerations of a general nature as promise to be of use in the way of instruction, either to the legislator or the judge; for which purpose, the matter afforded by such of the circumstantial evidences as have for their principal fact delinquency, will, it is supposed, suffice.
I shall then pass to the consideration of that kind of circumstantial evidence which is afforded by the nature of the principal fact itself; viz. improbability and impossibility.
[* ]Vide infra, Chap. XVI. § 2.
[† ]In speaking of evidentiary facts as having the effect of probabilizing the correspondent principal facts, some notice cannot but be taken of the opposite effect, disprobabilization. But, owing to the structure of language, in virtue of which, by so simple an expedient as the addition of a short particle (a particle expressive of negation,) the same expression may throughout be employed to designate facts and other objects of a directly opposite nature,—there will be little need for considering the probative force (the disprobative force it will here be to be held) in this latter point of view. To probabilize any given fact will be the same thing as to disprobabilize its opposite: to probabilize delinquency will be to disprobabilize innocence; to probabilize innocence will be to disprobabilize guilt.
[* ]On contemplating the field of circumstantial evidence, an observation that will naturally present itself is, that it is to the penal branch of law that the topics apply, much more than to the non-penal branch. The reason is, that, for the most part, they consist in certain modifications of human conduct on the part of the supposed agent, and that those modifications have their origin in one common circumstance—consciousness of delinquency; or rather (to use an expression at once more correct as well as more extensive) apprehension of punishment. I say more correct; for, though apprehension of punishment may, without danger of error, be regarded as a necessary consequence of consciousness of delinquency, that consciousness cannot, without danger of error, be regarded as a circumstance necessarily precedent to apprehension of punishment:—a proposition in itself obvious enough, but which is at the same time but too apt to be overlooked, and which will therefore be, on several occasions, exemplified as we advance.
[* ]No such table is to be found in the MS.—Editor.—[The portion of Le Clerc’s work which was made use of, is evidently the 2d section of Part III. “De locis et scriptis spuriis à genuinis dignoscendis.” Vide Ars Critica, Lond. 1698, vol. ii. p. 367.—Ed. of this Collection.]
[† ]This table, as well as that which is subsequently mentioned, is also wanting.—Editor.—[But see the Addenda to Evidence. Tit. Testmoigne, Com. Dig. Hammond’s Edit.—Ed. of this Collection.]