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CHAPTER IX.: OF FEAR, IN SO FAR AS INDICATED BY PASSIVE DEPORTMENT, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUENCY. - 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 FEAR, IN SO FAR AS INDICATED BY PASSIVE DEPORTMENT, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUENCY.
A class of cases has already been brought to view,† in which the principal fact in question (viz. delinquency in this or that shape) cannot be probabilized by the evidentiary fact deposed to before the judge, without the intervention of some other fact or facts, constituting, together with the principal fact and the evidentiary fact, an evidential chain of a peculiar nature. The case where fear, howsoever supposed to be manifested, is the fact considered as evidentiary of delinquency, belongs to this class.
In a chain of this sort, the number of links will be different, according as it is to the perceptions of the judge himself, or to those of some other person by whom, in the character of a deposing witness, it is reported to the judge, that the fact here considered in the character of an evidentiary fact (viz. fear) presents itself.
First, suppose the judge himself the person to whose senses the fear (i. e. the appearance of fear) manifests itself. The links of the evidentiary chain will then succeed one another in the manner following, viz.:—
1. Link the first (group of evidentiary facts immediately presented to the senses of the judge,)—symptoms of fear. These, being objects of sense, must all of them be such as come under the description of physical facts.‡
2. Link the second,—the emotion of fear: a psychological supposed fact, inferred and supposed to be probabilized by these physical appearances;—fear, having for its supposed cause the expectation of the evil consequences (legal punishment included) considered as attached to the offence in question, by means of the ensuing links.
3. Link the third,—self-inculpative recollection: the memory of the supposed delinquent presenting to him the wrongful act as having been committed by him; viz. the physical act, positive or negative, accompanied with its criminative circumstances.
4. Link the fourth,—the criminal act itself, as above.
In an evidentiary chain of this sort, it has been already mentioned as the principal use of, and reason for, the operation of distinguishing link from link, that to each link belongs a distinct set of infirmative considerations, capable of operating in diminution of its probative force. The truth of that observation will be found exemplified in the present instance.
In this case, the chain of inference by which these four distinguishable links are connected stands thus:—1. From the physical appearances, regarded as symptoms of fear, the existence of that emotion is inferred; 2. From the supposed existence of that emotion, the existence of the criminative recollection above mentioned; 3. From the existence (viz. the present existence) of that recollection, the existence (viz. the past existence) of the criminative fact itself.
In relation to the second of the above three inferences, what must be observed is, that, for the purpose of forming the inference, the nature of the occasion is an object that must indispensably be called in; since, but for this, even supposing fear to be the emotion sufficiently established by the symptoms, this emotion might have had any other cause than the particular cause thus ascribed to it.
But for the occasion, the probative force of this circumstance would scarce amount to anything: add the occasion, and of itself it cannot but be very considerable. Infirmative considerations there are, as will be seen, to the disprobabilizing force of which it stands exposed; but of these—of all these taken together, the disprobablizing force (it will be seen) will not in general be very considerable.
The occasion here in question is the circumstance of the supposed delinquent’s being taxed with, or being supposed by himself to be suspected of, the particular act of delinquency in question: the existence of which occasion is always part of the case.
The second link is constituted, therefore, properly speaking, not of the fear alone, but of the fear combined with the occasion; since it is by the occasion that the existence and operation of those other possible causes, which will be brought to view in the character of infirmative possibilities, will be rendered improbable.
It is with this psychological sort of chain, as with a physical one: the chain is the weaker, the greater the number of links which enter into the composition of it. Why? Because each link brings with it is particular infirmative possibilities.
I. Inference forming the joint or connexion between link the first, viz. physical supposed symptoms of fear—and link the second, viz. the emotion of fear itself.
Infirmative possibilities applying to this joint:—
1. The cause of the appearances different: a purely physical fact, viz. bodily indisposition.
2. The cause of the appearances different: a psychological fact, indeed, and that an emotion, but a different emotion, such as grief or anger: grief or anger produced, for example, by the consideration of the wound inflicted on reputation, notwithstanding innocence.
II. Inference forming the connexion between link the second, viz. the existence of the emotion of fear—and link the third, viz. the existence of a criminative recollection, having for its subject the particular offence of which the supposed delinquent understands himself to be accused or suspected.
Infirmative possibilities applying to this inference:—
1. Recollection criminative indeed, but not in the way in question: recollection of an offence committed, but an offence different from that of which the supposed delinquent stands accused or suspected.
2. Recollection of an offence committed, not by the individual himself, but by some other individual connected with him by some tie of sympathy, and in whose instance the inquiry, it is apprehended, may be productive of conviction or suspicion.
3. Recollection of a fact by means of which, without any delinquency on his part, vexation has been, or appears likely to be, produced, in this or that shape, to himself,
4.—or to another person, or even a class of persons, more or less extensive, connected with him by some tie of sympathy.*
5. Apprehension of punishment, notwithstanding innocence. Of this infirmative probability the disprobative force will depend, it is evident, in a considerable degree, upon the general complexion and character of the system of procedure under which the inquiry is made.
6. Contemplation, prospect, of the vexation attached to prosecution, notwithstanding innocence: another circumstance the infirmative force of which will be seen to depend, more or less, on the system of procedure.
III. Inference forming the connexion between link the third, viz. supposed recollection of the criminative fact in question as committed by him—and link the fourth, viz. the actual commission of the act so supposed to be recollected.
Falsity of the supposed self-criminative recollection.
The error here supposed will present itself as being of a nature not very apt to be realized. It is capable, however, of taking place, not only in case of mental derangement, but in the case of habitual delinquency; especially if the time of the supposed offence be very remote.
Apprehended and examined, though for a theft in which he had no part, an habitual thief will naturally enough exhibit symptoms of fear; and, confounding one of his exploits with another, may suppose himself to recollect a theft in which in truth he bore no part.
Such are the conceivable facts which, in the character of infirmative probabilities, apply to the criminative force of fear, when the symptoms of it apply themselves without the intervention of any other medium to the senses of the person by whom, in the character of judge, the conclusion is to be formed—the decision grounded on them formed and pronounced.
If, instead of the phenomena themselves being presented to his senses, what is presented to him is but a report made concerning them by some other person, by whom they are stated as having been presented to his senses,—the probative force of them stands, in that case, subject to the infirmative operation which attaches upon supposed unoriginal evidence, as compared with the original evidence itself: an infirmative circumstance of the same nature as that by which (according to a distinction already noticed) supposed real evidence reported, is distinguished from the real evidence itself; and of which a more detailed view will be given in the next succeeding Book.
To the additional joint added to the evidentiary chain by the presence of this fifth link, the following circumstances present themselves as applying in the character of infirmative possibilities:—
1. Possible untrustworthiness (whether in respect of moral or intellectual qualifications) on the part of the reporting witness; viz. the supposed precipient witness, speaking in the character of a deposing witness.
2. Impropriety of the shape in which his testimony was received or extracted.
If to the deciding judge this testimony be presented not in the oral but ready-written form,—3. Inaptitude, whether in respect of moral or intellectual qualifications, on the part of the receiving or extracting judge.
[† ]Chapter I.
[‡ ]The physical symptoms with which theemotion of fear has been known to be accompanied, and of which it may be considered as productive, may be thus enumerated. But amongst them are some which seem indicative of a degree of emotion so high as to be seldom, if ever, produced by the fear of an evil so distant, and so far from being certain, as the evil of a punishment which for its infliction depends on the hand of law.
In some of the above instances the physical symptom is altogether independent of the will, it being altogether out of the power of the will to give birth to it. In other instances, though the production of it is not altogether out of the power of the will (and is accordingly effected without the existence of the emotion, in theatrical imitations,) it either takes place without the action of the will, or becomes the cause of the action of the will before it becomes the effect of it.
[*] “Infandum, Regina, jubes renovare dolorem.” Æneas was not upon his trial: but the emotion here was not fear, but grief.