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CHAPTER XV.: ON THE PROBATIVE FORCE 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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ON THE PROBATIVE FORCE OF CIRCUMSTANTIAL EVIDENCE.
What ought to be done, and what avoided, in estimating the probative force of circumstantial evidence?
On this as on every other part of the field of evidence, rules capable of rendering right decisions secure, are what the nature of things denies. To the establishment of rules by which misdecision is rendered more probable than it would otherwise he, the nature of man is prone. To put the legislator and the judge upon their guard against such rashness, is all that the industry of the free inquirer can do in favour of the ends of justice.
Probative force of the evidentiary fact in question, in relation to the principal fact in question,—and closeness of connexion between such evidentiary fact and such principal fact,—are interconvertible expressions.
Probative force, and closeness of connexion as between fact and fact, having no more than an apparent and relative existence (relative, viz. relation being had to him by whom the facts are contemplated in this view;) nothing more can be truly indicated by them than strength of persuasion on his part—strength of persuasion, applied to evidence of the description in question,—viz. to circumstantial evidence.
On each individual occasion, the degree of strength at which the persuasion stands would be capable of being expressed by numbers, in the same way as degrees of probability are expressed by mathematicians, viz. by the ratio of one number to another. But the matter of the case admits not of any such precision as that which would be given by employing different ratios (i. e. different pairs of numbers) as expressive of so many uniform degrees of probative force, belonging one of them to one sort of circumstantial evidence, another to another.*
Of an evidentiary fact of the same description, described in and by any combination whatsoever of general words, the probative force will be found different in different individual cases. It may be in any degree slight; and it may be strong in almost any degree short of conclusive.
The use of infirmative suppositions is to afford a test of conclusiveness, and, in some sort, of probative force.
To judge whether, with relation to a given principal fact, a given evidentiary fact be conclusive or no, look out on all sides for all such infirmative suppositions as can be found.
If, with relation to a given fact proposed in the character of a principal fact, another fact given in the character of an evidentiary fact appear to you as operating in that character—operating in any degree, howsoever slight,—look round to see if no supposition operating upon its probative force in the character of an infirmative supposition be to be found—no fact which in its nature is not impossible, and with which (supposing it, on the occasion in question, realized) the existence of the principal fact in question would be incompatible; or in virtue of which the existence of the principal fact would be seen to be less probable. If any such infirmative supposition be found, the probative force of the evidentiary fact is not so great as to be conclusive.
But if, after your utmost endeavours, you find yourself unable to discern any such infirmative supposition,—then, in your own particular instance (relation had to the state of your own persuasion,) the probative force may be conclusive.
Supposing one evidentiary fact, and only one infirmative supposition applying to it: then, to estimate (i. e. expression numbers) the quantity of probative force remaining to the evidentiary fact,—deduct from the ratio expressive of practical certainty, the ratio expressive of the probability of the fact the existence of which is by the infirmative supposition supposed: the remainder will be the nett probative force.
To one and the same evidentiary fact, suppose a number of different infirmative suppositions applicable; and, of each of the several supposed facts, suppose the probability the same; the sum of their infirmative forces will be as their number.
In an evidentiary chain composed of a number of links, of which the first is a fact proved by direct evidence, the last the principal fact in question, and between them one supposed fact at least, of which the fact proved is regarded as evidentiary, and which itself is regarded as evidentiary of the principal fact; the greater the number of such intermediate links, the less is the probative force of the evidentiary fact proved, with relation to the principal fact. Why? Because, of the several facts thus evidentiary one of another in a chain, each is hable to have its infirmative counter-probabilities, by the disprobative force of each of which, as above, its nett probative force is liable to be diminished.
Accordingly, on the occasion of each such chain, let it be your care to see that no intermediate link or links, with their respectively applicable infirmative suppositions, be omitted.
From the probative force of each evidentiary fact applying to the same principal fact, that of every other will receive an increase.
But no reason can be given for concluding that the sum of the probative force of such evidentiary facts will be uniformly as the number of the facts themselves.
On looking over, for example, a table or list of evidentiary facts, having for their common principal fact delinquency,—it will be found that, in more instances than one, two evidentiary facts, of each of which taken by itself the probative force would be scarcely worth regarding, shall, when taken together, be found to operate with a very considerable degree of probative force: so considerable as to be, if unopposed by any counter-evidence on the other side, conclusive. Or if two, thus unopposed, be not sufficient, three may; and so on.*
Of facts of the psychological class, there is no one species of evidentiary fact, the probative force of which can with propriety be considered as being in all cases conclusive.
Why? Because, as hath already been seen, there is not one, the probative force of which is not liable to be weakened by different classes of facts, distinguished on that consideration by the appellation of infirmative facts.
Among physical facts, one may be evidentiary of another with any degree of probative force; and accordingly with a degree of force sufficient to be regarded as conclusive.
On this head, see what, under the head of physical incredibility, is said farther on, of the three modifications of extraordinary facts: viz. facts amounting to a violation of a law of nature, facts devious from the course of nature in degree, facts devious in specie. If, the existence of fact A being supposed, the non-existence of fact B would be a violation of any law of nature, or devious in degree or species to such an extent as to be incredible, the probative force of fact A, in relation to the existence of fact B, may be deemed conclusive.
Thus, in regard to quadrupeds, take the two facts, parturition and sexual conjunction. Between these two facts, parturition is the indicative fact—sexual conjunction the fact indicated by it; and, of the former, the probative force, in relation to the existence of the latter, may be pronounced conclusive.
Among physical facts, however, even such as are the most completely conclusive, the conclusiveness affords no sufficient reason for the establishment of unbending rules, imposing on the judge the obligation of forming the conclusion indicated.
Why? Because, in proportion as the rule is safe, secure against being productive of erroneous decision, it is in the same proportion useless. Safe, it is not effective; effective, it is not safe.
Suppose a rule laid down, that, in every cause in which virginity may happen to come in question, parturition shall be regarded as a fact conclusively disprobative of it. The rule would be innocent enough: but where would be the use of it? Is there any the least danger, that, by any judge or set of judges by whom parturition has been admitted to have been satisfactorily proved, the existence of sexual intercourse should be disaffirmed?
If the establishment of any one such rule would be proper, so would that of as many others as could be constructed. But in this way a complete system of physical science would be to be established by authority, and engrafted into the system of judicial procedure: and limits to the improvement of every branch of physical science, and especially of the most important of all—the medical—would be fixed by law.
No rule ought to be laid down, rendering the exhibition of this or that evidentiary fact necessary as a condition sine quá non to a judicial decision affirming or assuming the existence of any other fact in the character of a fact indicated, and requiring for the proof of it the proof of such evidentiary fact.
Reasons.—If the probative force of the other parts of the evidence is not sufficient to produce persuasion on the part of the judge, persuasion will accordingly not be produced; and the rule restraining the judge from acting on the ground of such persuasion will be unnecessary and useless. If the probative force of the evidence is sufficient to produce such persuasion, and such persuasion is produced accordingly, although the proof of the evidentiary fact in question be wanting,—the restrictive rule is improper, prejudicial to the interests of truth and justice.
In the history of law, be the country what it may,—the farther we go back, the more numerous the instances we may expect to find of convictions and executions on insufficient evidence: but, for the opposite reason, the longer we go on in the track of civilization, the more rare we may expect to find the instances of such errors in judicature as have the weakness of the mental faculties for their cause. It is in the strength which, by the continually-increasing stock of information, may be given to the mental faculties of judges by apposite instructions drawn from correct and comprehensive views of the subject, that the true preservative against such errors is to be looked for; not in the restrictive operation of unbending rules of evidence.
If there be any cases in which any such unbending rules promise upon the whole to be beneficial to the interests of truth and justice, the two following seem to be of the number:
1. Where,—the mischief of the decision, if erroneous, being in a certain respect irreparable, and (by reason of the distance of the tribunal from the seat of government or otherwise) the confidence reposed in it by the legislator inferior to that which is reposed by him in some other and higher tribunal,—cases are accordingly marked out, in which, on the ground of evidence of such or such a description, or without the concurrence of evidence of such or such a description, a decision productive of such irreparable consequences shall not be pronounced, or shall not be executed.
It is upon this same principle, that, in the Austrian code, certain offences are marked out, such as magic and witchcraft, in relation to which the inferior tribunals of distant provinces are forbidden to proceed upon any evidence.
2. The other case comprehends in its whole extent the range of capital punishment—the only species of punishment which is absolutely and totally irreparable. But, of the consideration of this irreparability, what is the true result? The impropriety of this mode of punishment: not the propriety of those unbending rules.
In the instance in question, it was the consideration of the nature of the punishment—of the property thus belonging to it—that called into action the humane temerity of the judge. In every system of law into which this irreparable mode of punishment has been admitted—but most of all in the English system, in which the fondness shown to it is so great, and so continually upon the increase—the system of procedure in general, and of the law of evidence in particular, teems with rules and practices tending to the encouragement of criminality in every shape, and most of all in such as are most mischievous. Capital punishment has thus been all along operating, and will continue to operate with continually increasing force, as a slow poison upon the whole system of procedure, including that of evidence. Thus it is that the work of real inhumanity and of false humanity, of folly under that specious name, go on together: and, while substantive law, with its favourite and unwearied instrument, capital punishment* is straining every nerve to tighten the bands of society,—adjective law, with its prejudices and inconsistencies, is as pertinaciously employed in loosening them.
From the above theoretical propositions, the following practical instructions of a monitory nature seem deducible:—
I. Warnings tending to prevent under-valuation:
1. Reject no article of circumstantial evidence on the score of weakness.
2. Much less on the score of its not being conclusive.
3. Hold not the aggregate mass insufficient, for the separate insufficiency of the elementary articles.
4. Hold not an aggregate mass of circumstantial evidence insufficient, for the mere want of an article of this or that one description.
5. Hold not circumstantial insufficient, as such, for the mere want of direct evidence: viz. where direct evidence is not obtainable, or not without preponderant inconvenience in the shape of delay, vexation, and expense.
6. Hold not direct evidence insufficient, merely for the want of circumstantial.
II. Warnings tending to prevent over-valuation:
7. (1.) Set down no article, nor any aggregate mass, of circumstantial evidence, as even provisionally conclusive in all cases.
8. (2.) Much less as conclusive against, or (what comes to the same thing) to the exclusion of, all counter-evidence.
9. (3.) Content not yourself with general circumstantial testimony, when you can have special direct testimony from the same source.
10. (4.) Whatever evidence (in particular, circumstantial evidence) other than that produced by interrogation of the respective parties, presents itself,—if the situation of the party be such as to present any probability of his being able to give explanation of it (i. e. to contribute either to give completeness or correctness to it, or to the inferences deducible from it,)—fail not to employ interrogation—judicial interrogation applied to the party—for the explanation of it.
11. (5.) Reject not circumstantial as needless, on account of the abundance of direct.
Errors of jurists, from neglect of the above rules.
The warnings given above are (it may be said) reasonable enough, but are they not too obviously so to be of any use?
Among the errors thus pointed at, not one perhaps that has not been embraced in practice, propagated by law-writers, or, (what is worse) carried into effect by legislators and by judges.
In each part of the field of evidence, after what presents itself as the path of utility and reason has been traced out, the course taken in the present work is to bring to view the deviations made from it by the most distinguished systems of established law, the Roman and the English. Such, accordingly, is the course pursued on the occasion now in hand: except that—as exemplifications of such deviation cannot be found for every one of the above monitory rules—to supply the deficiency, the view given of the established practice in the two systems will here be preceded by a few examples, taken from the speculations of jurists, whose notions in regard to the points in question do not appear as yet to have been on any occasion explicitly adopted, so as to have given birth to practice. With a view to this particular subject, the order given to the monitory rules should also have been given to the examples: but, to avoid confounding unauthoritative notions with authoritative practice, the particular principle has been sacrificed to the general one.
1. An aggregate body of circumstantial evidence treated as insufficient, on the ground of the separate insufficiency of the elementary articles.
When, in a penal cause, the charge is supported (as is commonly the case) by a number of evidentiary facts, with or without direct testimony to the principal fact in question,—a natural, and, on the part of the advocate for the defendant, a necessary course, is, to take the body of evidence to pieces—to examine each member of it, each evidentiary fact, separately—and, from the inconclusiveness of each, to infer the inconclusiveness of the whole.
In the case of Captain Donnellan, on the criminative side no article whatever of direct evidence was produced, but a prodigious number of criminative facts—articles of circumstantial evidence. After he was executed, a book was written to prove the evidence insufficient. Each criminative fact was taken separately: how inconclusive this! how inconclusive that! and so on: each being inconclusive of itself, the inference was, that so they were all of them put together. Of the individual premises, each taken separately, the truth was undeniable; but the collective conclusion did not follow.
Donnellan practised distillation: as a proof of poisoning, what did that amount to?—next to nothing. At that rate, all distillers would be poisoners. Not engaged in that or any other occupation with a view to profit, nor yet occupying himself with chemistry in any other shape, still he practised distillation: what did that again amount to?—some small matter perhaps, but very little more. At that rate, all the Lady Bountifuls (a class which, though not quite so numerous as formerly, is not yet quite extract) would be poisoners.
He distilled what there was reason to think was laurel-water,—a known poison, not known to be used for any other purpose: the proof strengthens, though still very far from conclusive.
Thus much as to preparations, though there were others in the case. Go on next to motives. The relation of the defendant to the deceased was such, that, upon the death of the latter, a large property was to devolve upon the former. Here, then, was temptation—a sinister motive, to which he stood exposed. What he saw, what he could not but see, was, an advantage (and that to a great amount) on the point of accruing to him on the happening of that event. In that point of view, he was urged by a particular species of motive (pecuniary interest) to use his endeavours for the bringing about of that event. In that point of view, he stood exposed to the impulsive action of that motive. Does it follow that he yielded to the impulse? Here was a survivor who had profit in expectancy upon the death of the deceased. Does it follow that, at the expense of so horrible a crime, he used his endeavour for the procuring of such death? At that rate, the most common of all causes of death is parricide.
Ill-humour has been observed between man and wife: the woman dies. Is this a proof that she died by murder, and that her husband was the murderer? At that rate, the few couples excepted who might be capable of making title to the flitch at Dunmow, all married men and all married women are murderers.
2. An aggregate body of evidence held insufficient, for want of a particular article of circumstantial evidence.
In several instances that have been made public, and in a number greater than might at first view have been supposed,—a defendant has been convicted of the murder of a man, who has afterwards made his appearance in a living state.
In consideration of the fatal errors in judicature thus brought to light, instances have been mentioned in which a judge has declared his resolution never to concur in any conviction of murder, where the dead body has not been found.* But a resolution known to be thus declared (at least if corroborated by a known instance in which such resolution has been acted upon,) is sufficient to give birth to a rule of jurisprudential law.
The motive of the determination was evidently a laudable one, but the consequences of the determination, if converted into a rule, and that without exception, and known to be so, would be in the highest degree prejudicial to justice. To secure to himself impunity, a murderer would have no more to do but to consume or decompose the body by fire, by lime, or by any other of the wellknown chemical menstrua; or to sink it in an unfathomable part of the sea. In any of these ways might the body be effectually got rid of: and, though it were in the face of any number of witnesses, the rule being established without the correspondent exceptions, impunity would follow of course.
Nor yet would the rule afford the security it aims at, without another condition, not expressed upon the face of it. The body found,—by what evidence is it to be proved to have been found? The judge before whom the prosecution for the homicide is to be tried,—is it to his eyes that the body is to be produceed? This is not in any case what is meant. What, probably enough, is meant, though not expressed, is, that the existence of the body in a dead state should have been ascertained by the testimony of some ocular witness, whose trustworthiness is regarded as being exception-proof: for example, in English law, the coroner with his jury. For, if any testimony at large is to be regarded as sufficient, the intended security is gone. “I saw the body of Titius after he was dead:” “I saw Sempronius beat out the brains of Titius.” Falsehood may attach with as little difficulty upon the one speech as upon the other.†
3. An imperfect body of circumstantial evidence set down as conclusive, for want of due attention to supposable infirmative facts.
Of the need there may be for these warnings, an exemplification may be seen in the doctrine of Lord Coke.‡ Of his division of presumptions (i. e. of circumstantial evidence) into three degrees, in respect of force—violent, probable, and light or temerarious—mention has been made upon another occasion, in another place.∥ “Violenta presumptio” (says he) “is many times” (in many instances) “plena probatio” (full proof:) and the instance he gives is this:—“As if one be run thorow the bodie with a sword in a house, whereof he instantly dieth, and a man is seen to come out of that house with a bloody sword, and no other man was at that time in the house.” “Presumption probabilis moveth little, but presumptio levis sen temeraria moveth not at all.”
To the probative force of this body, or rather article, of circumstantial evidence, two facts present themselves in the character of supposable infirmative facts.
1. The deceased plunged the sword into his own body, as in the case of suicide: the accused, not being in time to prevent him, drew out the sword, and so ran out, through confusion of mind, for chirurgical assistance.
2. The deceased and the accused both wore swords. The deceased, in a fit of passion, attacked the accused. The accused, being close to the wall, had no retreat, and had just time enough to draw his sword, in the hope of keeping off the deceased: the deceased, not seeing the sword in time, ran upon it, and so was killed.
Other suppositions might be started besides these; nor do these exculpative ones either of them seem in any considerable degree less probable than that criminative one: if so, the probability of delinquency, instead of being conclusive, is but as 1 to 2.
Such is the evidence upon which the father of English jurisprudence would have pronounced a man guilty without seruple.
What it is he would have found him guilty of,—murder or manslaughter,—a capital crime, or a crime short of capital,—he does not say: murder, probably enough; since manslaughter, being a sort of alleviation, requires special evidence: murder, accordingly, is the verdict which the coroner’s jury find of course, where no alleviating circumstances, to reduce it to manslaughter, have presented themselves*
Defects of established systems, from neglect of the above rules.
1. General circumstantial testimony, received to the exclusion of special direct testimony from the same source, as also of all counter-evidence, is exemplified in the instance of the several sorts of actions or suits to which the evidence called wager of law† applies.—Restoration of a specific thing is claimed at the defendant’s hands. By whatsoever body of apposite evidence, direct or circumstantial, the claim is supported,—the defendant is allowed to adduce the counter-evidence thus denommated, and the evidence in support of the claim becomes inadmissible. The defendant comes into court, and denies, in general terms, the fact (whatever it be) on the ground of which the obligation is sought to be imposed upon him. Along with him comes a posse of other witnesses: number, a dozen, neither more nor less. They know nothing about the matter; but, by the opinion they have of him, they are certain that what he says is true. The evidence they furnish is so much character evidence.
Swearers of this denomination are like ghosts and witches: nowhere do they exist; but in many and many a place they do as much mischief as if they did. Two or three sorts of actions are altogether laid asleep by them; and the effect of it is, that, for no one moveable thing that he has, has an Englishman any remedy at law. Money is given him instead of it. The sum is never equal in value to the injury sustained by the want of the thing sought. To keep the thing, at the price thus put upon it, is always at the option of the wrong doer.
In Roman law, general circumstantial testimony accepted in lieu of, or in addition to, special direct testimony from the same source, is exemplified in the cases where the oath denominated juramentum expurgatorium‡ was employed. The cases being penal, and the evidence on the criminative side neither sufficient for conviction nor yet for torture, the judge might, if he thought fit, call upon the defendant to swear to his non-delinquency in general terms: of a fixed formulary for that purpose, I know no instance. The description of the practice is obscure and vague enough, like everything else in Roman law.
In these as in all other penal cases, interrogation of the defendant himself was in the power of the judge: extraction, consequently, of a full body of confessorial evidence, or of the denegatory testimony given by him in lieu of it (testimony, of which, on the supposition of delinquency, more or less must have been false.)
Was this power employed? This was letting off a delinquent upon bad and unsatisfactory evidence, when, upon better evidence, and (in case of confession) the very best of all, he had been either shown to be not guilty, or shown to be guilty. This is recurring to inferior evidence, after receiving superior evidence from the same source. It is like Harpagon in the play:*Rends moi, sanste foudler, ce que tu m'as volé: the search had already been made, and produced nothing.
Has the power remained unemployed? This is employing the inferior to the exclusion of the superior evidence. It is as if the master, persuaded of the guilt of his innocent servant, had contented himself with saying to him—“Tell me whether you are guilty or no;” forbearing purposely to make search.
Juramentum suppletorium.—This was an oath in certain non-penal cases. It possessed, in common with the juramentum expurgatorium, the feature which renders it applicable to this purpose. In different nations, on different occasions, it appears to have been employed in the character of an evidentiary fact; right of some sort or other being the fact indicated—right to some service, such as that very extensive sort of service which consists in the transfer of money or money’s worth to the possessor of the right—right to an exemption from an obligation of that or some other nature, sought to be imposed on him.
The error applicable to the present purpose consists in the acceptance of a vague assertion, in addition to, or to the exclusion of, a specific statement; of an article of weak circumstantial evidence, in addition to, or in exclusion of, a body of direct evidence from the same source.†
2. Evidentiary facts excluded altogether, under the idea of their being weak; and even under that of their not being conclusive.
In the case of this, as of every other species of evidence, the production of it should neither be compelled nor admitted, when by such compulsion or admission more evil will be produced in respect of the collateral ends of justice (viz. avoidance of delay, vexation, and expense,) than by the exclusion of it, in respect of the direct end of justice, viz. by danger of indecision.
Except on this ground, however, there is no evidence, presented in the character of circumstantial evidence, the production of which ought not to be, not only permitted, but compelled. In particular, no such evidence ought to be excluded on the ground of deficiency in point of probative force.
Why should any be excluded? Operative, it is useful; inoperative, it is innocent.
The rashness with which, on different pretences, exclusions—peremptory and inexorable exclusions—have been put upon evidences of different descriptions by men of law, will be matter of ample observation in another place.‡ The ground which forms the subject of the present book is that on which this rashness has displayed itself with least violence.
From oral evidence,—circumstantial evidence orally delivered,—it seems to have abstained altogether: in the permanent texture of written evidence, it has found (as it were) solid ground to fasten upon.
In the shape of parole evidence,—be the evidence, when of this description, ever so slight—be the inference it affords ever so short of being conclusive,—there is no objection to the reception of it. In this shape, imagination cannot frame a circumstance more trifling, more inconclusive, than many are which have been admitted to be produced in evidence, and continue to be admitted in every day’s practice.
Admitted? Yes; and with great and just effect. Why? Because (not to speak of greater numbers) even two articles of circumstantial evidence—though each taken by itself weigh but as a feather,—join them together, you will find them pressing on the delinquent with the weight of a millstone.
Give to the evidence in question the form of a written document, the treatment it meets with is reversed. An inexorable bar is now opposed to it. Presented by the mouth of a witness, be its value ever so small, it is allowed to pass for whatever it is worth: presented in writing, if it fall short of being conclusive, it is not allowed to go for anything.
So it be exhibited vivâ voce, no matter how remote and inconclusive the evidentiary fact reported by the circumstantial evidence. When received, the impression made by it may be slight, or amount to nothing; but the lightness of it, how extreme soever, is never made into a ground for the exclusion of it. It is only when consigned to writing that it is scrutinized before admission, and, if not looked upon as weighty enough to be conclusive, is thrown out as worthless. Rash exclusion on one side, or equally rash exclusion on the other: rash exclusion of the lot of evidence in question, or rash exclusion of every other evidence that might have been opposed to it: such is the only alternative.
A record (says the immortal Gilbert, the father of the law of evidence,) a record is a diagram whereby right is demonstrated.∥ To appear, and not to command assent, is beneath its dignity: where demonstration enters, doubt finds no room to stand upon.
Numerous are the instances in which the admissibility of matters of record, in proof of the existence of other matters of record, has been disputed; and in some it has been disputed with success: with relation to the fact supposed to be indicated, the existence of the document in question has been pronounced no evidence; or (what comes to the same thing) the court has in that character declared it inadmissible—refused to pay regard to it.
That the ultimate decision which has taken place in consequence of this rejection, has been contrary to truth and justice, is more than, in all or any of these instances, I could take upon me to affirm: an opinion to that effect, well or ill grounded, would be of no use, materials for torming it are not forthcoming. Possibly, in each one of these instances, had the document been received in evidence, and its probative force been taken into consideration, it would have been found inconclusive: that is, the whole of the evidence on that side (whether the document in question constituted the whole or only a part of it) would have been considered in that light.
Nor yet will I take upon me to say (for perhaps it may not be to be known, and, if it were, the result of the inquiry would not be worth the trouble) whether, in the several instances in question, the case was, that the evidence was rejected without consideration of the tenor of it. Excluded or no in fact, and in that individual cause, it appears at any rate in the character of a species of excluded evidence, in the books of law.* Accordingly, in due form of legal architecture, a species of case is built upon the ground of it: and thereupon, as usual, in each succeeding cause in which the same or a similar point presents itself, the question is—not whether the fact happened, but whether the individual case in hand belongs or does not belong to that species of case.
What is the consequence? Though, in the individual case in hand, not a person concerned that is not persuaded of the existence of the fact indicated—the existence of the document which, supposing it to exist, would be decisive; persuaded, and that by the other document, the existence of which is exhibited in the character of the evidentiary fact; yet still the decision is to be directly contrary.—Why? Because the case is of the same species as that in which, in the former instance, an evidentiary document of the same or a similar species was regarded as inadmissible.
What, then, is the practical conclusion here contended for? It is this: viz. that every article of evidence, the nature of which is to operate in the character of circumstantial evidence—whether it be presented in the form of oral or of written evidence, and (if in the form of written evidence) whether in the form of a judicial document or any other,—ought equally to be admitted: the judge of fact being left equally free, in all these cases, to form his judgment of its probative force. That accordingly, in those instances where (as in England) the function of the judge of fact is exercised by a jury, the question respecting the probative force of the document in question, with reference to the fact alleged to be indicated by it, ought to be suffered to be submitted to them—in the same manner as the probative force of any article of circumstantial evidence exhibited to them through the medium of oral testimony.
Circumstantial evidence at large (supposing no legal cause of exclusion opposable to the testimony of the reporting witness,) circumstantial evidence, as such, is supposed to go to a jury, who, being simple and unlearned persons, are left to judge of it in their own way, without any better light for their guidance than the light of common sense. But it would be beneath the dignity of the sages of the law to suffer themselves to be led by any such vulgar guidance. When they judge, it must be by rule and measure: practice, not reason, is their guide. To judge of the probative force of evidence is not their practice: it is an operation out of the sphere of their practice, and beneath it. The sort of question to which they are in use to find answer, is, whether a piece of evidence shall be admitted or excluded. Between being admitted and being deemed conclusive—between a man’s being heard, and his exercising an absolute command over the decision—there is in the nature of things a medium obvious enough. But whatever there may be in the nature of things, in their practice there is none. If admitted (says the lawyer to himself) it is that sort of evidence that must be conclusive; for who is there that shall take upon him to pronounce it otherwise? Not I: it is not our province—it is not our practice, to weigh the force of evidence. Not the jury; for, being a law document, it belongs not to them to judge of it—such matters are too high for them. It I considered it as conclusive,—insomuch that, were I to take it into consideration, I should regard it as absolutely demonstrative of the fact indicated? Yes. But could I regard it in that light? No, I could not. What, then, is to be done with it? Done with it?—why, what else can be done with it than what we are so much in the habit of doing by evidence of all sorts, and for any the slightest reason, or no reason?—shut the door against it, and refuse to look at it.
3. A single article of circumstantial evidence set out as being of itself conclusive (viz. of the existence of the fact indicated,) is an incongruity exemplified in the case where, on the score of interest (i. e. exposure to the sinister and seductive action of this or that species of motive,) a man is excluded from the faculty of giving testimony in the cause. Titius has such an interest in this cause, that, supposing him to swear falsely to such or such a fact, and thereby commit perjury, and supposing his testimony to be believed, he would be a gainer by such perjury. By the impulse of that motive, he is prompted to commit perjury; therefore, if heard, he would perjure himself; therefore he shall not be so much as heard. The exclusion is just as rational as if Donnellan had been convicted of the murder on no other evidence than that of his being next in remainder to the estate. If this were reason as well as law, no witness ought ever to be heard in the character of a witness: no man ought ever to be out of the pillory.
Observe, that, though the assumption here made were always realized, it would not still be sufficient to warrant the exclusion grounded on it. For the strongest interest which a witness can have in being guilty of mendacity is inconsiderable, in comparison with the interest by which a defendant under examination in a capital case is prompted to incur the same guilt: and for this very reason, the evidence which a man in this situation yields to his own prejudice is of all evidence the most satisfactory. But of this more fully in its proper place.*
Circumstantial and direct evidence compared, in respect of probative force.
In respect of probative force, circumstantial evidence has sometimes been put into comparison with direct, both being considered in the lump: and, on a survey thus superficial, the superiority has sometimes been attributed to the one, sometimes to the other.
A few observations, for the purpose of clearing up the subject, may perhaps not be misemployed.
Possession of either affords, as observed above, no reason for neglecting the other.
But it may happen, that (especially in a penal case on the defendant’s side) evidence of one of the two sorts may be supposed to be wanting: or, in a cause of any sort, on each of the two opposite sides, evidence of the one sort may stand single or predominate.
Taking circumstantial in the largest sense, so as to include all the several modifications that have here been referred to that head,—it has already been observed that in no case perhaps was ever a mass of evidence formed, consisting of direct evidence alone, without any admixture of circumstantial: more especially not in any disputed case; and the rather, as different portions of direct evidence will operate in support of each other, thus acting each of them in the character of circumstantial: direct evidence being that which affords not, or at least requires not, any inferences; whereas circumstantial is in a manner composed throughout of inferences.
But circumstantial evidence is, on the other hand, presented oftentimes without any admixture of direct; and in that pure state, decisions are often grounded on it.
Regarded in an abstract point of view,—the essence of the species being considered, without regard to the quantity naturally found in a state of conjunction, in the several individual cases,—the inferiority of circumstantial, as compared with direct, is out of dispute. Direct evidence requires no inference: circumstantial evidence is composed of inferences: and, as already observed, there is scarce an inference to which it may not happen to be fallacious.
Strictly speaking, in the case of direct evidence (it is to be observed) there is always indeed an inference; but this inference is in every instance of the same nature,—from the report made by the witness, the inference that the facts contained in that report are true.
Of circumstantial evidence, by way of argument in proof of the superiority of its probative force over that of direct evidence, it has been said that it cannot lie. But it is only of certain modifications of circumstantial evidence that the proposition is true.
The evidence, and the only evidence, which cannot lie, is that which, without the intervention of any human testimony, presents itself directly to the senses of the judge. In this case is real evidence; and such involuntary evidence as is exhibited by the deportment of a party or an extraneous witness while undergoing the process of interrogation. In this same situation is even lying testimony (false responsion) itself, considered in respect of the inferences which, on the supposition of its mendacity, it affords—inferences in virtue of which its character is changed from that of direct to that of circumstantial evidence.
But all evidence, which, in its way from the source of evidence to the senses of the judge, has passed through the lips or the pen of a human being, is no less susceptible of that pernicious quality than direct evidence is. And in this situation are all the remaining modifications of circumstantial evidence (real evidence itself not excepted,) when, by having passed through the lips or pen of a deposing witness, it has sunk into the state of supposed real evidence reported.
But it is only in so far as it is a cause of deception, and in so far as it acts with success in that character, that lying is productive of effects adverse to the ends of justice: and real evidence, it has been seen, is no less capable of acting in this character than direct personal evidence: real evidence, like written evidence, being, in the hands of a forger, a source no less capable of producing deception, than, when passed through a mendacious mouth or pen, the direct testimony of a deposing witness is.
Thus much, however, is true, viz. that it is only here and there by accident that real evidence is capable of being fabricated, or by alteration adapted to a deceptitious purpose: whereas there is no case in which it may not happen to a man, in the character of a deponent, to stain his deposition by mendacity, if he sees what to him forms an adequate inducement, and is content to run the risk.
The features of advantage by which circumstantial evidence is in a more particular manner fitted for rendering service to the cause of truth and justice, seem to be as follows:—
1. By including in its composition a portion of circumstantial evidence, the aggregate mass on either side is, if mendacious, the more exposed to be disproved. Every false allegation being liable to be disproved by any such notoriously true fact as it is incompatible with,—the greater the number of such distinct false facts, the more the aggregate mass of them is exposed to be disproved: for it is the property of a mass of circumstantial evidence, in proportion to the extent of it, to bring a more and more extensive assemblage of facts under the cognizance of the judge.
2. Of that additional mass of facts, thus apt to be brought upon the carpet by circumstantial evidence, parts more or less considerable in number will have been brought forward by so many different deposing witnesses. But, the greater the number of deposing witnesses, the more seldom will it happen that any such concert, and that a successful one, has been produced, as is necessary to give effect to a plan of mendacious testimony, in the execution of which, in the character of deposing witnesses, divers individuals are concerned.
Thus, suppose a guilty defendant’s reliance placed in a false mass of alibi evidence. The greater the number of mendacious witnesses, who depose to their having seen him at the time in question, at a place at which he really was not at that time (they having been themselves each of them at a different place at that time,) the greater the number of false depositions, each of which is exposed to be disproved by true ones. And so in case of evidence to character.
3. When, for giving effect to a plan of mendacious deception, direct testimony is of itself, and without any aid from circumstantial evidence, regarded as sufficient,—the principal contriver sees before him a comparatively extensive circle, within which he may expect to find a mendacious witness, or an assortment of mendacious witnesses, sufficient to his purpose. But where, to the success of the plan, the fabrication or destruction of an article of circumstantial evidence is necessary, the extent of his field of choice may in this way find itself obstructed by obstacles not to be surmounted.*
One thing may, on this occasion, have a claim to notice: viz. that, in a great (probably the greater) number of instances, a fact necessary to be established in disfavour of the defendant’s side—a fact necessary to be established on the part of the plaintiff—belongs to that class of facts which is scarce capable of being proved to satisfaction without the aid of circumstantial evidence.
In this situation, for example, are all those facts of a psychological class, the proof of which, as against the defendant, is necessary to his conviction; and which cannot be proved by direct evidence other than that testimony of his own—that confessorial evidence—which nothing but an assured expectation of a sufficient mass of inculpative evidence from other quarters will ever prevail upon him to give. Criminative or otherwise inculpative consciousness,—inculpative, criminative intentions,—to which is added, in some cases, the existence and influence of this or that particular sort of motive;—to one or other of these heads may be referred the psychological facts, proof of which, one or more of them, is (in case of most of the offences occupying a high rank in the scale of criminality or penality) regarded, and that justly, as indispensable.
But these are among the facts, the existence of which no defendant, who does not regard his case as rendered desperate by other evidence, will ever acknowledge. Proof, therefore, whatsoever they are susceptible of, if they receive, they must receive from extraneous evidence: and, until the parable of the man with windows in his breast be realized, such extraneous evidence cannot be of any other nature than that of circumstantial evidence, viz. under one or other of the modifications as herein above brought to view.*
OF IMPROBABILITY AND IMPOSSIBILITY.*
Improbability and impossibility are names, not for any qualities of the facts themselves, but for our persuasion of their non-existence.
Impossibility and Improbability are words that serve to bring to view a particular, though very extensive, modification of circumstantial evidence.
The occasion on which they are employed,—the occasion, at least, on which, under the present head, I shall consider them as employed,—is this:—on one side, a fact is deposed to by a witness; on the other side, the truth of it is denied—denied, not on the ground of any specific cause of untrustworthiness on the part of the witness, but because the fact is in its own nature impossible: impossible, or (what in practice comes to the same thing) too improbable to be believed on the strength of such testimony as is adduced in proof of it.
What is the nature and probative force of this modification of circumstantial evidence? Is there any, and what, criterion, by which impossible facts, or facts which are to such a degree improbable, as to be, for practical purposes, equivalent to impossible ones, may be distinguished from all others?
If any such criterion existed, its use injudicature would be great indeed. By the help of it, a list of such impossible and quasi-impossible facts might in that case be made out—made out by the legislator, and put into the hands of the judge. To know whether the probative force of the testimony in question were or were not destroyed by this modification of circumstantial disprobative evidence, the judge would have nothing more to do than to look into the list, and see whether the species of fact in question were to be found in it.
Unfortunately, there exists no such criterion—no possibility (if the word may here be employed without self-contradiction) of making up any such list. Not only would one man’s list contain articles which another man would not admit into his; but the same article which would be found in one man’s list of impossibilities, would be found in another man’s list of certainties.
From a man who sets out with this observation, no such list, nor any attempt to form one, can of course be expected. Yet, on the following questions, some light, however faint, may be, and will here be endeavoured to be, reflected.
1. What it is men mean, when they speak of a fact as being impossible—intrinsically impossible?
2. To what causes it is owing that one man’s list of impossible facts will be so different from another’s?
3. Different modifications of impossibility: different classes of facts which men in general—well-informed men in general, may be expected to concur in regarding as impossible.
4. Among facts likely to be, in general, considered as impossible, what classes are of a nature to be adduced in evidence?
When, upon consideration given to a supposed matter of fact, a man, feeling in himself a persuasion of its non-existence, comes to give expression to that persuasion,—he pronounces the matter of fact, according to the strength of such his persuasion, either more or less improbable, or impossible.
In and by the form of words thus employed for giving expression to that which is in truth nothing more than a psychological matter of fact, the scene of which lies in, and is confined to, his own breast,—a sort of quality is thus ascribed to the external phenomenon, or supposed phenomenon; viz. the matter of fact, or supposed matter of fact itself. Upon examination, this quality, it will be seen, is purely a fictitious one, a mere figment of the imagination; and neither improbability and impossibility on the one hand, nor their opposites, probability and certainty, on the other, have any real place in the nature of the things themselves.*
So far as concerns probability and improbability, the fictitiousness of this group of qualities will scarcely, when once suggested, appear exposed to doubt.
Take any supposed past matter of fact whatever, giving to it its situation in respect of place and time. At the time in question, in the place in question, either it had existence, or it had not: there is no medium. Between existence and non-existence there is no medium, no other alternative. By probability—by improbability,—by each of these a medium is supposed—an indefinite number of alternatives is supposed.
At the same time, the same matter of fact which to one man is probable, or (if such be his confidence) certain, is to another man improbable, or, if such be his confidence, impossible.
Often and often, even to one and the same man, at different times, all this group of fictitious and mutually incompatible qualities have manifested themselves.
If his persuasion be felt to be of such a strength, that no circumstance capable of being added to the supposed matter of fact could, in his view of the matter, make any addition to that strength; or if, on looking round for other conceivable matters of fact, he fails of finding any one, in relation to which his persuasion of its non-existence could be more intense,—impossible is the epithet he attaches to the supposed matter of fact—impossibility is the quality which he ascribes to it.
If, on the other hand, a circumstance presents itself, by which, in his view of the matter, an addition might be made to the intensity of such disaffirmative persuasion; or if the supposed matter of fact presents itself as one in relation to which his persuasion of its non-existence might be more intense; in such case, not impossible, but improbable, is the epithet,—not impossibility, but improbability, is the quality ascribed.
Certainty, which is the opposite to impossibility, or rather of which impossibility is the opposite, is applied to the persuasion, and from thence to the supposed matter of fact. It is not, any more than impossibility, applied or applicable to testimony.
As certainty, so uncertainty, applies itself to the persuasion and the fact, and not to the testimony. In the scale of persuasion, it embraces all degrees except the two extremes. The existence of a fact is not matter of uncertainty to me, if the fact be regarded by me as impossible.
Certainty, therefore, has for its opposite, uncertainty in one way—impossibility in another. Uncertainty, in the language of logicians, is its contradictory opposite—impossibility, its contrary opposite.
The fiction by which (in considering the strength of a man’s persuasion in relation to this or that fact, and the probative force of any other matter of fact when viewed in the character of an evidentiary fact in relation to it) occasion is taken to ascribe a correspondent quality, indicated by some such words as certainty and probability, to the principal fact itself,—appears to be like so many other figments, among the offspring of the affections and passions incident to human nature. It is among the contrivances a man employs to force other men to entertain, or appear to entertain, a persuasion which he himself entertains or appears to entertain, and to make a pretence or apparent justification for the pain which he would find a pleasure in inflicting on those on whom a force so applied should have failed to be productive of such its intended effect.
Were it once to be allowed, that, as applied to the facts themselves which are in question, probability and certainty are mere fictions and modes of speaking; that all of which, on any such occasion, a man can be assured, is his own persuasion in relation to it; that that persuasion will have had for its cause some article or articles of evidence, direct or circumstantial, real or personal, and will be the result of, and in its degree and magnitude proportioned to, the probative force of that evidence; that, of such evidence, neither the probative force, nor consequently the strength of his persuasion, are at his command; that it is not in the power of any article of evidence to have acted with any degree of probative force upon, nor consequently to have given existence to any persuasion in a mind to which it has not been applied; and that therefore it is not in the power of any evidence to give either certainty or probability to any matter of fact (the matter of fact being, at the time in question, either in existence or not in existence, and neither the evidence nor the persuasion being capable of making any the slightest change in it,) that it depends in a considerable degree upon the mental constitutions of A and B respectively, what sort of persuasion, if any, shall be produced in their minds by the application of any given article of evidence; and that it is no more in the power of evidence applied to the mind of A, and not to that of B, to produce in the mind of B a persuasion of any kind, than it is in the power of evidence applied to the mind of B, and not of A, to produce a persuasion on the mind of A;—were all this to be duly considered and allowed, neither the existence nor the non-existence of a persuasion concerning a matter of fact of any sort, would have the effect of presenting to any person any other person as a proper object of punishment, or so much as resentment.
But the certainty of this or that fact is assumed as perfect and indisputable: and thus he of whom it is conceived that he fails of regarding, or of representing himself as regarding, that same fact in such its true light, is on no better foundation considered and treated as being either mendacious, or perverse and obstinate: perverse and obstinate, if he fails of regarding it in that light—mendacious, if, it being impossible to him to fail of regarding it in that light, he speaks of himself as if he did not.
When a man is himself persuaded—or though he does but, under the impulse of some interest by which he is actuated, appear to be, or profess to be, persuaded—of the existence of a fact,—it is matter of pain and vexation to him to suppose that this same persuasion fails of being entertained, still more to observe that it is professed not to be entertained, by those with whom, on the occasion of it, he has to deal.
Hence it is that, in his mind and in his discourse, to entertain it is made matter of merit—to fail to entertain it, matter of demerit and blame, on the part of others with whom he has to do: and, to cause them to pursue that supposed meritorious line of conduct, the power of reward, if within his reach, is employed; and to deter them from the opposite conduct, even the power of punishment: of both which powers, in the application thus made of them, mankind have been unhappily accustomed to see and to feel the exercise, carried to a pitch so repugnant to the dictates of humanity and reason.
Impossible facts distinguished from verbal contradictions.
It having been shown that improbability and impossibility, applied to a matter of fact, are merely terms expressing a certain strength of persuasion of the non-existence of that fact—what remains is, to show what are the grounds on which such a persuasion is liable to be entertained: to show, in other words, in what consists the improbability or impossibility of any alleged fact.
Previously, however, to entering upon this inquiry, it will be necessary to discard out of the list of impossible facts, articles that might be in danger of being considered as included in it. These are—
1. Contradictions in terms: or, as they might be termed, verbal impossibilities. Examples: Two and two are not so many as four:—Two and two are more than four:—The same thing is, and is not, at the same time.
The truth is, that in these cases no matter of fact at all is asserted; consequently none of which it can be said that it is impossible.*
2. Inconceivable facts. Sometimes to this class, sometimes to the former, belong the opposites of a variety of propositions of a mathematical nature: e. g. that two and two should be either more or less than equal to four: that two right lines should of themselves inclose a space.†
No facts universally recognised to be incredible.
Before I enter upon the topic announced by the word incredibility, a topic the consideration of which does really belong to the subject of judicial evidence, it may be of use to clear the inquiry of a topic that does not belong to it, viz. impossibility. On the former, it will be at all times in the power of a reasonable man, in the station of a judge, to form a persuasion sufficient for his guidance: on the other, it will not he in the power of a reasonable man, in that station, to form a persuasion sufficient for his guidance in the business of judicature: and, of the introduction of the topic in argument, nothing but perplexity and illusion can be the result.
In truth, the degree of incredibility that can with propriety be the subject of consideration for any purpose of judicature, is merely relative and comparative. The object of comparison is the probative force of the evidence by which the existence of the fact considered as improbable is indicated: and the question is, which of the two forces ought to be deemed the greater?—the probative force of the testimony by which the existence of the fact in question is indicated? or the disprobative force designated or pointed to by the word incredibility, as employed to express an attribute of the fact? Let the disprobative force of the incredibility be but ever so little greater than the probative force of the testimony by which the existence of the fact is maintained, it is sufficient for the purpose of judicature: the question concerning any superior degree is purely speculative, not applicable to judicial practice, and, as such, irrelevant to the business of judicature—to the question (whatever it be) before the court.
In a loose and popular sense, nothing can be more frequent than the use of the word impossible, and its conjugate impossibility: frequent, and (such is the exigency of language,) we may venture to say, necessary. But, if applied to the subject of judicial evidence, to express an idea distinct from, and (if one may so say) superior to, that of improbability—a high degree of improbability,—it then becomes productive of the confusion above spoken of.
The impropriety of introducing the word in this strict sense, on a judicial occasion (not to speak of other occasions,) may be rendered apparent by this consideration, viz. that in the use of it in this sense is involved the assumption of omniscience and infallibility on the part of him who uses it.*
Examples lending an apparent countenance to the use of it in this strict sense, may, I am aware, not be altogether wanting: but, upon a closer inspection, it will appear, that the objects in question either do not come at all under the notion of facts, or at any rate not under the notion of such facts as are capable of being made the subject of evidence.
Take the following examples:—
1. It is impossible for the same thing to be, and not to be. The negative or opposite of this, it may be said, is a fact, the incredibility of which will be recognised by everybody. And so with the two following:—
2. Where there is no property, there is no injustice.
3. Two and two make four.
Answer.—In the first case, no fact, properly speaking, is concerned. In that case we have a proposition; but it has not any fact for the subject of it. Examined closely, it will be found to be no more than a proposition concerning the signification of words. So vague and so inapplicable to any useful purpose is the import it conveys, that it is difficult to say what it does amount to: perhaps an observation relative to the use of the word not; showing an occasion on which it cannot with propriety be employed.
No fact at all being indicated by the proposition in question, no fact is indicated by it capable of forming a subject of controversy in a court of justice.
2. The second supposed example is brought to view on account of the deserved celebrity of the author, and as an instance to show how idle and nugatory may be the language of the acutest mind, when dealing with propositions of an extensive import, without having as yet scrutinized into their contents, and applied them to particulars.
Howsoever it may be with the preceding proposition, this one may readily be seen to be neither more nor less than a proposition concerning the import of words. Where you cannot, in the way in question, employ the word property, neither can you, in the way in question, employ the word injustice.*
3. That the proposition, two and two make four, is neither more nor less than a proposition concerning the import of words, seems evident enough, as soon as intimated. To these same apples to which, when taken together, I apply the numeral word four,—to these same bodies, when divided into two parcels equal in number, I apply respectively the numeral words two and two; and in both cases with equal propriety, and conformity to the usage of language. In this, then, we have another instance of a proposition not enunciative of any fact—of any fact having for its subject-matter anything other than the occasion on which the words in question have been wont, in the language in question, to be employed.
In this example, then, we do not see any exception to the general proposition in question; viz. the proposition, that, of facts liable to be the subject of judicial controversy, there is no assignable one which all men would be sure to be agreed in speaking of as incredible:—and this for the three following reasons:—
1. The proposition in question—two and two make four—is not, properly speaking, the enunciation of a matter of fact,—only of a manner of employing words.
2. If that, which it is an enunciation of, were, properly speaking, a matter of fact, it would not be of the number of those facts which are liable to be the subject of judicial controversy or exhibition.
3. Although it were a fact, and liable to be the subject of judicial controversy or exhibition, there would be no assurance that all men would be agreed in speaking of the existence of it as certain, or the negation of it as incredible.
Did any such thing exist as a catalogue of universally-acknowledged impossible, or even incredible facts, and these facts liable to be brought to view in judicature,—the facts being arranged in alphabetical order, open the dictionary, the cause is at an end.
Unfortunately, so far from a collection of such facts, whether any one such fact be to be found, is more than I would venture willingly to determine: and if forced to answer, my answer, I suspect, would rather be in the negative.
If, among physical facts, there should be one that presented a fairer chance than another of being allowed to occupy a place in such a catalogue, it should, I think, be this, viz. the existence of any body in two distinct places at the same time. But this, which, by the greater part of mankind, would (I suppose) be admitted into the catalogue of incredible facts, is, by one portion of mankind, nor that an inconsiderable one, held not to be incredible without one exception: and in the case to which that exception extends, it is held to be not simply not incredible, but certain and indisputable. Far be it from me to mention this deviation from the more common opinion, as matter of reproach to the deviators: I mention it only in proof of the discrepancy—perhaps the incurable discrepancy—of opinion, that prevails among mankind, and as one out of so many other considerations which concur in impressing the impropriety of precipitate exclusions and conclusions on the mind of an upright and zealous judge. As to the exception in question; whether in point of truth it be warranted or no, it belongs not to the present subject to inquire. Fortunately, supposing it unwarranted,—so long as the proposition, how paradoxical soever, confines itself to the highly extraordinary case to which alone it seems to have ever hitherto been applied,—no error, if it be one, can be more innocent to every purpose of judicature.
As there is nothing whatever (supposing it possible) that men cannot be made to do,—so there is no fact whatever that men may not be made to speak of as certain or as incredible—no proposition which they may not be made to speak of as certainly true or certainly false,—by interest, real or imagined—by hope of pleasure, or fear of pain, from a source conceived (rightly or erroneously) to exist. In the particular case in question (two and two make four)—this subjection of discourse (as of all other modifications of human agency) to interest—this consequent versatility and ununiformity of discourse, has not, perhaps, been exemplified. But, in an example that stands next to it, the exemplification has actually and notoriously taken place. That two and two make four, has, perhaps, never been denied. But that one and one and one make three, has been denied. That in its application to most subjects it has been generally spoken of as true, is evident enough; otherwise, the known usage of language, and the known import of the word three, could not have obtained. But, that there is a subject in relation to which this agreement does not obtain, is, in many countries, matter of equal notoriety. Agreed, as applied to apples; agreed, as applied to men; not agreed, as applied to Gods.
I mention it, not as meaning to take a part in such a controversy; I mention it only as a striking proof, as well as illustration, that there is no fact whatever, real or nominal, that is out of the reach of controversy:—a proposition which, to the present purpose, has already been shown to be of no small practical importance.
In vain would it be to say, that the exception here is in language merely, not in persuasion. As a general proposition, it is but too true, that persuasion and language are but too often at variance; but in the instance of no one individual person would I take upon special grounds, that any such variance had place in this particular case. Granting, however, that, on the present occasion, persuasion were not conformable to language, what would it signify to the present purpose? It is in language, and in language only, that the catalogue in question, the supposed catalogue of facts universally agreed to be incredible, would be expressed.
By these same considerations it may be rendered equally apparent, that if, at any given moment, an article were in existence fit for, entering into the composition of such a catalogue, the next moment might at any time expunge the article, and leave the catalogue a blank. Neither over internal persuasion, nor over exterior discourse, is the power of interest less at one time than another. Today, men are agreed, that, to the truth of the proposition “one and one and one are equal to three,” there is but this one exception. Let human laws, or opinion of divine command, or any other efficient cause of interest, experience an appropriate change, there shall be no exception at all, or any number of exceptions. And so in regard to the proposition, two and two make four, or any other proposition of grammar, mathematics, or physics.
Under the influence of interest, so far is what may be termed the natural incredibility of a fact from excluding it from a place in the catalogue of credible facts, and vice versâ, that its tendency may be, and seems to be, to provide it with a place in that same catalogue, and a place even in the class of certain facts. For, let the expectation of reward be annexed to the practice of regarding or speaking of facts naturally incredible as if they were certain, and let this reward be to be obtained pure, earned without sacrifice in the shape of reputation, or any other shape, what should hinder it from being embraced? Credo quia impossibile est, is the often-mentioned and natural result of the determination generated, and enthusiasm lighted up, by prospects of this kind. For at what cheaper rate can the matter of reward be earned in any shape? And so of punishment: a principle of action, the force of which, when applied in adequate quantity, is, in its operation, still more certain and irresistible.
What the influence may be (beneficial or otherwise) of the matter of reward or punishment so applied, to the interests of morality, knowledge, or social harmony, belongs not to the present place. When, of the above-mentioned proposition, which does belong to the present place, the truth is established, the inquiry is at an end.
Improbability and impossibility resolvable into disconformity to the established course of nature.
An incredible fact, as contradistinguished from a verbal contradiction (whether improbable or impossible be the epithet by which the particular strength of the belief in its non-existence is designated,) owes its incredibility to one cause, and to one cause only.
This cause admits of a variety of appellations. On the part of the matter of fact deposed to by the affirmative evidence, disconformity (as supposed) to the established course* of nature: thus may be expressed what seems to be the most apposite and the clearest designation, of which, in any such small number of words, it is susceptible.
From the course of nature at large, that of the mental part of man’s nature requires to be distinguished; hence disconformity in a physical respect, and disconformity in a psychological respect.
The remarks which follow, will, in the first instance, refer more particularly to physical, as contradistinguished from psychological facts. But they will, for the most part, be found applicable equally to both.
As it is only from evidence, coming under one or other of the descriptions already brought to view, that any notion whatever concerning the established course of nature can be derived; and consequently any notion concerning what is conformable to that course; so neither from any other source can any notion be derived respecting the disconformity of any supposed matter of fact to that same course.
The evidence thus characterized will, therefore, be composed of an indeterminate and indefinite multitude of matters of fact, drawn from all the evidence of every description that to the mind of the person in question (viz. the judge,) have happened to present themselves during the whole course of his life; and composed of all such facts as present themselves to him as bearing the sort of relation in question, to the matter of fact in question.
To produce disbelief of the existence of the matter of fact in question, this disconformity must be such as (in his judgment) to render its existence incompatible with a certain portion, at least, of those other numberless matters of fact, of the existence of which he has been persuaded by the indeterminate but ample mass of evidence above indicated.
When the improbability (that is, the apparent, the relative, improbability) of an alleged fact, is set in the balance against testimony, it is still at bottom little more than testimony against testimony. Of the facts of the existence of which a man is persuaded, the knowledge, the persuasion, is derived partly from his own perceptions, partly from the alleged perceptions of others. But, in the unmeasurable mass of facts which (at least in a country where civilization is tolerably diffused) the most ignorant man is said to know, the number of those of which his knowledge is derived from his own immediate perceptions—from his own individual experience, is small, in comparison with those, for the knowledge or supposed knowledge of which, he stands indebted to the experience or supposed experience of others.
Concerning individual facts,—so far as mere perception, exclusively of inference drawn from perception by judgment, is concerned,—no force of exterior evidence can either increase or diminish the degree of persuasion of which such perceptions cannot but have been productive. But in regard to species of facts, there is not one, perhaps, concerning which the persuasion derived by a man from his own experience, would not be capable of being overborne by allegations of contrary experience on the part of other men. What makes our confidence so entire as it is in regard to the existence of those species or classes of individual facts, the existence of which is announced by the phrase which exhibits as the cause of it this or that law of nature, is,—that, so often as it falls in his way to make the trial, a man finds his own perceptions in relation to them confirmed by the reputed perceptions of all other men without exception.
On the three modes of disconformity to the course of nature;—viz. 1. Disconformity in toto; 2. Disconformity in degree; 3. Disconformity in specie.
It has been seen, that in all cases without exception, in which any matter of fact is supposed by any person to be incredible, the ground of the supposition is a supposed disconformity between this matter of fact, and what is by the person in question considered to be the established course of nature.
But this disconformity is of three kinds; and corresponding to these three kinds of disconformity are three classes, into which facts supposed to be incredible may be divided.
1. Facts disconformable in toto: facts which, supposing them true, would be violations of some manifest and generally-recognised law of nature: e. g. a body at the same time in two different places.
2. Facts disconformable in degree: true, perhaps, in every day’s experience, in certain degrees; false, in the degree in which, by the testimony in question, they are stated as being true: e. g. a man sixty feet high.
3. Facts disconformable in specie: facts altogether different from any which have ever been observed, but which, if true, would not be violations of any generally-recognised law of nature: e. g. the unicorn.
It is manifest, that in the two last of these classes, the incredibility of the fact rises only to a greater or less degree of improbability, not to that of impossibility. The supposed facts are not repugnant to the established course of nature; they are only not conformable to it: they are facts which are not yet known to exist, but which, for aught we know, may exist; though, if true, they would belong to the class of extraordinary facts, and therefore require a greater degree of evidence to establish their truth, than is necessary in the case of a fact exactly resembling the events which occur every day.*
Though facts of these two classes can never be properly said to be impossible, they may be improbable to a degree little short of practical impossibility.
I. Facts disconformable in toto: facts repugnant to the course of nature.
To give a complete list of facts impossible in toto, would be to give a complete list of those general observations which have been, or use to be, characterized by the appellation of laws (physical laws) of nature.
To give any such complete list, will, I suppose, be universally recognised as beyond the limits of human knowledge, in its present state: a complete system of physics might be considered as included in it.
By way of illustration, I will venture to propose a few articles as a specimen of what might be the contents of such a list.
Specimen of the laws of nature common to all matter, as far as hitherto known:—
1. No two bodies can be in the same place at the same time (cases of penetration and inclusion not excepted.)
2. No one body can be in two places at the same time.
3. All known bodies are, in proportion to their quantities of matter, affected by the law of gravitation.
4. All bodies are governed by the law of gravitation, except in so far as an exception to that law is created by any of the other known causes of motion or rest. In other words,
5. For each instant of time, the place of every body, of every particle of matter within the reach of our observation, is determined by the law of gravitation, modified by the other known primum mobiles, or causes of motion and rest. These seem to be as follows:—
1. The centrifugal force.
2. The force of cohesion—the attraction observed to take place amongst the homogeneous parts of the same whole.
3. The force of chemical attraction; to which, perhaps, may be to be added repulsion. The attraction (and repulsion) observed to take place amongst the contiguous heterogeneous parts of the same whole.
4. The force of repulsion or elasticity, given to the particles of other matter by caloric, when, being united with them, it forms a gas.
5. The force of expansion and contraction (repulsion and re-attraction) produced by the addition and subtraction of caloric to and from other bodies in the states of solidity and liquidity.
6. The force of electrical and galvanic attraction and repulsion.
7. The force of magnetic attraction and repulsion.
8. The force of muscular motion put in action by the will.
9. The force of muscular motion put in action by the vital power, in the case of the involuntary motions that take in living animals.
10. The force of muscular motion put in action in the way of animal galvanism.
11. The force of vegetation.
Of these forces (setting aside the centrifugal force, the existence of which is rather matter of inference than observation) the influence of gravity is so much more extensive and powerful than the rest, that the observation expressive of its existence seems entitled to be distinguished by the appellation of the general or universal law of nature, applicable to all bodies of which we have any sort of cognizance while the other laws of nature, as above brought to view, may be considered as constituting so many exceptive clauses, with reference to that general law. In most of these instances, the force is not perceptible but in the case where the distance between the particles concerned is extremely small: and accordingly, in few, if any, can it be clearly perceived to have place beyond the limits of the planet which we occupy.*
Taking this, for argument’s sake, as a complete list of primum mobiles (and I am inclined to think it would not be found to be very far from a complete one,) any motion which, being in a direction opposite to that of the attraction of gravitation, should not be referable to any one of those particular causes of motion, may be pronounced impossible: the existence of any such motion on any given body upon or near any part of the earth’s surface, for and during any given space of time an impossible fact.
A particular example may here help to explain the nature and probative force of impossibility—physical impossibility, and that impossibility in toto—as adduced in the character of an evidentiary fact disprobative of the supposed fact, supposing the existence of it averred by direct testimony.
In one or more of the many books formerly current on the subject of witchcraft and apparitions, I remember reading the following, stated as a fact. In a room somewhat lofty, not by any muscular exertions either of his own or of any other person, other persons being however at the same time in the same room, a man finds himself gradually raised up to the height of the ceiling, and let down again; his body all the time not being in contact with any other, except those of which his apparel was composed.
This I would venture to give as a specimen of a sort of fact practically speaking impossible, viz. such an one as I could not be persuaded of the truth of, not only upon the testimony of any one single witness, but upon the testimony of any number of witnesses that ever found their aggregate testimony contradicted by other witnesses in any court of justice. The supposed fact impossible?—why impossible? Because it is in repugnance to the law of gravity, and not in conformity to any of those particular laws which operate as so many exceptions to that general law. Be it so: it cannot be brought under any of these particular laws. But, supposing these to be the only particular laws, or say causes of motion, as yet known,—can you take it upon you to pronounce it impossible there should be any others? The steam-engine, as a source of power, is but a century and a half old: the knowledge of electricity, as to the great bulk of its effects, not so much as a century: galvanism, but of yesterday:—till the other day there were but six primary planets moving round our sun; now there are eleven. Are new primum mobiles less possible than new planets?
I answer:—As to the discovery of new causes of action—causes apparently distinct from, and not referable to, any of those above enumerated—I am not disposed to regard it as in any degree improbable. Yet, as to any causes adequate to the production of any such effect as the effect in question,—in the discoveries just spoken of there is not anything that would prevent me from regarding it as being, in the sense above determined, practically impossible. Why? Because it appears to me practically impossible, that, after so long a course of physical experience and experiment, any primum mobile, of a force adequate to the production of an effect of such magnitude, can have remained undetected. As to the power of steam, the application of it to any useful purpose is not so old as a century and a half; but the existence of it as a source of motion could never have been altogether a secret to any one who ever boiled a pot with a cover to it.*
II. Facts disconformable in degree.
Of facts impossible in degree (meaning always by impossible, such as would generally be accounted so,) the exemplifications that might be given are innumerable. These consist in deviations from the ordinary quantities: deviations extending to such a degree, as on that account to be regarded as incredible.
Let us take those which regard the manner of being of the human species:—
Various are the grounds on which facts having, like the above, the human species for their subject, present a claim to preference. Being more interesting than any others, they are more open to observation, and more likely to attract it: and they are wont, on a variety of occasions, some of them more than others, to come in question on judicial occasions: in particular, time of gestation, and duration of life without food; but most of all the former, legitimacy or illegitimacy depending upon it.
Of the six examples thus taken for the purpose of illustration, two admit of deviations at both sides; viz. extent of stature, and time of gestation. In the other cases, there is no room for deviation but on the side of increase: the minimum being in the ordinary course of nature.
In relation to facts objected to as incredible in consideration of the magnitude of the degree in which they deviate from the ordinary course of nature, erroneous judgment on the part of the judge seems rather more to be apprehended in disaffirmance of the supposed incredible facts, than in affirmance. Why? Because, in most instances of facts, the credibility of which is liable to come in question in judicature, the judge (especially supposing him a man of a mind cultivated in a degree at all approaching to what befits a man in such a situation) will naturally be more or less apprized what is the ordinary course of nature: but, of the known deviations—of the degrees of deviation known by men possessed of appropriate information in the line in question—it may well happen to him to be very imperfectly, if at all, apprized. If, then, without having recourse to scientific evidence (viz. to such as applies in particular to the species of fact in question,) he takes upon him to decide in disaffirmance of the fact, error on his part may be but too naturally the consequence.
Take, for instance, the question,—Of what length of time passed without food, the patient surviving, may the existence be regarded as credible?
Anno 1753, at the Old Bailey, London, Elizabeth Canning was convicted of perjury. Of the mendacity of her testimony, the whole evidence taken together, I have not the smallest doubt. But one part of it consisted in an affirmation on her part of her having passed a certain length of time almost without food. In the course of the history of that cause, several persons, it appears, regarded the extraordinariness of this supposed fact as sufficient to render it incredible. This judgment I should not expect to find confirmed by the opinion of well-informed scientific witnesses. Why? Because at different times I remember reading different accounts of the protraction of animal, and in particular human life, without food, for much greater lengths of time—accounts that did not appear on the face of them to present any suspicious circumstances.
In the list of cases above exhibited, there are few (if any) in which it might not happen, in one way or other, to come into question in the course of judicature; and this without having recourse to wagers, by means of which, if legalized, there is no sort of fact whatever that may not be made to call for the decision of a judge.
1. Duration of life. Titius is nominee in a life-annuity, or sends to put in a claim of property in a distant country. The age of Titius is 170, 160, 150. Parr is said to have passed his 151st year, Jenkyns his 169th. But the judge either has never heard of the reputed age of Jenkyns or of Parr, or disbelieves it. In some periodical print an article appeared some years ago, stating as still in existence a man who had passed the age of 180.
2. Duration of the time of gestation. This is a question of no very unfrequent occurrence, and (in respect of the legitimacy of children, and the honour of parents) of the utmost practical importance. There are well-attested instances of women whose pregnancy has continued ten, eleven, or even twelve months. In the case of a pregnancy protracted for the term of ten months, a rash judge, too decided to suffer the exhibition of scientific evidence on this point, might do a cruel injustice.
3. Number of children at a birth. Of three children born at the same time, of the same mother, the existence (suppose) has been put out of doubt by other evidence. Comes another person, claiming property on the ground of succession, and says, “My mother had four children at a birth, and I am one of them.” “Four at a birth!” says the judge: “that I never can believe; three I can believe, for I have known instances of it. I will not hear your evidence.” Five at a birth I remember reading of in newspapers, with individualization of names, times, and places.
4. Number of children born of one woman. The like precipitation is capable of taking place in this case as in the last preceding one. Between thirty and forty, I am clear that I have read of.
5. Duration of fecundity in women. Delivery some years after seventy, I think I have read of. An estate is claimed on behalf of a child, whose mother, it is alleged and confessed, when she was delivered of him, was turned of sixty. “No,” says our rash judge; “the fact is impossible: it is needless to hear evidence.”
But such rashness—such irrational refusal to hear evidence—is it to be supposed?—Alas! the rashness here supposed as credible on the part of this or that individual judge, is nothing in comparison to the rashness which continues to be exemplified to this day, in the most enlightened countries, by the whole fraternity of judges.
In regard to facts devious in degree, it is impossible to fix upon any point of the scale, as being the point which separates the incredible degree from the credible. At a large distance above the ordinary or mean level, to a person determined to take the distance large enough, there will commonly be no difficulty. But begin with the most devious degree allowed to have been exemplified,—propose the next degree, and then the next; scarce any man that will not find himself perplexed, and even in an inextricable degree, to say at what degree credibility ends, incredibility begins:—1. Stature. A man a hundred feet high, incredible. But nine feet? In London, nominal nine feet has been exhibited, to make allowance for exaggeration, say eight feet. But, eight feet being certain, shall eight feet and an inch be incredible? The credibility of eight feet and an inch being admitted, add an inch more, and so on without end.—2. Force. No man living who is capable of lifting upon his shoulders a fat and full-grown ox of the largest breed; few men who would not have been able to deal in that same way by that same animal when just born. Take any man, and propose it to him, or to any one else, to say, at what age of the animal, or at what precise weight in pounds and ounces, the man’s power of lifting him will cease.—3. Fecundity at a birth, or total. According to the legend, in consequence of the imprecation of a beggar woman, the Countess of Desmond had as many children as there are days in a year: whether at one or more births, I cannot take upon me to recollect. A delivery of five at a birth has been mentioned, with all the circumstances, within these few years, in the English journals. Taking this number for certain, will six be incredible? Thus we get on, one by one, till we come to the Countess of Desmond’s number: only, the more there are of them, the smaller they must be.
A treatise on the deviations from the ordinary course of nature has been spoken of as a necessary part of an encyclopedical system, by Bacon. In the synoptical table prefixed to the first French Encyclopedia, the mention of it has been revived by D’Alembert. Of a treatise on this subject, the fundamental part would consist of a statement of the alleged facts. In regard to such facts as are more particularly apt to come in question in a court of judicature—such, above all, on the belief or disbelief of which (as in some of the above examples) the property and honour of families may depend,—might it not be of use that arrangements should be taken by governments for their authentication and registration? At present, the credit of facts of this description rests, in general, on no firmer foundation, than that of a paragraph in this or that periodical publication. And who can say but that it may sometimes happen that a false fact of this description shall have been inserted, in the view of its being, on an individual occasion, employed in evidence? In the character of the best and only evidence which the nature of the case admits of, the paragraph may or may not be listened to by the judge. But,—though it should not be admitted in a direct way,—in an indirect and circuitous way it may, nevertheless, operate in the character of evidence. The judge will, at any rate, not refuse to hear scientific evidence;—but the opinion of the witness is drawn (for from what better source can it be drawn?) from this or that paragraph, which he has read in a newspaper, with or without the faculty of recollecting the source from whence he took it.
III. Facts disconformable in specie.
When, on a survey of the catalogue of incredible, or supposed incredible, facts, we come to the class of those which, if incredible, are so on this ground; and when, accordingly, on this ground, we set about the task of drawing the line between the credible and the incredible,—we find ourselves on an ocean without a compass, and that ocean without bounds. By what consideration can any bounds be set to the modifications of matter?—to the modifications that may have been exemplified in this place, in that place, or in any place? Take any one of the species of men, spoken of as existing, by Pliny or Mandeville,—who shall say but that, in some place or other, at some time or other, that species may have existed?—who shall say that in no place whatever, at no time whatever, the existence of such species would be other than absolutely incredible?
By anatomists, some of them, if examined, might perhaps be found to involve physiological incompatibilities; but such incompatibilities will not be unapt to be too hastily assumed. Angels are painted by adding goose’s wings—devils by adding bat’s wings—to an ordinarily-shaped human body. Judging from birds, an anatomist may pronounce the use of such an appendage incompatible with such a shape. Yes: supposing no greater quantity of muscular force capable of being exerted by a given quantity of matter than what is exerted by men or birds: but what will he say of fleas?
At this moment I have before me a copy of the book known to antiquaries by the name of the “Nuremberg Chronicle.” This work contains, in a folio volume in the Latin language, the history and geography of the known world, printed in that city in the years 1492 and 1493; exhibited at the same time to the corporeal as well as to the mental eye, by a multitudinous series of graphical representations, taken from wooden plates. Amongst these are cuts of twenty-one devious species of men, or as we should say, monstrosities, from Pliny and other authors.* Some of them appear to involve incompatibilities of the anatomical kind, as above. Others have actually been exemplified—some nearly, some ever strictly; the cyclops eye; the horns, the redundant arms and hands. In these instarces, however, the exemplification has not been known to extend beyond the individual. But species, are they anything but individuals multiplied? In the case of the porcupine man, the deviation would naturally at first be thought confined to the individual; but it was found to extend to the race.
Gulliver, upon his return from Lilliput, consigned, as he tells us, to Greenwich Park some of the neat bulls and cows of that country. Till he read on to the account of this source of permanent real evidence, which converted his doubts into belief, I forget what bishop, mentioned by Swift and others, was induced to regard the whole history as a fable. At the Leverian Museum, full-grown neat cattle, much about that size, were to be seen in glass cases.
Among the Nuremberg-Chronicle men, are to be seen the cranes, with their classical enemies the pigmies, the prototypes of the Lilliputians. Is not the incredibility of the Lilliputians lessened, more or less, by the Leverian buffaloes? The relative incredibility, I think, beyond dispute. The relative incredibility; that is, our propensity to regard the existence of such a race in that light. But the absolute incredibility, the impossibility,—how can that be affected by the analogy in question, or any other?—the absolute incredibility, supposing any determinate idea to be capable of being found, to annex to the expression; a discovery which, to my view, does not, I must confess, present itself as easy to make.
The fact being given,—the incredibility of it—the relative incredibility, is lessened by remoteness in respect of place. The propensity to disbelieve is, certainly. By what cause? The imagination would probably be found to bear a considerable part in the production of the effect; but neither is reason without her share. The more remote the country, the less explored. Had races of Cyclops, of horned men, of many-handed men, of pigmies, existed in England, could they have thus long remained undiscovered? So far as this consideration operates, the relative incredibility of these and other devious varieties of the human species would evidently be much less in the interior of New Holland, than in Old England.
Antecedently to the importation of the kangaroo, and the two species of ornithorynchi, suppose a paragraph in a newspaper, speaking of an animal of any one of those descriptions as found in a wood in England:—the first propensity would have been, to regard the statement as fabulous or incorrect; the next, to take for granted that the animal had been imported from some distant country, and had by accident got loose.
From remoteness in point of place, analogy conducts us naturally to remoteness in point of time. On this ground, imagination and reason act in opposite directions: the imagination, to diminish the incredibility (meaning always the relative)—reason, to increase it. In time as in place, as the scene grows more and more remote, to the mind’s eye it is more and more obscure. Ghosts, devils, vampires, hobgoblins of all sorts, may exist in darkness; in the light, we see clearly there are no such things.
Reason does not in this case diminish the incredibility, as in the former. When the first impulse given by the imagination is resisted, it seems difficult to say why, in the case of an alleged fact devious in specie, the incredibility of it should be lessened by this cause. As far back as history, supported by sources of permanent real evidence (skeletons, statues, sculptured portraits, drawings, pictures, or human works,) goes, can any material difference be found between our predecessors and ourselves?
On the other hand, so far as the incredibility of any devious fact depends upon the causes of untrustworthiness, the increase which it receives from remoteness in point of time is abundantly notorious. In the track of experience and civilization, the further back we go, the greater the proportion of incorrectness as well as mendacity, the greater the ratio of fable to history, till at last it is all pure fable. In distant times, histories melt at last into fables, as, in distant plains, hills do into clouds. It is with the infancy of the species, as with the infancy of the individual: dreams mix themselves with realities.
In effect, remote times are virtually present to us in remote places. The different generations of mankind, at their different stages of civilization, are at once present to our eyes. We may view our ancestors in our antipodes. In Japan, sorcerers are still seen riding in the clouds. In Negroland, witchcraft is even now the most common of all crimes. Half a century is scarce past since Hungary has been cleared of vampires.
Yet, even in time as in place, experience forbids our regarding the present as cast in exactly the same mould with the remote. If New Holland has presented us with its kangaroos and ornithorynchi, Cuvier and others have presented us with their parallels in the extinct inhabitants of an antediluviar world,
In this line of investigation, as in others, errors concerning past times might, in a practical work like the present, pass unnoticed, if the application of them confined itself to past times. The misfortune is, that, when facts, mischievous as well as fabulous, have, under favour of the clouds of the morning, been planted in past times, they are apt to be transplanted into present, there to take root, and yield a poisonous increase. If Blackstone refuses a part of his credence (for it is but a part) to modern witches, it is because they are not old enough. A few years more over their head, and then his faith in them becomes entire. A little while, and the imagination of some successor or pupil of the departed sage may beget upon the ghost of the witch of Endor a succession of modern witches, and then comes the reign of terror again, if not of blood: for the conspicuous sufferings that have been produced by witchcraft at the foot of the fatal tree, or in the water, or in the fire, are as nothing in comparison with the horrors which it has planted in the pillow, and in the chair which, but for them, would have been an easy one. How much better directed has been the zeal of those enlightened divines, who, to conquer peace for flesh and blood (reflecting that the accident of being bound up with history does not give truth to fables,) have made war upon the sorceress, and devoted to annihilation that queen of terrors. Has not Farmer, in the same generous view, converted demoniacs into madmen? and did not Priestley, to the same end, and in a sense peculiar to himself, wrestle with the prince of darkness?
Nature makes her mock of those systems of tacties, which human industry presents as leading-strings to human weakness. In so far as difference in specie is constituted by difference in proportion, which is as much as to say difference in degree, this latter division of devious facts must be confessed to coincide with the former. The existence of pigmies and Lilliputians being incredible, is it so in the character of a fact devious in specie, or devious only in degree? Dwarfs are devious in degree only, and without difficulty. Why? Because, the race being the same, the difference is, in the botanical sense, only a variety. But dwarfs, it is believed, may be found, not above four times the height of Lilliputians, and much less superior in height to pigmies than inferior to ordinary men.
At the worst, imperfect order is better than total chaos. Amidst so thick a darkness, the faintest light is not altogether without its use.
[Further remarks by the Editor.
After an attentive consideration of the characters by which Mr. Bentham endeavours to distinguish his three classes from one another, the reader will probably join with me in reducing these three classes to two;—viz. 1. Facts repugnant to the course of nature so far as known to us; and 2 Facts merely deviating from it: or (to express the same meaning in more precise language) 1. Facts contrary to experience; 2. Facts not conformable to experience.
The discovery of a new species of animal, presents a specimen of a fact not conformable to experience. The discovery (were such a thing possible) of an animal belonging to any of the already known species, but unsusceptible of death or decay, would be a fact contrary to experience.
This distinction was pointed out by Hume;* but, having pointed it out, he knew not how to apply it: and the misapplication which it seemed to me that he had made of it, led me at first sight to imagine that there was no foundation for the distinction itself. Having, however, by further reflection, satisfied myself of its reality, I will attempt, if possible, to make my conception of it intelligible to the reader.
All that our senses tell us of the universe, consists of certain phenomena, with their sequences. These sequences, that is to say, the different orders in which different phenomena succeed one another, have been discovered to be invariable. If they were not so—if, for example, that food, the reception of which into the stomach was yesterday followed by health, cheerfulness, and strength, were, if taken to-day, succeeded by weakness, disease, and death—the human race, it is evident, would have long ago become extinct. Those sequences, then, which are observed to recur constantly, compose what is termed the order of nature: and any one such sequence is, by rather an inappropriate metapher, styled a law of nature.
When a new discovery is made in the natural world, it may be either by the disruption of an old sequence, or by the discovery of a new one. It may be discovered, that the phenomenon A, which was imagined to be in all cases followed by the phenomenon B, is, in certain cases, not followed by it; or it may be discovered that the phenomenon C is followed by a phenomenon D, which till now, was not known to fellow it.
In the former case, the newly-discovered fact is contrary to experience; in the latter case, it is merely not conformable to it. In the first case, it is repugnant to what had been imagined to be the order of nature; in the second case, it merely deviates from it.
The first time that the sensitive plant was discovered, its characteristic property was a fact not conformable to experience. A new sequence was discovered; but no sequence was broken asunder: the plant had not been known to possess this property, but neither had it been known not to possess it, not having been known at all.
But if a stone projected into the air were, without any perceptible cause, to remain suspended, instead of falling to the ground,—here would be not merely a new sequence, but the disruption of an old one: a phenomenon (projection of a stone into the air) which, from past experience, had been supposed to be universally followed by another phenomenon (the fall of the stone,) is found, in the case in question, not to be so followed. Here, then, is a fact contrary to experience.
The error, then (as it appears to me,) of Hume, did not consist in making the distinction between facts contrary, and facts not conformable, to experience; it consisted in imagining, that, although events not conformable to experience may properly be believed, events contrary to experience cannot. That an event is not fit to be credited which supposes the non-universality of a sequence previously considered to be universal, is so far from being true, that the most important of all discoveries in physics have been those whereby what were before imagined to be universal laws of nature, have been proved to be subject to exception. Take Mr. Bentham’s own list (pp. 84, 85) of the exceptions to the law of gravitation: suppose all these unknown, the law might have been supposed universal, and the exceptions, when discovered, would have been so many violations of it: but do not these exceptions, with the exceptions again to them, and so on, compose by far the most valuable part of physical science?]
The improbability of a fact, relatively to a particular individual, depends upon the degree of his acquaintance with the course of nature.
The improbability of any alleged fact consists in its deviation from the established, and (as supposed) unvaried and invariable, course of nature.
Of what nature?—Of irrational nature, or rational,—of the nature of things, or of men,—according to the nature of the alleged fact deposed to: according as it is a mere physical event, or a human act, the result of the operation of a human mind. According as the fact belongs to the one or the other class, the description of the improbability will admit of correspondent differences.
Does the fact exhibit any such deviation? If yes, in what degree? considerable enough, or not, to preponderate over the force of such testimony as the case presents? What, in respect of the supposed fact in question, is the unvaried and invariable course of nature? Immediately or ultimately, it is from the opinion of the judge, determined by the knowledge of the judge, that the answer to these questions, and the decision grounded on it, must come.
It must always be borne in mind that probability and improbability are not, in strictness, qualities of nature; they are qualities attributed to supposed natural facts in the way of fiction, for the convenience of discourse—attributed to the facts themselves, in consideration of the persuasion entertained concerning them in the mind of him by whom they are spoken of in this point of view. The alleged fact,—is it, in his view of the matter, completely unconformable to the ordinary course of nature? he sets it down as improbable in the highest degree: or, in other words, as impossible. Is it in a less degree unconformable? he sets it down as simply improbable, and not altogether impossible: and so downwards, till the improbability presents itself as productive of no other degree of negative persuasion than what is capable of being subdued and made to give way to positive affirmation, by the force of such affirmative evidence as the case affords.
The improbability being thus recognised to be purely relative—relative on each occasion to the idiosyncrasy of the individual by whom the fact in question is set down as improbable,—it is easy to see, that in this point of view, the probability or improbability of the fact will depend upon the degree of relative knowledge possessed by the individual judge; and thence upon the degree attainable, and generally attained, in the age, and country, and rank, in respect of mental cultivation, in which he is placed. A fact which, in Paphlagonia or Palestine, might, in the Augustan age, not have been too improbable to be established by testimony, in the estimation of the most knowing minds of those respective countries, might have presented itself as impossible to the same class of minds at Rome or Athens at that same time. A fact which in that same age might not have been incapable of establishing itself in the character of a probable one at Rome or Athens, even in that highest class of minds, might at this time be rejected as improbable by minds of the same class in Paris or London. A fact which would be established by a given force of testimony without a dissentient voice in the minds of the highest class at Tombuctoo, and without many dissentient voices in minds of the same class in Constantinople, might find nothing but incredulity in minds of equal relative superiority in London or Paris. Even in our own times, and within the hearing of Bow bells, Stockwell or Cock-lane might, on the strength of hearsay evidence, afford a temporary credence to a fact to which no force of immediate testimony would be able to afford so much as a momentary credence in St. Stephen’s chapel.
By the relative credibility or incredibility of a fact, I understand the chance it has of being believed or disbelieved by a given person.
The relative incredibility, as regards a particular person, of an anti-physical fact—a fact amounting to a violation of a law of nature—will be in proportion to his acquaintance with the laws of nature. Suppose a person altogether unacquainted with the laws of nature, yet not altogether unaccustomed to hold converse with mankind: he would, upon the credit of a bare assertion, uttered by any person of his acquaintance, give credit to one fact as readily as to another; to the most flagrantly anti-physical fact, as well as to the most common fact; to a fact the most devious and extraordinary in degree or species, as well as to the most ordinary fact; to the existence of a ghost or a devil, as well as to that of a man; to the existence of a man sixty feet, or no more than six inches, high, as well as to that of a man of six feet; to the existence of a nation of cyclops, with but one eye each, and that in the middle of the forehead, as well as to the existence of a nation with two eyes in their ordinary place.
In this respect, all nations as well as all men are children for a time. Among savages, not to speak of barbarians, the mental state cannot be regarded but as a state to which this supposition is in a great degree applicable.
What is there that would not be believed in a nation in which it was generally understood—so generally as to be a position acted upon by law, that guilt or innocence, mendacity or veracity, was to be determined by a man’s walking blindfold hurt or unhurt in a maze of red-hot ploughshares?
Of a given apparently anti-physical fact, the relative incredibility will be apt to increase, not only with a man’s acquaintance with the laws of nature, but with his acquaintance with the history—the correspondent part of the history, of the human mind; with the observations he has had occasion to make of the extreme frequency of incorrectness and mendacity among mankind, or rather of the extreme rarity of the opposite phenomena; of the extreme frequency of the instances in which either the one or the other has been reduced to certainty, sometimes by irreconcilable contradictions, as between divers reports of the same transaction—sometimes by self-contradiction on the part of each.
In the case of an apparently anti-physical fact reported by a writer or a number of writers in a distant period.—to render it more credible that he should either have been a deceiver or deceived, than that the fact was true, it is not necessary that it should appear that he was acted upon by this or that particular cause of delusion, or that he had this or that point to gain, this or that specific advantage to reap, from the lie. All men are, occasionally, exposed to seduction in this way, to the temptation of swerving from the truth, by all sorts of motives. True it is, that in this case there are two suppositions to make, for one that there is in the other. But, take each of these suppositions,—what can be more probable?
Go back to distant ages, we shall find men of the very first reputation for sagacity, for insight into the human heart, very imperfectly apprized (to appearance at least) of the causes of untrustworthiness to which extra-judicial testimony is exposed. Speaking of the two miraculous cures ascribed to the Emperor Vespasian, “Utrumque” (says Tacitus) “qui interfuere, nunc quoque memorant, postquam nullum mendacio pretium.” “By persons who were privy to the two transactions, both are still related, now that” (understand, by the extinction of that emperor’s family) “mendacity has no longer any reward to hope for.” No reward to hope for! As if punishment was not a still more irresistible principle of seduction than reward! as if forfeiture of reputation, of reputation for veracity, were no punishment!
By Tacitus, both these miracles were believed. The remark could have had no other object than to communicate that persuasion to his readers. Unless his intention was to deceive, he was himself deceived.
In England, miracles of the same kind, but prodigiously greater in number, and beyond comparison better attested, were believed—within these hundred years very generally believed; and now, perhaps (anno 1826) not by a single human being—not even by any of the multitudes that still believe in witches and apparitions. It was among the attributes of the Stuart dynasty, to cure their subjects of the species of scrofula called the king’s evil. A piece of coined gold being touched by the monarch for the purpose, the patient wore it thereafter by a string upon his neck; for which purpose a hole was pierced in it. By family inheritance, I have three of these pieces still by me. It was not by the vision of a god—the god Serapis—that so many beneficent monarchs were determined to exercise, for the benefit of their subjects, this healing power; it was by the experience of ages. Under James I. the practice began, or at least existed, with the 17th century; under Anne, it continued for the first fourteen years of the 18th:—omitting the reprobate Charles and the usurping William, all of them monarchs of exemplary faith and piety. Would sovereigns such as these have lent a hand to an imposture?*
Thus it is, that, in many instances, improbability is relative: the same fact is at once probable and improbable—probable to some persons improbable to others; and this without any necessary imputation, on either side, on the judgment of those by whom such opposite decisions are pronounced.
Ignorance, though perhaps more exposed to erroneous judgments on the side of belief, is by no means unexposed to erroneous judgments on the side of disbelief;† inasmuch as the analogies by which extraordinary incidents are brought within the sphere of probability, are, in proportion to the degree of their ignorance, apt to be without the compass of their knowledge.
The less extensive a man’s acquaintance is with the ordinary course of nature, the greater is the number of those facts, which by him are not seen and understood to be within the ordinary course of nature—facts which, in his view of the matter, belong to the predicament of extraordinary things. The greater, therefore, is the number of those things which, being to him extraordinary things, are by others reported, and by him (as occasion presents them to his observation) found and proved, to be true.
Supposed facts, which, besides being to him extraordinary, are really out of the course of nature, and not only so, but actually untrue, are by him neither seen nor suspected to be untrue. Why not? Because, by their being extraordinary to him, little cause is presented for suspecting them to be untrue: for many facts which to him are extraordinary, are by the general consent of those with whom he is acquainted held to be, and upon trial found to be, true. Nor, by their being really out of the ordinary course of nature, are they presented to him as being in a proportionable degree, if in any degree, improbable: for with the extraordinary course of nature, as distinct from the ordinary, he has little or no acquaintance.
Suppose a Turk, of the ordinary class of Turks in point of education, to have been told of the elevation of a number of persons in the air, and of the aërial voyage performed by them; and this by a bare statement of the fact so far as above described, and without any indication given of the cause by which the elevation was produced. Probably enough, neither disbelief, nor so much as any considerable surprise, would in his mind have been the result. To his disposition to give credence to this, or any other fact of the extraordinary class, no great addition could probably remain to be made by occular demonstration. Whatever fact of this description could be related to him, would be rendered sufficiently credible by a word, whatever it be, of which in English the words magic or sorcery serve for representatives. By the Turks, Christians are considered either as being in general magicians, workers of wonders, or, at least, as abounding in magicians: and by magic, one thing may be done as well as another. The contents of the machine by which this wonder was achieved, were in fact composed of rarefied air:—had this account of it been given to him, would he have credited it? Not unlikely; and so would he, as likely, had they been represented to him as composed of lead. To a people to whom the face of nature is not visible through any other medium than that of the Koran, one fact is not more unconformable to the course of nature than another.
When an air-balloon, on the hydrogen gas principle, performed for the first time, at St. Petersburg, an aërial voyage,—certain Japanese, who having been shipwrecked somewhere in Kamschatka, had from thence been conveyed to Petersburg, were of the number of the spectators. All the rest were wrapped up in amazement: the Japanese alone remained unaffected. A Russian noticing their unconcern, and asking for the cause of it,—“Oh!” said a Japanese, “this is nothing but magic; and in Japan we have practitioners in magic in abundance.”
In the long-established empire of Japan, it is probable, as in the long-established and neighbouring empire of China, they have jugglers, whose art consists in the production of whatsoever phenomena seem most unconformable to the known course of nature. In England, as well as in other superiorly-informed nations, such appearances are exhibited by jugglers, as it requires a better acquaintance with the course of nature than falls to the lot of the bulk of the people, to distinguish from impossibilities; and in China, the art of juggling, having been longer in use than in any European country, appears, by the instances given by travellers, to have been carried, in some particulars, to a still higher degree of perfection than anywhere in Europe.
The art of travelling in the air being referred to jugglery, and considered as no more than a particular branch of that commonly-practised art, all cause of wonder was at an end.
In the character of a faithful picture of real life, the Arabian Nights’ Entertainments, to an Arabian understanding, are upon a par with other histories: and if in some points they differ from histories strictly and properly so called, it is only in the same respect as Robinson Crusoe differs from actual biography: though not actually true, they contain nothing but what might have been true; and if, in any instance, they are not to be believed to be true, it is only because, upon a close inspection, it may be found that they are not given for such.
The author being, in the autumn of 1785, on board a Turkish vessel, on a voyage from Smyrna to Constantinople, a storm arose in the sea of Marmora, which made us glad to take refuge in a port on the Asiatic side, called Kiemed, where the first object we saw, as soon as we could see anything, was the wreck of a vessel just driven on shore within a stone’s throw of us.
There being several Franks of us on board, the master of the vessel, through the medium of an interpreter, examined us all for the purpose of knowing whether any such article as a fragment of an Egyptiam mummy existed in the possession of any of us; and if so, whether we could favour him with a sight of it. The answer having been universally in the negative,—when the storm was over, it was observed to us by the interpreter, that our deficiency in this curious article was, perhaps, a fortunate circumstance for us; mummy being among the implements known to be employed by Christians in the practice of divers magical arts, and, amongst others, of the art of raising storms: whereupon, had any such article been found in our possession, it would have been matter of consideration, as a means of abating the fury of the storm, whether to be satisfied with throwing overboard the magical implement, or to throw over the magicians along with it.
The theoretical principle being established on the ground of notoriety, the practical inferences seemed to follow from it consistently enough. If, by a piece of a dead body, preserved in a particular manner, and introduced on board a ship, a storm could be raised,—what more natural than that, by throwing it out of the ship the storm should be appeased? The cause taken away, the effect will follow. Moreover, if, upon the removal of the supposed cause, the effect should not follow—if, after this magical implement had been thrown overboard, the storm should continue unappeased,—the continuance of it would be a proof that the cause of the storm, if removed in part, was not removed completely: it would be a sign that, along with this known implement, the magician was in possession of some other implement or implements, not equally known, but equally well adapted for the purpose of raising storms: and, under the difficulty of ascertaining what were the other implements by the help of which the magician might be enabled to fulfil his wicked purpose, the surest course was to rid the ship of the magician himself, which done, his tools, were they ever so numerous, would do no mischief.
Be this as it may, the sagacious Turk might have placed his argument on ground absolutely impregnable, by calling in to his aid the principle of the Scotch philosopher. I have a propensity, he might have said, to believe whatever I hear, probable or improbable: and this propensity is innate; for who can tell me when it first began to show itself? But being innate, it is not derived from experience; and being older than experience, it is stronger than experience; nor, therefore can any argument drawn from probability or improbability stand against it: for an argument drawn from probability or improbability rests on no other basis than that of experience; and when experience, or anything that rests upon it, is encountered by the opposing pressure of the pre-established propensity, which it is that must yield, is manifest enough.*
The better acquainted we are with the course, the ordinary course, of nature, the better qualified we are, of course, for judging whether a given fact be conformable or unconformable to it.
As between credulity and incredulity, belief of false facts and disbelief of true ones, the former will naturally present itself as being, in the greatest plenty, the fruit of ignorance. It certainly is so, in so far as ignorance is accompanied with the consiousness of its own existence. Such consciousness is a natural, and perhaps predominantly frequent, accompaniment of ignorance; but it is by no means an inseparable one. Much will depend upon the opportunities a man has of being witness of the proofs of a degree of knowledge superior to his own. Much will also depend upon the particular temper and cast of mind of individuals!
Carrying with them the productions of European arts, the voyagers that from time to time have, within the two or three last centuries, visited the newly-discovered parts of this our globe, have in general found the inhabitants well enough disposed to give credit to their visiters for reported wonders, on the strength of the wonders presented to their eyes: but this facility of credence has not been altogether without its exceptions. The case of the King of Siam is old enough to have been noted and commented upon by Locke.† When, in reporting the state of things in their own country, the Dutchmen who visited his dominions came to speak of the frozen scenes presented by their winters—water hardened to such a degree as to bear men and waggons like dry land,—a laugh of scorn was the reply, and they were set down for impostors.
At that time of day, the advances made in natural science were as yet but inconsiderable; and the strangers by whom the wonder was reported, were, perhaps, not much more than upon a par with his Siamese majesty, in respect of their advances in the career of science; or, at any rate, were not provided with any ready means of displaying any proofs of their superiority in his view. The fact was not conformable to the course of nature, in any such state of things as his opportunities of observation had presented to his view. He had, therefore, the same reason for disbelieving that fact, as we have for disbelieving facts which, by thousands and thousands that could be mentioned, a European, instructed or not instructed in the rudiments of physical science, would, at this time of day, be disposed to reject as incredible at the first word.
In London itself, that great metropolis which disputes with Paris the title of metropolis of the scientific world, his Siamese majesty found, within the compass of my own experience, a not unworthy representative in the person of an English physician. At that time, about twenty years or thereabouts had elapsed since the publication of the first experiment by which mercury, by the help of the Russian ice, had been exhibited in a solid state. In company with the learned doctor, I happened, on I forget what occasion, to make allusion to this experiment. With an air of authority, that age is not unapt to assume in its intercourse with youth, be pronounced the history to be a lie, and such a one as a man ought to take shame to himself for presuming to bring to view in any other character.
Solidity, liquidity, and gaseosity, appear now for some time to have been considered, in natural philosophy, as the three states, of which, by combination with an appropriate portion of caloric, bodies in general, such as we are acquainted with, may be regarded as susceptible: insomuch that,—although instances, and those pretty numerous, are not wanting, in which this or that modification of matter has not as yet been seen assuming, or made to assume, this or that one of the three states,—yet its being presented, though for the first time, in such hitherto unknown state, would no more be regarded as repugnant to any law of nature, or as an instance of an incredible deviation from the ordinary course of nature, than the existence of water in the state of ice or steam.
One of the most interesting remains of Grecian antiquity, is the narrative which Lucian (who, though not the most ingenious, may be set down as by far the wisest among the Grecian philosophers)—Lucian, an eyewitness, has left us, of the pranks played by the impostor Alexander: a sort of Sidrophel in a higher sphere, who, upon the strength of a worm enclosed in an egg-shell, a tame real snake, and the head of an artificial one, set up for a prophet and prime minister of the god Æsculapius. Had any man paid a visit to Lucian, and said to him, “Yesterday I saw Alexander, with his serpent-god, sailing in the air in a boat, and mounting up to heaven, taking with him a globe of not less than thirty feet diameter—saw him and watched him till his approach to the seat of Jupiter had rendered him invisible—what would have been the reception given by the philosopher to his informant? Probably, much the same that the King of Siam gave to the story of the solid water, and the English physician to the lie about the solid quicksilver. But suppose, the next day, Lucian himself had been witness to the ascent of Æsculapius, with his favourite, to his native heaven?—he would either have been a convert to the godhead of the serpent, and the divine mission of the prophet Alexander, or have borrowed some such term as magic as a cover to his obstinacy; to a disbelief for which he would not have been able to have given any tolerable reasons.
A fact which, when viewed through the medium of a man’s actual stock of physical science (for even the New Hollanders are not without some,) presents itself as rendered incredible by its non-conformity to the known course of nature, may (if his mind be open to reasoning, and passion do not shut the door) be rendered credible to him, by showing its conformity to this or that fact, rendered for the purpose present to his observation, or which, though not altogether foreign to his memory, had not happened to present itself in that point of view. Neither the frigorific saline mixtures we are acquainted with—nor ether, which, by the promptness of its evaporation, stands in lieu of all—could at that time have been exhibited to the King of Siam by his Batavian visitants. But a handful of nitre, which, being disolved in boiling water, had been converted in appearance into its aqueous solvent, might, on its cooling, have been made to exhibit to the eyes of the incredulous monarch the transformation of the liquid into that semi-transparent stone which, in the regions of the north, affords natural bridges capable of conveying the heaviest elephants over extensive rivers. Or—unless in the climate of Siam there be something, which there does not seem likely to be, to prevent the success of an experiment which in Bengal is so commodiously subservient to wholesome luxury—a set of porous and shallow earthen pans, with, or perhaps without, an artificial current of air, might, without any extraneous additament, have sufficed for converting, in any moderate quantity that could be required, the fable into fact.
Not quite so easy might have been the task of him who should have had to reconcile the facetious philosopher of Greece to the evidence of his senses. The favourite fluid (he might have said) of Minerva, rides triumphant and unsullied upon the element of Neptune. When, from the summit of Ida, a pine is rolled down and precipitated into the waves, it not only rides upon the water, but communicates its buoyancy to the hands that severed it from the parent earth. What the oil or the wood is to the water, an air which you are not yet acquainted with, but which nature prepares already in great quantities, is to the air in which we move and breathe. Inclose this light air in a bag of sufficient size, it will carry up, as you see, not the bag only, but boats, and men, and gods, along with it; exactly as the pine, when by the force of the fall it has been driven to the bottom of the lake, rises by its own levity, and would still rise, though men and other heavy bodies were attached to it. It is not that the new air is devoid of weight, any more than the old air, by the impulse of which vessels are drawn by design along the surface, and by accident to the bottom of the waters; but—the lighter air not being so obedient to the unknown power by which the effect we call weight is produced—the lighter air, which, were it alone, would cling to the earth, is drawn off from it by its more powerful antagonist, carrying with it its receptacle, and the burdens you see attached to it.
Would this analogy have satisfied the scoffing philosopher, or would nothing less have satisfied him than the setting up a manufacture of hydrogen gas before his eyes? This would have depended upon his particular frame of mind, upon the humour he happened to be in, and more or less, perhaps, upon the state of his quarrel with the imposter whose pranks he has detailed to us in so agreeable a narrative.
Opinions, recognised at present among the enlightened classes in enlightened nations as being unsupported by fact, and in opposition to those laws of nature which have been built on fact, have been erected into what may be styled so many false and spurious laws of nature. From these spurious laws, evidence, which on account of the extraordinariness of it would be deemed false, by reason of the circumstantial scientific evidence opposed to it by the science of the age and country, may derive, and in many instances has derived, but too effectual a support. At no time have even the most enlightened classes been altogether exempt from the delusion spread by such spurious laws of nature. The station of a judge, how high soever it may rank in the scale of mental illumination, has at no time been everywhere sufficient to exempt a man from false persuasions, grounded on the false laws of nature above spoken of.
Among these so unhappily prolific opinions, the most conspicuous and persuasive (not to say the only ones) are those which have had the religious sanction for their support. The persuasion generated has been produced, not by any facts by which the opinion has been seen to be supported, but by a persuasion of a very different sort; viz. that he in whose breast the principal persuasion in question should fail of being produced, would, by reason of such failure, be consigned to inconceivable and endless tortures.
If a clear line could be drawn, and were actually drawn, between time and time, insomuch that the dominion of these spurious laws of nature were understood to be confined to time long since past, the real law of nature reigning with undisputed dominion in time present and to come,—the error might not, in this point of view, be attended with any pernicious consequences in practice. But by no man has any satisfactory or so much as plausible reason been ever given, why any such line should be thought capable of being drawn anywhere; much less has it been shown that, for any precise and satisfactory reason, it should be understood to have been drawn at this or that precise point of time.
Things being thus circumstanced,—opinions enunciative of false laws of nature, opinions that have received their birth at some widely-distant point of time, have, in times little anterior to the present, been productive of judicial decisions, by which much mischief has been done, and a degree of alarm propagated through the community, such as could not have been spread by the most atrocious crimes. It has been the effect of such opinions, not only to give support to the false evidence which would otherwise find itself resisted, and with effect, by the circumstantial scientific evidence of the age and country, but even to give birth in the first instance to such false evidence.
In the seventeenth century, Urbain Grandier, for having employed devils to take possession of certain nuns at Loudun, and enable him to take possession of them for carnal purposes, was roasted alive by a slow fire, after having undergone other tortures. Of this catastrophe, the immediate authors were certain corrupted magistrates and corrupted witnesses of that time: but the original authors were the devils who, in a distant age and country, were cast into the herd of swine; together with so many others who, in that age and nation, found, in such abundance, such easy entrance into the human breast.
In England, not many years afterwards, Sir Mathew Hale, a judge of even proverbial probity—a judge superior to all corruption, but not superior to delusion, if the belief in witchcraft be delusion,—hanged an individual for witchcraft: by the assistance of a jury, whose delusion had probably not waited for his, but, at any rate, was confirmed by it. Of this catastrophe, the immediate authors were the judge and jury, and the either corrupted or deluded witnesses of that place and time; but the original author was the witch of Endor, and those predecessors of hers in the same profession, for whose punishment a law had been inserted into the Mosaic code.
The general evidence applied by scientific information to the direct evidence of particular extraordinary facts, is not always necessarily and without exception (though it is most apt to be) on the negative side, in opposition to such direct evidence. Direct evidence, the truth of which is rendered suspicious by this circumstance—viz. that the fact reported by it would, if true, be a violation of some acknowledged law of nature—may be exempted from suspicion, by showing that it is in conformity to some other less extensive law of nature, which operates, as it were, as an exception to that which is more extensive. By magnetism, by electricity, by chemical attraction, by galvanism, by expansion and contraction, produced by the action of caloric on bodies, in their several states of solidity, liquidity, and gaseosity, motions are produced in a direction opposite to that in which the body in question is drawn by the more extensive law of gravitation. Of the attraction of gravity, some sort of conception must have been entertained in every, the rudest age; but in the ancient world, even in its most enlightened period, the conception entertained of this universal property of all matter was but imperfect, and was not expressed by any sufficiently comprehensive name. Of the other laws, which, as just mentioned, stand as it were as so many exceptions to that more general law, scarce any conception was in those days entertained: of the laws of magnetic, in particular, and electrical and galvanic motion, none whatever. In the museum at Oxford may be seen (or at least might once be seen) a natural magnet, by which a mass of iron, weighing 1,200 lbs., is or was kept suspended. At the lectures there delivered on natural philosophy, might at the same time be seen an exhibition which, I suppose, is commonly enough repeated in other such lectures—a plate of gold kept suspended for some moments in a state of absolute rest, by the antagonising forces of gravitation and electricity. Of late, in presence of numerous companies, different parts of a dead body have received, from the so recently discovered power of galvanism, motions opposing and overpowering the action of gravity.
In our own times and country, scarce a journeyman or a milliner’s apprentice in a country town, to whom these particular and recently-discovered laws of nature are altogether unknown. Even to these inferior ranks, a fact of any of the classes above exemplified would therefore, at present, be as far from appearing improbable, as the fact of a stone’s falling to the ground after being dropt or projected from the hand. By a person now sitting in the station of a judge, even though he were selected from no higher rank in the scale of illumination, these facts would, any of them, be received upon any, the slightest, evidence. In the age of Lucian, had Lucian sat as judge, and any of these facts been exhibited to him in evidence, without any previous explanation,—Lucian, notwithstanding all his knowledge and sagacity, or rather by reason of that very knowledge and sagacity, could never have failed to reject it as incredible.
Facts, then, which were true, have been rejected, and with reason rejected, as improbable. When a fact presents itself as improbable, does this experience afford any reason for crediting it as if it were true? Nothing like it. Disbelieving improbable things, we shall deceive ourselves once; believing them, we shall deceive ourselves nine hundred and ninety-nine times. Deceived we shall be, not unfrequently, do what we can: all that is left for us to aim at, is, so to order our judgment that the number of instances in which we are deceived shall be as small as possible.
Of eleven witnesses exhibited before a court of justice, and possessing, as far as appears, equal title to credit, ten may perjure themselves, and the remaining one may speak truth. In this case, if the judge gives credit to the ten witnesses, misdecision will be the consequence. But does it therefore follow that, cæteris paribus, ten witnesses are not to be believed in preference to one?
In practice, no difficulty is found in believing one fact, and disbelieving, at the same time, another, though both of them standing on the ground of the same evidence. Propensity leads to such distinctions; judgment reports the reasonableness of them.
In the Nuremberg Chronicle, two facts are reported in the same breath: one (that of the armies fighting in the atmosphere,) to which, at present, no well-informed mind will afford—the other (that of the stones falling from the same region,) to which none will refuse—its belief. Why this difference? The reason is obvious and convincing. The fact disbelieved is a fact unconformable to the known course of nature: and to such a degree unconformable, that, the better a man is acquainted with the ordinary course of nature, and the more close the attention which in this view he pays to it, the more strongly he will be persuaded that the reporter or reporters (be they who they may) were either deceived or deceivers, rather than that such a fact should have been true. The fact believed, is a fact conformable to the course of nature: in former times not known to be so, but of late years ascertained to be so by a multitude of examples, many of which have undergone the most attentive and most scientific scrutiny.
Improbability is a particular case of counter-evidence.
The case of improbability or impossibility, on the part of the fact, the existence of which is asserted by the testimony delivered in the first instance, will, when closely looked into, be seen to coincide with the case of counter-evidence.
Improbability is constituted by a mass of evidence of a mixed, and in a considerable degree subtle and recondite, nature—an article of circumstantial evidence deduced in the way of inference, out of an immense mass of direct evidence.
Improbability or impossibility consists (it has been seen) in the inference deduced from a supposed disconformity, more or less wide, on the part of the affirmed fact in question, as compared with the ordinary and known course of nature.
The direct evidence, from which this inference of the non-existence of the affirmed fact is deduced, is composed of the several supposed reports or relations (added to the several supposed perceptions of the deposing witness himself) whereby the existence of the several supposed analogous facts of which the course of nature in this behalf is composed, has been supposed to be affirmed.
Operating thus in the way of counter-evidence with relation to the fact affirmed, this immense and in a manner infinite mass of direct evidence may, for distinction’s sake, be termed general counter-evidence: the other evidence antecedently designated by the appellation of counter-evidence, being at the same time named special counter-evidence.*
Certain facts are considered as disaffirmed, certain negative facts in infinite multitude are considered as affirmed, by the perceptions and reports (extra-judicial reports indeed) of mankind in general, without any known exception: and from all these facts put together, in the character of evidentiary facts, the non-existence of the individual fact in question in the character of principal fact is inferred.
Thus, supposing, down to the time in question (say the year 1763,) the greatest length of way known, within the bounds of the country called England, to have been travelled by any one man in the compass of twenty-four hours, to have been 150 miles:—the existence of a man in a spot 200 miles distant from the spot in which the act in question is known to have been committed, and that within twenty-four hours of the time at which it is known to have been committed, will be sufficient to render the fact of his having been the person who committed it, to a certain degree improbable.*
Of all the instances of dispatch on journeys that ever came within my observation (here we have perception,) and of all that I ever heard of (here we have an indefinite mass of evidence, extra-judicially indeed, not judicially delivered evidence,) none ever exceeded 150 miles within the twenty-four hours. Here, if the witnesses are to be believed, we have a rate of dispatch equal to 200 miles in twenty-four hours. The supposed fact thus affirmed, is, therefore, out of the ordinary and known course of nature: and so widely distant from it, as to be improbable: and so great is the improbability, that, notwithstanding the affirmative testimony of the witnesses for the prosecution, the fact of their being either mendacious or under a mistake seems the less improbable fact of the two. My decision, therefore, is, that the criminal act charged upon this man was not committed by him.—Such, in the case in question, if developed at length, would be the language of the judge (under English law the jury) by whom, in the case in question, the fact affirmed by the first-delivered evidence was, on the ground of its improbability, disbelieved.
To illustrate the nature and effect of improbability in the character of an article of circumstantial evidence, opposed to, and adduced in disaffirmance of, the existence of the fact, which, howsoever affirmed by testimony, is thus charged with being improbable,—I will bring to view three examples: the case of water brought by cold into the state of ice; the case of air-balloons; and the case of stones falling upon the earth from immeasurable heights in the atmosphere.
A circumstance by which these examples are rendered all of them the more instructive, is, that, in every one of these instances, the fact that was or might have been rationally and properly objected to as improbable, was nevertheless, and is now, universally acknowledged to be true.
The case of the water and the ice, as reported by Locke, has already been brought to view† . In Siam, water is never in that state. The position of the country is in the torrid zone, and there is no elevation in it anywhere, of sufficient height to produce the degree of cold necessary to surmount in that respect the effect of exposure to the sun’s heat. Admitted to the presence of the monarch of that country, an ambassador from Holland, in describing the state of things in his own, incidentally found occasion to speak of ice—of water reduced to that state, in masses of such thickness as to bear men and carriages. At this point of the narrative he was stopped. “What you have been saying till now,” said his Majesty, “may be true: but by this I am satisfied you are false. Water turned into stone! was ever any such thing, or anything like it, seen or heard of?”
The monarch was perfectly in the right. Water turned into stone, he had never either seen or heard of. Liars be had seen, as many as he had seen men. To him the supposed fact was altogether unconformable to the course of nature, much more so than any instance of mendacity: to us it is altogether conformable. In his eyes, it opposed an insuperable bar to the probative force of the testimony: in ours it would have opposed none.
Was he, then, in his situation, condemned to give everlasting discredit to facts thus indubitably true? By no means. Supposing his understanding powerful enough to comprehend the force of analogy, the conversion of water from a liquid to a solid state by the abstraction of heat might have been shown to be conformable to facts in abundance, that either already had been, or easily might have been, brought within the reach of his own experience—of his own perceptions.
When an asserted fact is disbelieved as improbable,—the ground of its rejection, the efficient cause of the persuasion by which the existence of it is disaffirmed, is the notion of its being unconformable to the ordinary course of nature. Show that there is no such disconformity, the improbability is removed altogether. Show that the disconformity is not so wide as it had appeared to be, the improbability is diminished: the diminution is more or less considerable, according as the analogous facts brought to view to show the conformity are more or less numerous, and, in the instance of each, the analogy more or less close.
In the eyes of the King of Siam, the improbability of the conversion of water from a liquid into a solid might have been diminished, by indicating to him the case of metallic substances. In the furnace of the founder, the gold with which your palace is decorated is in a state of liquidity, like that of the water in which your barges float: when, being removed from the fire, it becomes comparatively cold, it resumes then a state of solidity, like that which, during one part of the year, water resumes so regularly in our canals.
By this one example, the improbability might, in the monarch’s eyes, at any rate, have been lessened. As to the degree in which it would have been lessened, that would have depended on the cast of his mind, and his opportunities of information.*
The improbability might have been still further diminished, had the medical chest of the ambassador’s physician happened to be furnished with a corresponding pair of those saline substances which, being separately dissolved in water, present each of them the appearance of water, but immediately on being mixed together constitute a solid and to all appearance a stony mass; the redundant water of the one being absorbed in crystallization by the other:—supposing always, that, while the chest of the medical man supplied the substances themselves, his mind furnished him, at that early period, with the knowledge of the properties, which, on this occasion, required to be displayed.
In the case of the air-balloons, no particular instance, in which, for any length of time, the fact of their ascension found any person to disbelieve it, ever happened to fall within my knowledge. The unbelievers, if any, were from the first more likely to be found among the uninitiated, than among the initiated in the physical branch of science. The rarefaction and levity which is the long-known result of increase of temperature,—this, added to the known possibility of abstracting from an inclosed space the whole weight of the air that would have been contained in it, were sufficient to reduce very much, if not to remove altogether, the improbability of the fact in the first instance. The discovery of a gas which, under an elasticity and power of resistance equal to that of common air, possessed no more than from a tenth to a fifteenth part of its weight, brought it not long after within that class of facts, which oppose not in any degree the objection of improbability to the testimony of him by whom they are related as having fallen within the compass of his perceptions.
The case of the stones that, of late years, have, in so many well-attested instances, been stated to have fallen in different parts of the world from the sky upon the earth, at too great a distance from the nearest volcano to have had any such earthly seat of explosions for their source, brings to my own recollection the feelings which, at different times, reports to that effect presented to my mind. The Nuremberg Chronicle was the first source of information by which a fact, or supposed fact, of this kind, was presented to my notice. Among the wonders exhibited by graphical representation in this work, is a shower of stones, which, on a day therein recorded, is mentioned as having fallen upon the earth’s surface.† On a glance bestowed, which was all that seemed worth bestowing, on the point in question, with the few words that served for the explanation of it, the stones were set down in my own mind as having being the missiles employed by the combatants in one of those pairs of armies whose combats in the air used at that time of day to be so frequent.‡
A general recollection remains with me of having read, many years ago, in one of the London newspapers, a paragraph, stating a stone, or a number of stones, to have fallen from the clouds in England, at some place remote from the metropolis: I think it was in Yorkshire. This was the first instance that had met my observation, of an occurrence of this kind, related as having taken place at a point of time near to that of its publication. A statement published in a London newspaper, with mention of time and place, exposed thereby to immediate scrutiny and contradiction, presented a very different claim to attention from any that could be presented by the production of a barbarous age, in which facts possibly true, and facts unquestionably false, were intermixed in every page.
Is it true, this story—or is it not? is the question I remember putting to myself. That it is altogether false (was the answer,) is more than I could take upon myself to pronounce with full assurance. My acquaintance with the several branches of science concerned, is not such as to afford sufficient warrant for any such peremptory conclusion. But, within the time of scientific scrutiny, this is the first report of the kind that ever met my observation: whereas, in the periodical publications of the day, statements more or less erroneous occur every day, and erroneous reports, relative to facts lying within the division of physical science, are not unfrequent. If, therefore, I were obliged to lay a wager, with liberty to choose my side, it would be on the negative side; and on that side I should be content to lay considerable odds.
By the comparative degree of intelligence prevailing in modern times, the range of the species of evidence here in question has been considerably reduced: the question now is,—not whether, upon the credit of this or that article of human testimony, the existence of a fact confessedly out of the ordinary course of nature shall be believed,—but rather, whether, of the fact said to exist, the existence would be out of, or (what comes to the same thing) repugnant to, the ordinary course of nature.
When credit was given to the existence of witchcraft,* sorcerers, and ghosts, and judicial decisions were grounded on evidence attesting or supposing the existence of such facts, the question concerning the intrinsic probability of such facts was a question of great frequency, and of the highest practical importance. In those times of terror, women were punished, and always with death, for acts of witchcraft; men for acts of sorcery; human creatures of both sexes for being possessed, or causing others to be possessed by devils: all were punished, or might have been punished, for all sorts of crimes, on the supposed evidence of ghosts.†
If ever it should happen that a man should be in danger of suffering punishment, or injustice in any other shape, on the credit of any such supposition, it would then be necessary to enter into a serious comparison of the two counter-forces: the improbability of the alleged supernatural fact, on the one hand; on the other hand, the probative force of the testimony on which the probability of the existence of these supernatural facts rested. Happily, in the present state of the public mind, this danger does not present itself as being seriously formidable. On the last occasion on which the notion of a ghost presented itself upon the judicial stage, his existence was not brought to view in the character of a subject-matter of proof or argument; but his non-existence (I should have said, her non-existence—for it was a female ghost) was assumed, and the assertors of it considered as having, by the assumption of that character, subjected themselves to legal punishment.
At present, the prevailing impression seems to be, that no fact, of a nature confessedly supernatural, is to be believed on the credit of human testimony; or, at any rate, of any such mass of human testimony as hath ever found itself outweighed by a preponderant mass of counter-testimony (composed, to wit, of an assemblage of witnesses superior in number and value taken together) in any court of justice.
While this mode of thinking (if I am correct in considering it as prevalent) continues in force,—as often as the topic of impossibility, or improbability approaching to impossibility, is introduced, the question will be,—Supposing (for argument’s sake) the existence of the alleged fact, would it be a supernatural one? or, in other words, a violation of any known law of nature? If it would, it is admitted on all hands that the fact (that is, the allegation whereby the existence of it is asserted) is not true: but my proposition is, that, however extraordinary it may appear, it does not import the violation of any law of nature. There is nothing, therefore, to prevent it from being believed on the credit of special human testimony: and, in particular, of such testimony as on my side has been adduced. Such, at this time of day, is the language of the party on whose side an article of testimony has been adduced, the probative force of which is on the other side encountered by the objection grounded on the intrinsic improbability of the alleged fact.
The same progress of intelligence, by which the mind of the judge is rendered better able to defend itself against any deceptions that might be attempted to be put upon it by false evidence brought forward in support of impossible or improbable facts, operates as a bar to prevent the bringing forward of such facts, and preserves his judicial faculties from being exposed to the attempt. Numerous as are the instances in which the discernment of the judge is put to the trial by false evidence, by evidence of false facts—facts which to the stain of falsehood add the characters of physical improbability, are seldom found of the number. It is not at present as in the days of magic and witchcraft, when the extraordinariness of the fact (so it did but derive its characters from that source) would, instead of diminishing, serve but to increase, its chance of being believed. False witnesses, in the planning of their tales of falsehood, take care to render them not unconformable in any respect, but, on the contrary, in all respects as conformable as possible, to what is understood to be the ordinary course of nature. When all is done that can be done to varnish the false tale, is the taint of improbability still visible in it?—the counter-evidence opposed to it, is little in danger of operating with less than its due weight. The reign of religious impostures, I mean impostures grounding their prospects of success on notions derived from religion, seems, throughout the field of scientific civilization, or (which happens to be the same thing) of Christendom, pretty well at an end. Judges are nowhere prepared to give credence to them; and, this being understood, suitors are as little prepared to hazard them. When, in the last century, the Cock-lane ghost afforded entertainment to an English court of justice, it did not present itself spontaneously—it was dragged into the light of day by persons who called down the hand of avenging justice upon the lying ape that gave it birth.
An objection answered.
On a loose and hasty survey, the case of impossibility or improbability—of intrinsic impossibility or improbability on the part of the supposed fact in question—might be apt to present itself in a different point of view from that in which it has been above exhibited; in a point of view in which the objection to the fact might be apt to appear not to belong to the head of circumstantial evidence, but to be constituted by a body of distinct evidence brought forward on the other side. This conception is accordingly in a manner implied in the import of the term intrinsic, applied as above: it may seem implied in the words impossibility and improbability, even when taken by themselves. Impossibility, it may be said, is a property that may with propriety be ascribed to the fact itself. Look at it by itself—every one sees it at first glance to be impossible. Look at it in this point of view, you see it by itself: what you do see is the single fact in question: but, seeing this, what other facts do you see? what other facts do you look for? what other facts have you need to look for? Absolutely none.
This view of the matter is what seems likely enough to be entertained; it being presented to the mind, and in a manner warranted, by the turn of the language which, on the occasion in question, is commonly employed. Upon closer examination, however, the propriety of it will vanish: it will be seen that the nature of the case indispensably requires that other facts should be taken into the account: in which case, such other facts, not being brought forward by any direct testimony, or other evidence, cannot but come under the head of circumstantial evidence.
Take one of the vulgar cases of witchcraft,—at present in civilized countries a ludicrous one—in most Christian countries not very long ago, in some parts of some such countries perhaps even now, but too serious a one. An old man, or (to take the more common case) an old woman, travelling, at pleasure, with prodigious velocity, and in every direction, through the air, without any assistance at all for the journey, or none better than what may be supposed to be afforded by a broomstick:—Do you believe it? No. Why? Because it is impossible: it is a fact in itself impossible. Are you in your senses? you will say so too. Would you have us go out of the subject, call in other facts, and attempt to reason about it? The very attempt to reason would be an irrational one.
The firmness of my persuasion on the subject can hardly be exceeded by any that could be entertained by a person, who, speaking of it, should employ such language as is above. But as to the source of that persuasion, upon examining it, I do not find it quite so simple. Were a fact of the description in question to be reported to me, I should regard it as not true. For what reasons? Because (not to look out for any mere repugnancies) it stands in contradiction, for example, to two physical laws. One is, that no body ever changes its place without some specific cause of motion:* another is, that, even when exposed to the action of any such specific cause of motion, no body suffers any such change of place, unless the force of such specific cause be in a degree sufficient to overcome the impediment opposed by the attraction of gravity.
Such are the two laws in question: but, in alleging (as I do for shortness) the existence of these two ideal, and as they might be termed verbal, laws, what is it that I allege in substance? In truth nothing more, in either case, than an assemblage (though that an immensely multitudinous one) of facts agreeing with each other in a certain point of view—with which facts the extraordinary phenomenon in question is seen to be unconformable. All bodies that I know anything of, tend towards the centre of the earth. By what consideration is it, that I am led to form a proposition so general and exclusive? By these which follow. Every motion I make or experience, every minute of time I sit or stand without any considerable motion, every motion I feel or see on the part of other bodies, concurs in giving me a confirmation of the truth of it, so far as depends upon the evidence of my own senses. Do I apply for further information to the presumed experience and observation—to the actual relation and declaration, of other individuals, my fellow-creatures?—the information runs constantly, and without any the least exception, in the same strain. Oral evidence and written evidence—men and books—books touching on this particular subject directly and professedly—books touching on it incidentally and collaterally,—all concur in giving evidence on the same side. All this body of information, all this immense and continually accumulating body of information, may at any time, so far as it were worth while to pursue the thread of analysis, be resolved into so many distinct articles of evidence, ranged under the heads of distinction already exhibited in this work.
After all, what does it amount to? Not any direct evidence disaffirming the existence of the supposed magic journey. What then? So many articles of circumstantial evidence: neither more nor less. But this circumstantial evidence, this supposed disaffirming evidence (it may again be asked,)—how does it disprove the truth of the supposed affirmative evidence? In no other individual instance was motion ever produced without a distinct assignable cause, referable to some one or other of the enumerated heads—in no other individual instance was the force of gravity ever overcome by a force less considerable than its own: to come to the point at once, in no other individual instance was an old woman ever carried through the air, either without any assisting instrument, or with an instrument of no greater degree of appropriate efficacy than a broomstick, by the exertions either of her own volition, or by the exertions of the volition of any other being (such, for example, as a devil,) applying itself to her bodily faculties for that purpose.
But, from the non-existence of any such extraordinarily produced motions in those instances, numerous as they are, how does it follow that no such motions have been produced in this instance? In none of those instances has there been any direct evidence affirming the existence of such extraordinarily produced motions. But in this instance such affirmative evidence does exist. Continue then to disbelieve the existence of such extraordinarily produced motions in those several instances; but think not, from their non-existence in those instances, to prove their non-existence, much less their impossibility, in this. Think not that, because their existence is not to be believed without evidence, therefore their existence can be reasonably disbelieved against evidence.
I should not expect to find in the person of any reader of these pages, an individual in whose mind a persuasion of the existence of any such aërial journey would, by the above train of reasoning, be produced. On the other hand, neither do I see how it is possible to contest the truth of it, so far as concerns the position it rests upon,—to wit, that all the argument that is adduced, or can be adduced, in disproof of such supposed fact, amounts to no more than this observation, viz. the want of consistency, conformity, agreement, analogy (take what word we will, it makes no difference,) between this extraordinary supposed fact, and the other ordinary facts above brought to view, of the truth of which we have been sufficiently persuaded by direct evidence. Yet upon no stronger nor other ground than this disconformity, we scruple not to disbelieve such extraordinary facts; and that with so firm a degree of persuasion, as without difficulty, and almost without thought, to pronounce them to be impossible.
So far, so good: but this propensity in our minds, does it alter, does it influence in any respect, the nature of the facts themselves? By disbelieving the existence, past, present, or future, of any fact whatsoever, is it in our power to destroy, to annihilate, its existence? to cause a fact never to have existed, for example, that in truth has existed? Unquestionably not. Most certainly, not any influence on the existence of the facts themselves can be exercised by the opinion such beings as we entertain of their existence. Yet, after all, when we come to inquire what is the nature of the effects which any such disconformity (or rather our observation of the existence of such disconformity, which is all we have of it,) is capable of producing,—the answer is, a disposition on our part to disbelieve the existence of the supposed extraordinary fact: a tendency in our own minds, not any tendency in the facts themselves.
Thus much indeed may be added, viz. that so often as a man in his proceedings assumes the falsity of such facts, so often will he, in that respect, act rationally, and find his conclusions warranted by experience: so often as he assumes the truth of them, and acts upon that foundation, so often will he find himself deceived—completely and deplorably deceived. This argument, after all, will, upon a strict scrutiny, appear to amount to nothing: to be in appearance perhaps a distinct and additional argument, but, in truth, so much of it as is true, no more than the same represented over again in another point of view. As to everything that is to come—as to all supposed future results—it is mere surmise, mere opinion, without facts, without evidence; a mere assumption of the matter in dispute. As to all past results, it amounts to no more than the already alleged and admitted disconformity, served up only in another shape.
What, then, is the true reply to the argument in question, supposing it adduced by a believer in witchcraft—adduced for the purpose of weakening our confidence in the proof afforded, by the disconformity in question, of the non-existence of that practice? It is this;—viz. that whatever argument is capable of being brought forward for the purpose of weakening our confidence in the argument indicative of the non-existence of that practice, applies in like manner, but with much greater force, to every argument that can be brought forward in favour of its existence. The travelling of old women, with or without broomsticks, through the air, is that sort of event which even you who affirm the existence of it in this or that particular instance, admit not to be a common one. But the existence of persons who, by any one of a great variety of motives, are impelled, and eventually compelled, to exhibit relations of facts, ordinary as well as extraordinary, which, on examination, prove not to be true, is a fact unhappily but too often verified. The action of old women in the character of witches, is a fact which, according to your own statement, has happened but now and then, at this or that particular time and place; but the action of men and women, old and young, with brooms and without, in the character of liars, is that sort of event which has been happening at all times and in all places of which we have any account. This is so true, that a wager (for though a wager is no direct proof of any fact which is the subject of it, it is, however, a proof of the real confidence of him who joins in it, and a punishment for rash confidence on the part of him who loses it,) in the character of an argument ad hominem at least, a wager on this subject might be brought forward, not altogether without congruity. Show witches on your part, while I on my part show liars, for the space of a term in Westminister Hall, at so many guineas a-head, and see whose purse will be fullest at the end of it.
When I have to choose between believing a common, and believing an uncommon, event, I believe the former, in preference to the latter. Why? Because, in the very words which I make use of, it is implied, that the event called common has hitherto been of more frequent occurrence than the event called uncommon: and to suppose that, having been hitherto more frequent, it will continue to be so, is only to believe, what all experience testifies, that the course of nature is uniform.
The conclusion seems to be, that, in support of a persuasion of the impossibility of any fact, the best and utmost proof which the nature of the case admits of, is the indication of its disconformity with some class of facts indicated by those propositions which, for the convenience of discourse, have been received under the appellation of laws of nature: and that such proof, so given, of such disconformity, may, with propriety, be referred to the head of circumstantial evidence.
Certainty, absolute certainty, is a satisfaction which on every ground of inquiry we are continually grasping at, but which the inexorable nature of things has placed for ever out of our reach. Practical certainty, a degree of assurance sufficient for practice, is a blessing, the attainment of which, as often as it lies in our way to attain it, may be sufficient to console us under the want of any such superfluous and unattainable acquisitions.
Untrustworthiness of the evidence by which facts disconformable to the course of nature have been attempted to be proved.
The accreditation of anti-physical or supernatural facts is by no means a matter of indifference to justice;—even of facts which, with relation to the fact upon the carpet, have no other circumstance in common than their being (on the supposition of their truth) supernatural facts. Every such fact, if admitted for true, opens the door for the admission of every other: it establishes the precedent: it establishes this generally applicable proposition, viz. that repugnancy to the obvious laws of nature is no bar to credibility. Give credit to any one instance of witchcraft,—with what consistency or reason can you, on the mere ground of natural incredibility, refuse to give credit to any other?
Such being the tendency of credit given to supernatural facts—such the mischievous influence of supernatural facts, in themselves indifferent and innoxious,—it may be not unuseful to bring to view such considerations as tend to diminish the credibility of anti-physical facts in the lump.
I. No fact of this class was ever established by that sort of evidence which, under the best system of procedure in respect to evidence, is considered as the best evidence, extracted in the best manner; and which, though termed the best sort, is not to be considered as an extraordinary sort, but the sort which is ordinarily required and obtained in ordinary cases.
II. Accordingly, anti-physical facts are seldom represented anywhere—never in the face of justice—as having manifested themselves in the presence of divers persons at the same time.
In the instance of ghosts and apparitions, this has already been matter of general observation. Why so?
1. A persuasion of this sort has in many instances been sincere—the consequence of delusion. In the instance of a celebrated author of Berlin,* to whom we are indebted for a most curious and instructive account of his own case, the appearance was the result of bodily indisposition; and the unreality of the existence of a correspondent external object known by the patient at the time. The apparition appears not to two persons at once. Why? Because two persons are not subject to the same indisposition, bodily or mental, manifesting itself in the same manner, at the same time.
2. Where the reported perception has not had delusion, but self-conscious mendacity, for its cause, it has never happened that two persons have concurred in the utterance of such report, on any judicial,† or solemn—though extra-judicial, occasion. Why? Because of the extreme and manifest difficulty of carrying through any such plan of imposition with success. Subjected to examination, they could not hope to escape contradicting themselves, as well as one another. Accordingly, when a man embarks in a plan of this kind, he chooses the company and the occasion, and takes care not to expose his tale to contradiction, designed or undesigned, from a confederate.
III. The anti-physical facts thus reported are never of the permanent, but always of the evanescent, kind.
Why? Because, were they of the permanent kind, the production of the object constituting the material source of the real evidence would of course be called for: nor could credence be expected, unless it were produced. This case, when looked nearly into, is found resolvable into the preceding one. Why? Because, supposing the source of evidence produced, and the evidence extracted from it, under the eye of the judge, the anti-physical fact manifests itself in the presence of divers persons at once.
If, in any instance, the exhibition of the anti-physical fact in the presence of divers persons has been undertaken or attempted, it has been in the way of legerdemain and imposture. What, then, is legerdemain? It is the apparent violation of some law or laws of nature; the circumstances which, if known, would show that no such violation existed, being concealed.
Upon this view of the matter, it should seem that those who maintain, in the character of a universal proposition, the non-existence of such physical facts as above described, may safely and even consistently admit their existence, in the event of their being deposed to by a considerable number of unexceptionable witnesses, some or all of them of good character, their testimony being extracted by a judicial examination, conducted with competent ability, in the best mode.
That the evidence should be extracted in the best mode, is a condition altogether essential. For, if you will accept of a bad mode—of a mode which English judges, knowing the best, and the value of the best, accept of, not only in preference, but to the exclusion of the best,—you may prove witchcraft, in the manner in which witchcraft has been proved, and conclusively, to the destruction of the defendant, in any quantity you please. In the closet of a judge or other person having mercy or destruction in his power, you may transform old women into witches by confession, in any number that you please; and, by taking upon yourself the wording of the confession, leaving nothing to do to the witch besides the signing with her mark, you save her so much trouble. Of course, you will not in this case fall into any such inconsistency as that of calling for the personal evidence to be corroborated (as in other cases) by real evidence; that is, of the permanent kind, as above.
Motives tending to produce affirmation of, and belief in, facts disconformable to the course of nature.
In the case of a fact in regard to which its apparent anti-physicality, its apparent incompatibility with the laws of nature, operates as a disprobative circumstance,—the probative force of the evidence on the other side—the probative force of the testimony deposing in affirmance of the fact—is, on various occasions, apt to be subjected to diminution from the same cause. In determining whether any degree of credence ought to be given to an apparently anti-physical fact, regard must be had not only to the circumstantial evidence afforded by its apparent anti-physicality, but also to the probability of seductive motives acting upon the witnesses by whom the fact is affirmed.
Various are the occasions on which, by the inordinate and seductive influence of this or that species of motive, men are led to represent as true, facts which if they were true would be anti-physical, but which are not true. Various are the classes of anti-physical facts, to the truth of which men are, on those occasions, led to depose. Coupling together the nature of the fact and the nature of the occasion, I proceed to bring to view some of the principal instances in which this cause of deception has been observed to operate.
In all these several cases, it may be of use here to premise that the seductive power of the species of motive in question, applying as it were to two different quarters of the mind at once, the understanding and the will, operates upon it with a double influence. What is not true, it prompts a man to regard as true; and what is neither true, nor so much as by him regarded as being so, it prompts him to report as if it were true.
I. Facts promising wealth. Transmutation of less valuable metals into gold. Seductive motive, in the character of a cause of delusion applying to the understanding of the person addressed—the person to whom the report is made,—the love of the matter of wealth. Seductive motive applying to the understanding of the original reporter (the supposed operator) in case of delusion (simple incorrectness, without mendacity,)—the same; also, the pleasure of curiosity, the pleasure of reputation, and of the power attending it. Seductive motive applying, in case of mendacity, to the will,—love of the matter of wealth; viz. the wealth to be gained by the sale of the false secret.
Transmutation of a less valuable metal into gold, is in itself neither more nor less credible—a fact neither more nor less anti-physical, nor devious in specie* —than transmutation of gold into a less valuable metal. Yet, the probative force of a testimony asserting the transmutation of another metal into gold, would be less than that of a testimony asserting the reverse. Why? Because the aggregate force of the seductive motives above mentioned is so much greater in the latter case than in the former. In the latter case, the most powerful of all, the desire of wealth does not apply.
II. Cure of diseases by supposed inadequate means. Seductive motives applying in the character of a cause of delusion to the understanding of the person addressed,—aversion to the pains of sickness: love of life. Seductive motive applying, in the case of delusion to the understanding of the original reporter (the supposed operator,)—the same as in the case of the transmutation of metals. Seductive motive applying, in the case of mendacity, to his will,—the same as in the case of delusion.
In this case, the fact of the cure of the disease in question by the operation of the supposed remedy in question, is one of seven contending facts, of all which the comparative probability requires to be weighed.
1. No real, or at least such, disease: the symptoms really existing, but the result of the imagination.
2. No real disease: the symptoms mendaciously reported.
3. The disease cured, but by the mere influence of the imagination, not by the operation of the supposed remedy,—or by some other remedy.
4. The disease gone off of itself: cured, without the assistance of the imagination, by the unknown healing power of nature, or by the cessation of the action of the morbific cause.
5. The disease not completely cured, i. e. not ultimately cured, but the symptoms mollified or removed for a time; viz. by either of the two preceding causes, Nos. 3 and 4.
6. The disease not cured in any degree: the cessation of the symptoms being falsely reported, whether through delusion or mendacity, and whether on the part of the patient or of the medical practitioner.
7. Or, lastly, the disease cured, and by the operation of the supposed remedy.
Of the delusive influence of the imagination, exemplifications may be found in the choice made formerly of medicines. Gold, it was thought, must be a sovereign remedy: and all the efforts of industry were employed to make it potable. A remedy for diseases? Why? Because it was so valuable—because it was so rare. Diamonds are still more valuable: happily they were never employed for the cure of diseases: partly, perhaps, because they were so much more difficult to come at than gold; partly, because there was no hope of rendering them potable.
III. Facts promising happiness, threatening unhappiness, both in the extreme. The fact in question, spoken of as evidentiary of a commission given by a supernatural being to a man, to issue commands to any or all other men; those commands converted into laws, by threats as well as promises; by prediction of pains to be endured in this or a future life, in case of disobedience—of pleasures, in case of obedience. Take even the promises alone, without the threats,—the seductive force is already beyond comparison greater than in the case of the making of gold, or the supernatural cure of diseases: add the threats, it receives a further and prodigiously greater increase.
Prudence suggests and requires the yielding to the probative force of this fact,—the giving credence to it, without staying to inquire into the intrinsic credibility of it—into its coincidence or deviousness, in degree or specie, with reference to the usual course of nature—into its conformity or repugnancy to the obvious laws of nature.
In this way,—by the help of an instrument of seduction which seems to be ready made, courting the hand of whoever has confidence enough to take it up and use it,—any man (it might seem) would have it in his power to impose laws, and those irresistible ones, upon any and every other. Such, accordingly, might have been the result, if the operation had been confined to one person, or if the operators, in whatever number, had agreed among themselves. Happily for human liberty at least (not to speak of happiness and virtue,) no such concord has existed. In different nations, sometimes even in the same nation, legislators seeking to rule men by this instrument have come forward, opposing and combating one another with this instrument, no less decidedly and strenuously than others with the sword. Each has proclaimed to the world,—These of mine are the true wonders; all others—all those others that you hear of, are false: these that I promulgate to you are the genuine commands; all others, all those others that you hear of, are spurious. Divided thus, and opposed to itself, the seductive force, how seldom soever effectually resisted, ceased to be absolutely irresistible.
Such are the motives by which a man may be urged to give credit to untrue facts. But how comes it to be in his power? Such is the force by which the will of man is subdued; but by what means is the understanding itself brought into subjection by the will?
I answer,—Judgment, opinion, persuasion, is in a very considerable degree under the dominion of the will; discourse, declared opinion, altogether. But it is the nature of opinion declared, truly or falsely declared, by one man, to produce real opinion on the part of another.
Judgment in the power of the will? By what means? By these means:—To bestow attention on one consideration, to refuse it to another, is altogether in the power of the will. It is in the power of a judge to hear one man speak in the character of a witness, to refuse to hear another; to hear one paper read in the character of an evidentiary document, to refuse to hear another. The power which, in the station of a judge, a man thus exercises in relation to persons and papers, the mind of every man, sitting in the tribunal established in his own bosom, exercises at pleasure over arguments and ideas: over the contents of evidentiary discourses, in the state in which, through the medium of the perceptive faculty, they have been introduced into the memory. An idea to which a man’s attention refuses itself, is, to every practical purpose, during the continuance of such refusal, as completely excluded, and thence rendered as completely inoperative, as the testimony of a witness, whom, before he has begun to speak, the judge has sent out of court; or a paper which he has disposed of in the same way, before any part of it has been read.*
That discourse of all kinds, more especially discourse declarative of opinion, is completely in the power of the will, is manifest enough. But he who is completely master of men’s discourses, is little less than completely master of men’s opinions. It is by the discourse of A, that the opinion of B is governed, much more than by any reflections of his own. To take upon trust from others (that is, from the discourses of others) his own opinions, is, on by far the greater part of the subjects that come under his cognizance and call upon him in one way or other for his decision, the lot, the inevitable lot, of the wisest and most cautious among mankind: how much more frequently so, that of the ignorant, the rash, the headstrong, the unthinking multitude!
How wicked (it is frequently said)—how absurd and hopeless the enterprise, to make war upon opinions! Alas! would it were as absurd and hopeless, as it is wicked and pernicious! Upon opinions, in an immediate way, yes. To crush the idea in the mind, to act upon it by mechanical pressure or impulse, is not in the power of the sword or of the rod. In an unimmediate, though, for efficacy, not too remote way, through the medium of discourses, no: for what, in the case of opinions (unhappily for mankind) is but too much in the power of the sword and of the rod, is, to crush the enunciating and offending pen or tongue: to cut asunder the muscles by which they are moved.
Unhappily, the power of the will over opinion, through the medium of discourse, is but too well understood by men in power. Meantime, thus much is plain enough: the more credible the facts in themselves are, the less need has a man to seek to gain credence for them by such means. By such means, credit may be given to facts the most absurd, currency to opinions the most pernicious. Facts which are true, opinions which in their influence are beneficial to society, have no need of such support. If this be to be admitted, the consequence seems undeniable. To employ such means for the securing credence to any fact, is to confess its falsehood and absurdity; to employ such means for the support of any opinion, is to confess its erroneousness and mischievousness. To pursue such ends by such means, is to betray, and virtually to confess, the practice of imposture, the consciousness of guilt.
The propensity to give credence to false facts, to give adoption and currency and practical influence to opinions howsoever absurd and pernicious, wheresoever reward or punishment is conceived as annexed, by supernatural and irresistible power, to the operation of giving credence or discredence to any alleged fact, is of itself too strong to need strengthening by any factitious means,—by the application of political rewards or punishments to that same purpose. Ascribe merit to belief,—belief will naturally be upon the look-out for the most difficultly credible facts to attach upon. In the belief of facts which present themselves as true, there can be no merit; since there is no exertion, no opportunity given to any one man to distinguish himself from any other—no opportunity to the most obsequious to distinguish himself from the most refractory. The difficulty (as far as there is any) consists in the giving credence to facts which, of themselves, present themselves as incredible: and the more incredible, the more merit; because without exertion there can be no merit, and the greater the exertion (whatever be the line) the greater the merit, as every man is ready to acknowledge. The more obvious and obtrusive the considerations by which, if attended to, the fact would be shown to be incredible, the greater the exertion necessary to keep them out.
Not that the difficulty, such as it is, is a difficulty which any one need despair or doubt of being able to surmount. It is a contention in which, in proportion to a man’s weakness of mind, he will have the advantage over the strong; in proportion to his ignorance, over the knowing; in proportion to his folly, over the wise; in proportion to his improbity, over the upright.*
It is not wonderful that motives and interests should have the power of producing belief in anti-physical facts; since they are found by experience to have the power of producing belief even in self-contradictory propositions.
Upon the face of the matter, eyes being closed against experience, it would seem that belief in self-contradictory propositions is impossible. On the contrary, it is altogether natural: and so natural as to be very generally exemplified.
It has already been shown in what manner the expectation of reward or punishment, as connected with particular opinions, operates upon the judgment, through the medium of the attention.
When the idea of merit comes to be attached to the act of belief, the degree of merit will naturally be supposed to be in proportion to the difficulty of believing, and the consequent exertion required for the production of belief.
But, to the eyes of an observer, the existence of exertion bestowed on the endeavour to produce belief has no surer test—the intensity of it in the character of an operative cause has no more correct measure—than the magnitude of the opposing forces which must have been overcome ere the effect has been accomplished. And the more repugnant to reason any proposition is, the more powerful are the obstacles which it opposes to any exertions that are made to cause it to be believed: consequently, if the obstacle has been overcome, the more powerful must have been the exertions by which it has been overcome—by which the effect thus aimed at has been produced: and the greater, it is therefore supposed, will be the reward attached to such meritorious exertions. Thus it is, that, the more absurd any proposition is, the greater efforts are naturally made to believe it.
Be the subject what it may, if the proposition proposed for belief be a proposition of the affirmative cast, belief will depend partly upon the probative force of the affirmative evidence, partly upon the weakness of the disaffirmative evidence, or the non-existence of any such evidence: meaning always by existence, relative existence—existence in the place in question—the judicatory in which the cause is heard, and is to be determined.
As to affirmative evidence: in the case here in question, an authority (that is, the opinion, real or pretended, of some other person or persons, whose situation affords a ground more or less strong for supposing them conversant with the subject-matter in question) will always operate with more or less probative force in the character of affirmative evidence. But,—for the exclusion of all disaffirmative evidence, and thence of all disprobative force,—the power of the will, applied in that direction with the degree of exertion required by the nature of the case, will of course suffice. Finding, therefore, no disprobative force to oppose it, the prevalence of the probative force of the affirmative evidence, and the production of the correspondent affirmative persuasion, become alike a matter of course.
The probative force of authority, in the character of evidence, will be, on the one hand, as the plenitude of ascribed knowledge—on the other, as the completeness of self-conscious ignorance.
If, by hope of reward alone, the effect in question (viz. belief) is thus capable of being produced; how much more surely by punishment! an instrument, which, apparent proximity and certainty being the same in both cases, acts with so much superior force. If by either of itself, how much more surely by both together! And if by either at an ordinary degree of apparent magnitude, how much more by both together, each at an infinite apparent magnitude!*
Thus stands the matter in regard to matters of fact in general, and in particular in regard to such as are improbable; these being the only ones (and that in proportion to their improbability) in respect of which there can be any need for applying, in this partial way, the force of the will to the operations of the understanding.
What remains to be shown is, why self-contradictory propositions,—which, when examined as above, are found to be, not improbable propositions concerning matters of fact, but propositions still less fitted to be credited upon rational grounds,—should find so much more easy and extensive evidence than propositions assertive of improbable matters of fact, even such as are so in the highest degree.
The reason seems to be, that, if duly examined, every self-contradictory proposition would be found to be an assemblage of words void of sense—a mass of downright nonsense. But, in proportion to the apparent respectability and trustworthiness of the authority of the instructor, will be the assurance of the pupil, that, from such a source, nothing that is capable of bearing so degrading an appellation can emanate. What, in this case, he will therefore tacitly assume and take for granted, is, that under this veil of apparent nonsense there lies enveloped some exquisite sense, too valuable to be made manifest to eyes so impure and dull as his are.
Issuing, or appearing to issue, from such a source, a proposition of this complexion will thus be upon a footing with a proposition taken from a foreign language, a language with which he has no acquaintance. From an elderly man of good reputation, in the capacity of an instructor, suppose a young pupil to hear delivered, in the character of an uncontrovertible truth, La illah allah, Mohammed resoul allah. To him it would in itself be so much nonsense: to a person acquainted with the Arabic language, if a pious Christian, it would present itself as a blasphemous falsehood—if a pious Mahometan, as a sacred and fundamental truth.
Thus easy is it for a mass of nonsense, by which no matter of fact is in truth asserted, to become the subject-matter of a severe and unshakeable belief: and this for the very reason that it is nonsense.
Compare, in this point of view, this nonsense, with any of those propositions which are enunciative of an intelligible matter of supposed fact, which we have the strongest reason that man can have for believing not to be anywhere realized: such as that of an old woman’s moving in the air at pleasure on a broomstick, or a man’s introducing his body into a quart bottle.
Though, in regard to either of these propositions, we have as full proof of its falsity, as, for the governance of human conduct, a man needs to have,—it is only by a mixture of ignorance and rash confidence, that either of them could be pronounced, in the strict sense of the word impossibility, impossible: since to the production of either of these effects, there needs but the existence of some power in nature with which we are not as yet acquainted.*
True it is, that, in my view of the matter at least, the existence of any such power would be a matter completely disconformable to everything that at present we are acquainted with respecting the established course of nature. Of this so full is my persuasion, that, in the way of wagering, I would, for the value of a shilling, stake upon it, without scruple, everything I possess: but, for the reason above intimated, in the consciousness I feel of my not being in possession of universal science, I find a reason altogether sufficient to prevent me from regarding it as being, in the strict sense of the word impossibility, impossible.
Distinction between facts impossible per se, and facts impossible si alia. Of alibi evidence.
There are two occasions on which the evidence, or argument, indicated by the words impossibility and incredibility, are capable of presenting themselves.
1. On the one side (say that of the demandant,) a fact is deposed to by a witness: on the other side (viz. that of the defendant,) no testimony is adduced, but it is averred that the supposed fact, as thus deposed to, is in its own nature incredible; or, what comes to the same thing, improbable to such a degree as to be incredible. Say, for example, a fact pretended to have taken place in the way of witchcraft: a man lifted up slowly, without any exertion of will on his part, or connexion with any other, from the ground into the air; or an old woman, by an exertion of volition on her part, riding in the air at pleasure on a broomstick.
On the one side (say again that of the demandant,) a fact is deposed to by a witness, as before: on the other hand, it is averred to be impossible—impossible not in its own nature, as before, but for this reason, viz. that the existence of it is incompatible with the existence of another fact, which in this view is deposed to by other evidence: say, the testimony of a superior number of witnesses. The defendant cannot, at the time alleged, have been committing the offence in London; for at that same time he was at York, a place above two hundred miles distant. The instance here given is that which is commonly known by the name of alibi. It supposes the incompatibility of a man’s existing in one place at any given point of time, with the existence of the same man in any other place at the same point of time: or, in other words, of a man’s existing in two places at once.
[For the purpose of the present inquiry, these two kinds of impossibility are exactly alike. The nature of the impossibility is in both cases the same: in both cases it consists in disconformity to the established course of nature. The difference is, that, in the first of the two cases, there is but one event mentioned, and that event is one which, taken by itself, cannot be true;—in the second case there are two events mentioned, either of which, taken by itself, may be true, but both together cannot.
In the first case, therefore, the impossibility being supposed, we immediately set it down that the testimony of the affirming witnesses is false: in the second place, we have to choose which of the two testimonies we shall disbelieve—that of the witnesses who affirm the one fact, or that of the witnesses who affirm the other fact.
If I am told that, on such a day, at such an hour, John Brown leaped over the moon, I at once reject the assertion as being incredible: this is impossibility of the first kind. If A tells me, that, on such a day, at such an hour, John Brown was in London; and B tells me, that, on the same day, and at the same hour, the same individual was at York; I pronounce with equal readiness that both stories cannot be true: but it remains a question for subsequent consideration, which of them it is that is false: and this is impossibility of the second kind.]*
The plea of alibi, although the fact should be regarded as established by satisfactory evidence, will not always be regarded as conclusively disprobative with regard to the fact to which it is opposed. Why? By reason of the uncertainty that may attach upon the point of time. The identity of the point of time in the two cases being assumed,—let it be proved, that at that time Titius was in the first floor of the house in question, it is thereby proved to be perfectly incredible that, at that same point of time, he should have been in the second floor. But, from the size of a second or third of time, enlarge the temporal seat of the fact to twenty-four hours:—on that supposition, and in that sense of the word time, proof of a man’s having been at London will not disprove the fact of his having been at York at the same time; as in the case of the celebrated flying high wayman.
Hence it is, that, in the case of the plea of alibi,—though, admitting the truth of the evidence in support of it, the incredibility of the fact in the character of a fact incredible in toto never comes into dispute,—this is not the case with it in the character of a fact incredible in degree. If it be satisfactorily proved, that on the 1st of January 1826, at noon, Titius was in the choir of Westminster Abbey,—it is out of dispute, that, on the 1st of January 1826, at noon, he could not have been in the choir of York Minster. But if all that has been proved is, that, on the 2d of January 1826, at noon, Titius was in the choir of Westminster Abbey,—whether, on the 1st of January in the same year, at the same time of the day, he was at York Minster, is not put out of dispute: the fact of his being at York Minster on the said 2d of January, if spoken of in the character of an incredible fact, will not be spoken of as being such in toto, but only in degree. Titius is not said to have been in both places at once: what is said of him now is, that at the one time he was in the one place, at the other time in the other: and the question is, whether the degree of quickness with which he is said to have passed from the one place to the other, be credible, under all the circumstances of the case?
Of the plea of alibi, the possible use is evidently without limit. It may alike be employed in penal causes and in non-penal causes. In both, the subject-matter of it may be the person of the defendant, the person of the demandant, or any other person—or instead of a person, it may be a thing.
But the sorts of causes in which in practice it is most in use to be employed, are penal causes: and the subject-matter of which the alibi is most in use to be predicated, is the person of the defendant. It cannot be true, that, at the time charged, I committed the offence charged, for at that time I was in another place; and it is not so much as charged, that, at the place where I then was, any such offence was committed by me or by any one else.
The system of procedure in which this plea occurs with a degree of frequency far beyond what is exemplified in any other, is the English;—more particularly in the case of the causes belonging to the higher penal classes, in which trial by jury is employed. In these cases, for one instance in which it is true, there are perhaps some hundreds in which it is false. The cases in which it is believed, I should not expect to find so numerous as those in which it is disbelieved; but (setting aside the one extraordinary case,) as often as it is advanced, perjury is employed in the support of it; and, as often as it is believed, so often is that perjury successful, and guilt triumphant, and the criminal taught by experience how he may proceed with impunity to the commission of other crimes. Should the prevention of crimes ever become a primary object with the powers that be, this source of turpitude, together with so many others, might without much difficulty be dried up: but as yet, fiat justitia, ruat cælum, has been the maxim: meaning by justitia, not the essence but the forms of justice.
1. One remedy that presents itself is, the not receiving any witnesses to a point of that sort, without their coming accompanied with a certain number of persons (of whom a part to be householders,) in the nature of the compurgators of the old law, to give an account of their character. There is no one, in such a country as this, be he who or what he may, who is not known to several.
An objection to this is, that there are many persons who have no good character, but who, for all that, may chance in good truth to have seen a man in one place, at the time when he is charged to have committed a crime at another. This is true; but, if the case with respect to their character be so, it is still fitting it should appear.
But he may be a stranger: either an absolute stranger, a foreigner; or a native just arrived from a distant country. But if this be the case, it is fitting it should appear: and the making it appear may be accepted in excuse for the want of compurgators. But how is this to appear? Not by the single oath of the witness himself; for he who will perjure himself in the immediate matter of the cause, where he is liable to confrontation, will still more readily do so in the preliminary matter, where he is not. The testimony, concerning him, of that person or those persons with whom he has lodged within a certain interval, should be required, in corroboration of his own: or, lastly, if he is an absolute vagabond, who has lodged nowhere, and is known to nobody, this also, it is very fitting, should appear.
2. Another remedy might be, the requiring notice to be given to the prosecutor, a certain number of days before the trial, of the names and places of abode of such intended witnesses—a practice already established as to all evidence on the side of the prosecution, in cases of treason—a practice much less liable to abuse in this instance than in that. In treason, there is always a common cause, and a common purse: a cause which sanctifies all means, and which, moreover, sets to work all means of obtaining acquittal, with at least as much alacrity in behalf of guilt as of innocence. In ninety-nine cases out of a hundred of ordinary prosecutions, the prosecutor has no wish to impress the judge with a persuasion of the guilt of the accused, any further than he is penetrated himself with that persuasion.
3. But the only adequate remedy, and one, perhaps, which may supersede the other two, is a power in the judge, after hearing all the testimony (but whether after or before the verdict given, may be made a question,) to adjourn the trial to a further day, or, what comes to the same thing, to appoint a new one; taking such securities as the nature of the case may require, for the forthcomingness of the defendant, by holding to bail, or by recommittal. In the mean time, all such particulars as may give a clue to the discovery of the situations and characters of such witnesses will have been drawn out of them by interrogation, and the prosecutor will be furnished with such lights as may guide him to the discovery of more numerous and unexceptionable witnesses, who may prove that the first set were themselves, at the time, in a place other than that wherein they pretended to have seen the accused; or may in some other way prove the falsity of their story.
Such a regulation being established,—men who now, for the sake of hire, or an unrighteous friendship, venture upon a perjury which rarely admits of detection, as knowing that it is but bearing on, and all is over, will shrink from the thought of encountering such a scrutiny as, after such lights, if well elicited, it is scarcely possible that anything but veracity should bear. I do conceive that the apprehension of such a scrutiny would, in by far the greatest number of those instances in which such machinations would otherwise be put in practice, prevent the attempt from being made at all, and, should it be made, from being unhappily successful.
Nor will these precautions, if rightly considered, be found to be less favourable, upon the whole, even to those at whose expense they are taken. The escaping by evidence of this suspicious kind, when unsifted and unexamined, never fails to leave a stain on a man’s character, which a thorough discussion, with such assistance, would effectually wash out.
Of improbability, as regards psychological facts.
On passing from physical facts to pyschological facts, a change of language becomes necessary. Where physical facts are concerned, the repugnancy between the alleged fact and the facts corresponding to the law of nature from which it is considered as deviating, or of which it is considered as a violation, is sometimes considered as existing in a degree which attaches to the alleged fact in question the character of improbability in this or that degree, sometimes in that superlative degree which stamps the alleged fact as impossible. In the case of the pyschological class of facts, this highest degree is not considered as having any place in the scale. In such and such circumstances it is improbable that a man should have acted or thought so and so,—thus much is said continually: but, that in any such case the improbability should have risen to the height of impossibility, is a degree of intensity to which the assertion has seldom been raised by the utmost heat of altercation. For expressing the conformity, the uniformity, observable amongst physical facts, laws of nature have been long ago laid down, as above observed. To the purpose of denoting conformity among psychological facts, the application of that fictitious mode of speech appears not to have been ever yet extended. The cause of this difference is obvious and simple. Amongst psychological facts, no such close conformity is commonly observed as amongst physical facts. They are not alike open to our observation; nor, in so far as they have happened actually to be observed, has the result of the observation been such as to warrant the supposition of a degree of conformity equally close.
The sort of internal perception or consciousness we all feel of what is called the freedom of our will, is of itself sufficient to put a negative upon the application of any such term as impossibility to any of the facts which present themselves as flowing from that source. To assert the impossibility of any given act, is to assert the necessity of the opposite act: and, in a proposition asserting the necessity of this or that act on the part of any human agent, a denial of the freedom of his will is generally understood to be involved.
Examined to the bottom, this consciousness of the freedom of our will would, it is true, be found to amount to neither more nor less than our blindness as to a part, more or less considerable, of the whole number of joint causes or concurrent circumstances, on which the act of the will, and with it the consequent physical acts, depend: nor is this the only instance of a false conception of power, growing out of impotence. But the question is, not as to what sort of expression might be best adapted to the case, but what the expression is, that is in actual use. And here too we see a further confirmation of the observation already made, viz. that it is only by a sort of misconception and verbal illusion, that such attributes as necessity, impossibility, probability, improbability, are considered and spoken of as if they were attributes and properties of the events themselves. The only sort of fact of which they are really and truly indicative, is the disposition of our mind, of our own judgment, to be persuaded, with a greater or less degree of assurance, concerning their existence or non-existence: to entertain an assurance, more or less intense, that, at the place in question, at the time in question, the fact in question was or was not in existence.
Physical improbabilities—facts rendered incredible to enlightened minds by their deviation from the course of irrational nature, have seldom of late years come upon the carpet in any court of judicature. The alleged improbabilities, which, on that theatre, are so much more frequently brought forward and opposed to direct evidence, are of the psychological or mental kind. Alleged or supposed acts or states of the mind:—consciousness or non-consciousness of this or that fact; recollection or non-recollection; intention or non-intention; operation or non-operation of the idea of this or that pain or pleasure, in the character of a motive; conduct of such or such a description, under the influence of such or such an intention:—any of these acts or modes of being are alleged as having exhibited themselves in the mind of some individual, in circumstances in which, to an unbiassed mind, judging from the known constitution of human nature, the existence of such alleged phenomena would present itself as incredible. Inconsistencies—inconsistencies in thought or action—is the denomination in common use, under which these psychological improbabilities may perhaps with sufficient propriety be comprised. By the improbabilities of this description with which a narrative appears pregnant, it will frequently lose its credit—if not as to the entire substance of it, at least as to the particular points to which the improbability appears to extend: the credibility of it will in this case be said to be overthrown by its own internal evidence, without its being capable of being supported, or requiring to be opposed, by any external evidence.
In cases of this description, the apparent improbability, as in the above-mentioned physical cases, will be susceptible of an indefinable multitude of gradations. Insanity may be considered as marking the highest point in this scale. According to the degree in each case, will be the force with which it acts against the direct evidence—the persuasive force with which it operates upon the mind of the judge. Such as its relative force is in each instance, such, in that instance, will be its effect. In one instance, it will prevail over the direct evidence, and the direct evidence will be effectually discredited by it: in another instance, the decision will be governed by the direct evidence; though, in proportion to the apparent improbability, it is but natural that the persuasion on which the decision is grounded should be lowered and weakened by it.
To class these cases of psychological improbability under heads, each head being illustrated by apposite examples taken from the most remarkable causes that have been determined, on questions of fact, among the most enlightened nations, would be a work of considerable curiosity; and, notwithstanding the impossibility of marking out and distinguishing the different degrees and shades of improbability, would be of no inconsiderable use. But the task would be a work of itself, too laborious, as well as voluminous, to be comprised within the limits of the present work.
The advances that, within the few last centuries, have been made in the study of these psychological laws of nature,—these advances, though not so describable, nor perhaps so considerable, as those made in relation to the physical laws of nature, have, however, been by no means undiscernible in their effects. To weigh evidence against evidence—to weigh particular evidence against general probability—requires a proportionable skill in the science of psychology. It is to a deficiency of skill in this useful science, accompanied with a consciousness of this deficiency, that the system of procedure may ascribe so many altogether inapposite or imperfect and now exploded contrivances for the investigation of legal truth: trial by ordeal, trial by battle,* wager of law, oaths expurgatory and suppletory.
To the same cause may moreover be ascribed those defects which may still be observed in such abundance in the system pursued with respect to evidence among the most enlightened nations. To investigate these defects, step by step, is the direct object of the present work: but, in the meantime, a presumptive only, but not unimpressive, proof of their existence, is the diversity of the courses pursued on this ground, as between nation and nation, in the pursuit of the same end; and not only as between nation and nation, but between province and province; nay, between court and court, in the same nation and the same province.†
[* ]But, for a practical purpose, such as that of judicial decision, the nature of the case seems to afford a particular mode of expression, an account of which has been already seen in a chapter in the introductory part of the work. (See Vol. VI. p. 225.)
[* ]A number of facts, each of which taken by itself proves nothing, or next to nothing, but the probative force of which, when alltaken together, amounts to something considerable, constitute what is called in common language a chain of circumstantial evidence.
[* ]Vide supra, Vol. VI. p. 382, No. 13.
[* ]This judge was Lord Chief-Justice Hale, who laid down this dictum, in consequence of two cases: one is mentioned in Coke’s P. C. cap. 104, and the other happened in Hale’s remembrance, in Staffordshire. The first case is thus stated—“An uncle who had the bringing up of his niece, to whom he was heir-at-law; and, while he was correcting her for some offence, she was heard to say, Good uncle, do not kill me. After which time the child could not be found, whereupon the uncle was committed upon suspicion of murder, and admonished by the justices of assize to find out the child by the next assizes: against which time he could not find her, but brought another child as like her in person and years as he could find, and apparelled her like the true child; but on examination she was found not to be the true child: upon these presumptions he was found guilty, and executed. But the truth was, the child being beaten, ran away, and was received by a stranger, and afterwards, when she came of age to have her land, came and demanded it, and was directly proved to be the true child.” The second case is as follows: “Where A was long missing, and upon strong presumptions B was supposed to have murdered him, and to have consumed him to asbes in an oven, that he should not be found; whereupon B was indicted of murder, and convicted and executed: and within one year after, A returned, being indeed sent beyond sea by B. against his will.” 2 Hale, 290.
[† ]The evidence so anxiously looked out for by this worthy judge was of the sort which the Romanists have in view by the term corpus delicti—the body of the offence—in so far as they have anything determinate in view. The body of the offence; meaning the fact of the offence: evidence of the fact of the offence,—evidence of that sort by which the fact of the offence may be indicated, without affording any indication of the person of the offender. In the case of real evidence, the indication thus afforded is frequently, though not constantly and necessarily, thus confined. In the case of testimonial evidence, the most natural case is, that the fact of the offence and the person of the offender should be comprised in the same narrative. That (in addition to direct testimonial evidence) circumstantial, and more particularly real evidence, is highly desirable, and ought accordingly to be looked out for, especially in case of homicide, is evident enough. But a rule requiring it as indispensably necessary in all cases, would, besides the unreasonableness of it, be inconsistent with the necessary practice in regard to a large division of crimes. It is of the nature of all verbal offences—offences committed by mere words—not to be productive of any real evidence.
[‡ ]Co. Litt. 6, b.
[∥ ]See Vol. VI. p. 231.
[* ]Here would come in one use of a table of circumstantial evidence. On the supposition of criminality, criminative circumstances of the description in question, could scarcely fail to be accompanied by a variety of other circumstances of the same tendency: apposite motive, apposite disposition, previously-known enmity, preparations, previous threats, confessorial discourse, criminative deportment (contemporary or subsequent;) all these articles of psychological evidence, under all or any of their numerous modifications; not to mention such further real evidence as might have been afforded by a transaction so described.
[† ]So lately as the year 1824, in an action for debt on simple contract, a defendant waged his law, as it was called, and applied to the Court of King’s Bench to determine what number of compurgators he ought to produce. But the plaintiff abandoned the action, and there the matter ended, King v. Williams, 2 B. & C. 538. This form of trial was abolished by the 3d and 4th Will. IV. c. 42.—Ed.
[‡ ]Heinecc. ad Pandect. lib. xii. tit. ii. pars iii. p. 292 (edit. 1728.)
[* ]Moliere’s Avare.
[† ]In addition to this error, comes that of forbearing to give justice the benefit of cross-examination, together with the other securities for trustworthiness that stand in connexion with that essential practice. But this latter is an error that belongs not to the present head. See Book II. Securities.
[‡ ]See Book IX. Exclusion.
[∥ ]The following is the whole of the quaint passage partially quoted in the text.—Ed.
[* ]The authorities do not go the length of showing that records are excluded as matter of evidence in any case, but only that they are not to be taken as conclusive of the truth of all the allegations contained in them,—as for instance, with relation to matters which were neither material nor traversable upon the issue. Co. Lit. 352, b. In criminal cases, if the jury give a general verdict where the felony is proved at another day than that laid in the indictment, then the party may falsify. But if the time when the fact was committed is found by the jury, all parties are concluded. Gilb. Ev. 870.—Ed.
[* ]See Book IX. Exclusion.
[* ]Instances have occurred, where,—a forged instrument having been employed in the execution of a plan of depredation,—the employment of a paper with a wrong stamp has afforded the means of detection, by bringing to bear against the body of authenticating evidence a mass of de-authenticating evidence not to be resisted. On a species of stamped paper not in use (for example) till the year 1800, a deed was written, purporting to have been executed in the year 1799. The non-existence of any such paper at the time of the date being a fact of the utmost notoriety among the officers of the stamp-office,—the testimony of any one of them, being thus placed out of the reach of all effectual temptation to mendacity, would be sufficient to outweigh the opposite testimony of any producible number of ordinary witnesses. [“In an action of improbation of a writ, which the Lords were convinced was forged, but puzzled for want of clear proof, the Lord Binning took up the writ in his hand, and holding it betwixt him and the light, discovered the forgery by the stamp of the paper.” Forbes’s Journal of the Session. Preface, xxvii.—Ed.]
[* ]Extract from the printed pamphlet on Circumstantial Evidence, occasioned by Donnellan’s case:—
[* ]In putting together the scattered papers from which this work was compiled, considerable difficulty was felt in assigning its proper place to what Mr. Bentham had written on the subject of improbability and impossibility.
[* ]While the opposite and corresponding attributives, probability and improbability, have thus been applied to the supposed matter of fact,—another pair of opposite and similarly corresponding attributives, viz. credible and incredible, have been applied, not only to the fact, but to the witnesses—not only to the supposed matter of fact itself, but to the persons by whose testimony the existence of it has been asserted.
[* ]This may be illustrated by the following passage from Locke:—“All propositions, wherein two abstract terms are affirmed one of another, are barely about the signification of sounds. For since no abstract idea can be the same with any other but itself, when its abstract name is affirmed of any other term, it can signify no more but this, that it may or ought to be called by that name; or that these two names signify the same idea. Thus, should any one say, that parsimony is frugality, that gratitude is justice—that this or that action is, or is not, temperance;—however specious these and the like propositions may at first sight seem, yet when we come to press them, and examine nicely what they contain, we shall find that it all amounts to nothing but the signification of those terms.”—Essay concerning Human Understanding, book iv. ch. viii. § 12.—Editor.
[† ]These propositions, even such an one as the last, viz. that two right lines cannot inclose a space, are but verbal contradictions. The terms straight line, and space, and inclose, are all general terms, and to affirm them one of another, is merely to say that they are of this or that meaning. It is merely to say that the meaning we ascribe to the term space, or rather to the term inclosure of space, is inconsistent with the meaning we ascribe to the term two straight lines. When we pass from names to things, and take two straight rods in our hands, we have the evidence of our senses, that they cannot inclose a space. If they touch at one part, they diverge from one another at every other part. If they touch at more than one part, they coincide, and then are equivalent to one straight line. What we mean by an inclosure, is such a line, or continuance of lines, that a body departing from any one point can pass on without turning back till it come to that point again, without having met in its progress any place where the line was interrupted, any place where there was not a portion of line. An inclosure is a line or conjunction of lines, which beginning at one point is continued till it comes to that point again. Two straight lines are lines which departing from one point never meet, but continually diverge. What is affirmed, then, is, that lines which do meet, in the manner thus described, and lines which in that manner do not meet, are not the same lines. The question, then, either is about the physical fact—the rods to which the evidence of sense and experience is applicable; or it is about the meaning of general terms.—Editor.
[* ]In the uncertainty thus confessed, there is nothing that applies, with any peculiar force, to this medification of circumstantial evidence. In the case of affirmative evidence (i. e. where the object of the evidence in question is to establish the existence, instead of the non-existence, of the fact to which it applies,) if we were to look for a mark by which to distinguish, on each occasion, such lots as may, with confidence, be given for conclusive, our endeavours would be equally unavailing. If, where the object is to frame a description of the cases in which the non-existence of one fact may, without danger of error, and by rules not exposed to contestation, be deduced from the existence of another; the cases in which the existence of one may be deduced with equal assurance and success from the existence of another fact, will not be found to stand upon ground in any degree more satisfactory. Evidence is the ground we have for the truth of the propositions of which we are least assured: evidence, and nothing better, is the ground we have for those facts, of the existence or non-existence of which we take upon us to speak with the greatest confidence. What there is of reality in the ideas expressed by such words as impossibility, necessity, certainty, is, as already observed, not any property in the things, in the facts themselves, but only the degree of persuasion by which the opinions we entertain in relation to those facts is accompanied. He who, by the use of any of these expressions of confidence, should think to attach any additional strength to the grounds of persuasion, or any additional security for universality of assent, would be the man to answer the question put in Scripture—“Which of you all, by taking thought, can add a cubit to his stature?”
[* ]So unfortunate is this great genius in his choice of this proposition, by which, in his conception, such great things may be done, that, even in the character of a proposition concerning the words in question, it is far from being uniformly true. If, by a report, true or false, I injure you in your reputation, is there no injustice in that case? Is it unconformable to the usage of language to say, I thereby do you an injustice? Yet, what property of yours is concerned in it, or affected by it? Will it be said, the property you have in your reputation? In this sense, the use of the word property is manifestly improper and figurative. Property is a thing that can be transferred: is reputation transferable?
[* ]In ordinary language, the phrase would be, disconformity to some one or more of the laws of nature.
[* ]It will be attempted to be shown in a subsequent note, that even what Mr. Bentham calls impossibilities in toto, are in reality nothing more than facts in a high degree improbable.—Editor.
[* ]Gravity, the species of attraction common to all perceptible matter, constitutes, as it were, the general law of nature: attractions inferior in force, or limited in extent—attraction of cohesion, of magnetism, of electricity, of galvanism, with the multitudinous system of chemical attractions,—constitute, as it were, so many exceptions to that general law of nature. The relation of a prodigy, will, if false, be traceable into the relation, the allegation, of a violation of some one or more of the known laws of nature. In most, if not all, the relations of this kind that have been current, so gross has been the deceit, that the law, or among the laws, stated as having been violated (i. e. superseded on that occasion by some being distinct from and paramount to the universe,) has been the general, the universal, law—the law of gravity itself. The other particular laws not having been in any degree known, at any period when relations of this sort obtained general credit among the superior and most enlightened classes, instances of any pretended violation of these more particular laws are scarce discernible. An instance of a needle of pure iron of a certain weight disobeying the magnet, or of a needle of pure gold of a certain weighta obeying it, would be in not less palpable repugnance to a known law of nature, than the assent of an insulated and naked man into the region of the sky would be. But while the magnet or its characteristic properties remained unknown, false stories about magnets could not be broached.
[* ]It may, perhaps, be doubted, whether, until our knowledge shall have attained a perfection far beyond what it has attained, or is ever likely to attain, such an attribute as impossibility in toto, can, in the sense in which Mr. Bentham uses the words, be predicated of any conceivable phenomenon whatever.
[* ]Fol. 12.
[* ]See his Essay on Miracles.
[* ]In the edition of Boswell’s Johnson published in 1835 (I. 36.) in illustration of the circumstance of Johnson having been touched by Queen Anne, the following proclamation is copied from the London Gazette, No. 2180:—“Whitehall, Oct. 8, 1686.—His Majesty is graciously pleased to appoint to heal, weekly, for the evil, upon Fridays; and hath commanded his physicians and chirugeons to attend at the office appointed for that purpose, in the Meuse, upon Thursdays, in the afternoon, to give out tickets.” During the rebellion of 1745, Charles Edward restored the practice in Scotland.—Ed.
[† ]e. g. The case of Bruce, the Abyssinian traveller.—Ed.
[* ]Vide Reid, Essay vi. ch. v.—Ed.
[† ]Essay, Book iv. ch. xv. § 5.
[* ]Improbability on the part of the fact of which the existence is deposed to and asserted by an article of evidence, of testimony delivered in the first instance, may even be constituted by an article of special counter-evidence, in any case in which the probative force of the counter-evidence is, with reference to that of the evidence delivered in the first instance, infirmative only, and not destructive. Indeed, whether the effect of the conflict on the first-delivered evidence be infirmative only, or altogether destructive,—supposing always that any degree of probative force belongs to either of the opposite articles separately taken,—a degree of improbability, more or less considerable, will by each be impressed on the existence of the fact affirmed by the other.
[* ]Instead of 200, say 12,000 miles, the distance of the opposite part of the earth’s surface,—and one would be apt to say that instead of improbability there was impossibility.
[† ]This being one of the chapters which was written twice over by Mr. Bentham, the last time without reference to the first,—the story of the King of Siam is told twice over at full length. As, however, it is brought to view for two very different purposes—viz. the first time, to illustrate the principle that the credibility of a fact relatively to a particular individual, depends upon his acquaintance with the course of nature; and the second time, to exemplify the effect of improbability as an article of circumstantial evidence; and as, moreover, the illustrations which accompany the story, in the two places in which it is introduced, are different,—it has not been thought advisable to strike it out in either place.—Editor.
[* ]That it might very well have happened to it not to be removed, is made evident, by the instance already mentioned of the medical man who pronounced the story of the freezing of mercury to be a lie. Water is not a metal—mercury is: and the experience of the doctor could scarce have failed to present to his notice metals more in number than were likely to have presented themselves to the monarch’s notice.
[† ]Folio 170, 198.
[‡ ]In the Nuremberg Chronicle, the following are the two passages:—
[* ]The early English and Scottish statutes for the punishment of witchcraft, continued in force till the passing of 9 Geo. II. c. 5. In Ireland, the statute of Elizabeth, to the same effect, was only repealed by 1 & 2 Geo. IV. c. 18. In the Institute of the Law of Scotland, published by Professor Forbes, in 1730, the existence and criminalty of witchcraft is supported with great energy. The punishment of death on this charge was indeed inflicted in Scotland so late as 1722, by one of the remote local judges.—Ed.
[† ]In some publication, I believe in more than one, of the earlier part of the 18th century, or the latter part of the 17th, I remember, in former days, to have seen a print of a scene, in which, on the occasion of a public trial, the ghost of a murdered person appeared in court to give evidence against the murderer. From such an appearance, no danger could ever be to be apprehended for truth and justice. But the mischief would be, if the reported testimony of the ghost of a murdered man should be received in evidence, and gain credit; as his reported testimony, said to be given dum in vitâ, does in actual practice.—[There have been several instances in which witnesses have detailed evidence in courts of justice, which they have alleged to be mere repetitions of the narratives of apparitions. Sir Walter Scott printed for the Bannatyne Club, a remarkable record of such a trial, under the title, “Trial of Duncan Terig alias Clerk, and Alexander Bane Macdonald, for the murder of Arthur Davis, sergeant in General Guise’s regiment of foot, June ad m dcc liv.” Sergeant Davis, who had charge of a party for enforcing the disarming act in one of the wildest districts of the Highlands, had been murdered in a solitary spot, where his body was concealed. At the trial, a Highlander gave a distinct narrative of the appearance of the sergeant’s ghost, which gave a very lucid account of the murder, and described the spot where the body was concealed. A woman, to whom this witness was servant, confirmed his testimony. All efforts to discover the real source or motive of this extraordinary representation, by cross-examination or otherwise, seem to have been baffled with much acuteness; but it was impossible to avoid one circumstance, which was dwelt upon as an incongruity viz. that the ghost of the English sergeant, who had known no Gaelic in his lifetime, was obliged to use that language to be intelligible to the witness. Though the other parts of the evidence were distinctly against the accused, the suspicion of the jury seems to have been roused by this transaction, and an acquittal was found.—In a case which happened in the Highlands, so lately as September 1832, evidence of a similar description was given, with this difference, that it passed through the medium of a dream. A pedlar had been murdered, and his pack concealed. An individual took the officers of justice to a spot where he said a voice had told him in a dream in Gaelic, that the pack would be found; and it was there discovered accordingly. Suspicion was naturally roused against the witness, but all attempts to discover the real ground of his knowledge were baffled. The accused was found guilty, and executed.—In a weekly periodical, called “The Opera Glass,” for 3d February 1827, there is an unauthenticated account of a trial in the State of Maryland, of the year 1798 or 1799, in which it would appear that a witness in a civil case was examined as to communications which he said he had received from a ghost. The question regarded a testament, and the ghost in question, was that of the testator. It had this peculiarity, that it wore a sky-blue coat. The ghost had much communication with the witness on other matters, but the court overruled the proposal of the counsel to put questions beyond the subject-matter of the cause.—Ed.]
[* ]Of the causes of motion, an enumeration has been given, suprà, pp. 84, 85.
[* ]Nicolai: in Tilloch’s Philosophical Magazine, and Hibbert’s Philosophy of Apparitions.
[† ]See above, p. 101, Note †.—Ed.
[* ]By transmutation, according to the sense in which it is understood, may be signified, either a pair of anti-physical facts, or a fact simply devious in specie. Understood in a literal sense, it involves two anti-physical facts: annihilation of the other metal—creation of the gold. On either of the two following suppositions, it is but a fact simply devious:—1. Gold is a compound of two other bodies: they are transmuted into gold, by being mixed together, in the requisite manner and in the requisite proportions. 2. Goldis one of divers ingredients in the composition of another known body: by the separation of the other ingredients, the remaining ingredient is transmuted into gold.
[* ]If hope or fear are employed in influencing the discourse employed in relation to persuasion,—the discourse employed in giving expression to persuasion or the pretence of it,—they are thereby employed in the promotion or the subornation of mendacity. For if truth, if veracity, be all that is desired, reward and punishment, hope and fear, are alike useless: it is only by giving birth to falsehood—to wilful falsehood, to mendacity—that they are capable of producing any effect. If the persuasion which a man is about to declare will be on the side desired, whether reward be given to him in that event or no—whether punishment will be given to him in the event of his declaring it on the opposite side or no,—neither reward nor punishment can be of any use. The only supposition on which they can be of any use, is, that, if left free to declare his persuasion, he would declare it on the side opposite to that which is desired.
[* ]In the field of theology (all history joins in proving it,) the attachment manifested by men to an opinion, and in particular by men in power, is strenuous and inflexible, in the direct proportion of its absurdity. The effect is the result of the conjoint influence of a variety of causes.
[* ]This very connexion between reward and punishment on the one hand, between opinion and declaration of opinion, on the other; between reward, and the belief, or expression of belief, of a wonderful fact,—between punishment and the disbelief, or expression of disbelief,—has, in the case of supernatural facts, been urged by some as a circumstance operating in proof of the fact, and which ought to have its influence in producing on our parts a persuasion of the truth of the fact, on our observing it to be reported as true by others. In other words; the wonderfulness of a fact being given, its credibility will be increased by the circumstance of its having been announced as contributing to constitute the foundation of a religious system; i. e. of a system of commands, sanctioned by threats and promises, represented as emanating from an invisible supernatural being, as above. Increased? Why increased? For this reason: Because it is the nature of this circumstance to provoke scrutiny; and to operate as an advertisement to sceptics and disbelievers to come forward and inquire into the fact, and contest the truth of it.
[* ]Compare this with p. 86, and the Note at the bottom of that page.—Editor.
[* ]N.B.—The paragraphs within the brackets are inserted by the Editor. They appeared necessary to complete the section, which is composed of mere fragments, written at different times by the Author, and which the Editor was obliged to connect together as he best could.
[* ]In the year 1818, in an appeal of death, in the King’s Bench, the appellee waged his battle. After very lengthened, and very learned arguments, the Court decided unanimously in favour of the trial. Subsequently, however, the appellant, by his counsel, stated that he prayed for no further judgment, and the Court ordered judgment to be stayed on the appeal. Ashford v. Thornton, 1 B. & A. 405. In the following year all such appeals were abolished, as well as wager of battle, and trials by battle, in writs of right, by the 59 Geo. III. c. 46.—Ed.
[† ]As it was before remarked that there are two kinds of physical improbability, so there are two corresponding kinds of psychological improbability. An alleged psychological fact may be improbable in itself,—that is, improbable, because incompatible with the ordinary course of nature; or it may be improbable, because incompatible, in a greater or less degree, with some other fact which has been established by independent evidence; for instance (in the case of delinquency,) with the character of the supposed delinquent.
[* ]Gravity, the species of attraction common to all perceptible matter, constitutes, as it were, the general law of nature: attractions inferior in force, or limited in extent—attraction of cohesion, of magnetism, of electricity, of galvanism, with the multitudinous system of chemical attractions,—constitute, as it were, so many exceptions to that general law of nature. The relation of a prodigy, will, if false, be traceable into the relation, the allegation, of a violation of some one or more of the known laws of nature. In most, if not all, the relations of this kind that have been current, so gross has been the deceit, that the law, or among the laws, stated as having been violated (i. e. superseded on that occasion by some being distinct from and paramount to the universe,) has been the general, the universal, law—the law of gravity itself. The other particular laws not having been in any degree known, at any period when relations of this sort obtained general credit among the superior and most enlightened classes, instances of any pretended violation of these more particular laws are scarce discernible. An instance of a needle of pure iron of a certain weight disobeying the magnet, or of a needle of pure gold of a certain weighta obeying it, would be in not less palpable repugnance to a known law of nature, than the assent of an insulated and naked man into the region of the sky would be. But while the magnet or its characteristic properties remained unknown, false stories about magnets could not be broached.
[* ]It may, perhaps, be doubted, whether, until our knowledge shall have attained a perfection far beyond what it has attained, or is ever likely to attain, such an attribute as impossibility in toto, can, in the sense in which Mr. Bentham uses the words, be predicated of any conceivable phenomenon whatever.
[a ]I say of a certain weight: for of late a notion has been advanced, and, for aught I can say to the contrary, proved, that most if not all bodies may be seen to pay obedience to the magnet when reduced to a certain minute quantity.
[a ]In this instance, Mr. Bentham really breaks down the distinction between his impossibility in toto, and impossibility in degree. Causes may exist (says he) which are not yet known to us, adequate to the production of some effect; but not adequate to the production of so great an effect. If so, however, this impossible fact is impossible in degree only, and not in toto.