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CHAPTER XIII.: Of the Nature and Philosophy of Evidence. - James Wilson, Collected Works of James Wilson, vol. 2 
Collected Works of James Wilson, edited by Kermit L. Hall and Mark David Hall, with an Introduction by Kermit L. Hall, and a Bibliographical Essay by Mark David Hall, collected by Maynard Garrison (Indianapolis: Liberty Fund, 2007). Vol. 2.
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Of the Nature and Philosophy of Evidence.
Evidence is a subject of vast and extensive importance in the study and practice of the law: it is of vast and extensive importance, likewise, in the business and general management of human affairs.
“Experience,” says Sir William Blackstone, “will abundantly show, that above a hundred of our law suits arise from disputed facts”—and facts are the objects of evidence—“for one where the law is doubted of. About twenty days in the year are sufficient, in Westminster Hall, to settle, upon solemn argument, every demurrer or other special point of law, that arises throughout the nation. But two months are annually spent in deciding the truth of facts, before six distinct tribunals, in the several circuits of England, exclusive of Middlesex and London, which afford a supply of causes much more than equivalent to any two of the largest circuits.”a
But evidence is not confined, in its operation and importance, to the courts of justice. Its influence on the human mind, human manners, and human business is great and universal. In perception, in consciousness, in remembrance, belief always forms one ingredient. But belief is governed by evidence. In every action which is performed with an intention to accomplish a particular purpose, there must be a belief that the action is fitted for the accomplishment of the purpose intended. So large a share has belief in our reasonings, in our resolutions, and in our conduct, that it may well be considered as the main spring, which produces and regulates the movements of human life.
In a subject of so great use and extent, it is highly necessary that our first principles be accurate and well founded. It is, however, matter of just and deep regret, that very little has been said, and that still less has been satisfactorily said, concerning the sound and genuine sources and principles of evidence. “An inquiry,” says Eden, in his Principles of penal law, “into the general rules and maxims of evidence, is a field still open to investigation. For the considerations of some very ingenious writers on this subject have been too much influenced by their acquiescence in personal authority, and we are furnished rather with sensible and useful histories of what the law of evidence actually is, than with any free and speculative disquisition of what it ought to be.”b The truth is, I may add, that the philosophy, as well as the law of evidence is a field, which demands and which is susceptible of much cultivation and improvement.
“Evidence, in legal understanding,” says my Lord Coke, “doth not only contain matters of record, as letters patent, fines, recoveries, enrollments, and the like; and writings under seal, as charters and deeds; and other writings without seal, as court rolls, accounts, which are called evidences, instrumenta; but, in a larger sense, it containeth also testimonia, the testimony of witnesses, and other proofs to be produced and given to a jury, for the finding of any issue joined between the parties. And it is called evidence, because thereby the point in issue is to be made evident to the jury. Probationes debent esse evidentes (id est) perspicuae et faciles intelligi.”c1
The learned Author of the Commentaries on the Laws of England describes evidence as signifying that, which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue, either on the one side or on the other.d
When we are informed that it is called evidence, because thereby the point in issue is to be made evident to the jury; we are informed of little, if any thing, more than an identical proposition; and, consequently, are not enabled by it to make any considerable progress in the attainment of science.
To say that evidence demonstrates, makes clear, and ascertains the truth of a fact, is rather to describe its effects than its nature. Its effects, too, are described in a manner, neither very accurate nor precise; as I shall afterwards have occasion to show more particularly.
But the truth is, that evidence is much more easily felt than described. We experience, though it is difficult to explain, its operations and influence. A man may have a good eye, and may make a good use of it, though he cannot unfold the theory of vision.
These reflections naturally lead us to one illustrious source of the propriety of a jury to decide on matters of evidence. “It is much easier,” says the Marquis of Beccaria, “to feel the moral certainty of proofs, than to define it exactly. For this reason I think it an excellent law, which establishes assistants to the principal Judge, and those chosen by lot: For that ignorance which judges by its feelings is little subject to errour.”e
Perhaps there is no more unexceptionable mode of expressing what we feel to be evidence, than to say—it is that which produces belief.
Belief is a simple operation of the mind. It is an operation, too, of its own peculiar kind. It cannot, therefore, be defined or described. The appeal for its nature and existence, must be made to the experience, which every one has of what passes within himself. This experience will, probably, inform him, that belief arises from many different sources, and admits of all possible degrees, from absolute certainty down to doubt and suspicion.
The love of system, and of that unnatural kind of uniformity to which system is so much attached, has done immense mischief in the theory of evidence. It has been long the aim and labour of philosophers to discover some common nature, to which all the different species of evidence might be reduced. This was the great object of the schools in their learned lucubrations concerning the criterion of truth. This criterion they endeavoured to find from a minute and artificial analysis of the several kinds of evidence; by means of which they expected to ascertain and establish some common quality, which might be applied, with equal propriety, to all. Des Cartes placed this criterion of truth in clear and distinct perception,f and laid it down as a maxim, that whatever we clearly and distinctly perceive to be true, is true. The meaning, the truth, and the utility of this maxim seem to be all equally problematical.
This criterion of truth was placed by Mr. Locke in a perception of the agreement or disagreement of our ideas. This, indeed, is the grand principle of his philosophy, and he seems to consider it as a very important discovery. “Knowledge,” says he, “seems to me to be nothing but the perception of the connexion and agreement, or disagreement and repugnancy of any of our ideas. In this alone it consists. For since the mind, in all its thoughts and reasonings, hath no other immediate object but its own ideas, which it alone does or can contemplate; it is evident, that our knowledge is only conversant about them.”g “We can have no knowledge farther than we have ideas. We can have no knowledge farther than we have perception of that agreement or disagreement.”h
In order to perceive whether two ideas agree or disagree, they must be compared together: According to this hypothesis, therefore, all knowledge must arise from the comparison of ideas.
Let us try this hypothesis by applying it minutely and carefully to a principle of knowledge allowed by all philosophers—and the only one allowed by all philosophers—to be sound and unexceptionable: I mean the principle of consciousness:—I mean, farther, the most clear and simple appeal, which can possibly be made to that clear and simple principle, I think. This has always been admitted to form a principle and a part of knowledge. According to the hypothesis of Mr. Locke, this knowledge must be nothing but the perception of the agreement—for disagreement cannot enter into the question here—between ideas. What are the ideas to be compared, in order that the agreement may be discovered? I and thought? Let us grant every indulgence, and suppose, for a moment, that existence and thought are nothing more than ideas; and then let us see how the comparison of ideas, and how their agreement in consequence of their comparison, will stand.
How is the knowledge of this truth—“I think”—drawn from the perception of any agreement between the idea of me and the idea of thought? When I think, I am conscious of thinking; and this consciousness is the clearest and most intimate knowledge. But does this consciousness arise from the perception of agreement between the idea of me and the idea of thought? No. From Mr. Locke’s own system, no such knowledge can arise from the perception of any such agreement: because the agreement does not, at all times, take place.
“The mind” says he, “can sensibly put on, at several times, several degrees of thinking, and be sometimes, even in a waking man, so remiss, as to have thoughts dim and obscure to that degree, that they are very little removed from none at all; and, at last, in the dark retirements of sound sleep, loses the sight, perfectly, of all ideas whatsoever.i The knowledge, then, of this truth, that I think, does not arise from the perception of any agreement between the idea me and the idea of thought; since, according to Mr. Locke’s own account of the matter, that agreement does not always subsist.
Let us try this hypothesis—that knowledge is the perception of the agreement or disagreement of our ideas—by another instance; and let us attend to the result. I perceive a small book in my hand. My faculty of seeing gives me not merely a simple apprehension of the book; it gives me, likewise, a concomitant belief or knowledge of its existence; of its shape, size, and distance. By the perception of the agreement of what ideas, is this knowledge or belief acquired? This belief is inseparably connected with the perception of the book; and does not arise from any perception of agreement between the idea of the book, and the idea of myself.
I remember to have dined a few days ago with a particular company of friends. This remembrance is accompanied with clear and distinct belief or knowledge. How does this belief or knowledge arise? Is it from the perception of agreement between ideas? Between what ideas? Between the idea of me, and the idea of my friends? This agreement, I presume, would have been the same, whether we had dined together or not. Is it from the agreement between the idea of me and the idea of dining? But how, from this agreement, will the knowledge of dining with my friends arise? On this state of the supposition, I might have dined with strangers or with enemies.
Let us examine the future, as we have examined the past. If a certain degree of cold freezes water now, and has been known to freeze it in all times past; we believe, nay, we rest assured, that the same degree of cold will continue to freeze the water while the cold continues; and returning, will be attended with the same effect, in all times future. But whence does this belief or assurance arise? Does it arise from the comparison of ideas—from the perception of their agreement? When I compare the idea of cold with that of water hardened into a transparent solid body, I can perceive no connexion between them: no man can show the one to be the necessary effect of the other: no one can give a shadow of reason why nature has conjoined them. But from experience we learn that they have been conjoined in times past; and this experience of the past is attended with a belief and assurance, that those connexions, in nature, which we have observed in times past, will continue and operate in times to come.k
We now see, that our knowledge, which proceeds from consciousness, from the senses, from memory, and from anticipation of the future occasioned by experience of the past, arises not from any perception of the agreement or disagreement of our ideas. These are important parts of our knowledge: the evidence, upon which these parts of our knowledge is founded, is an important part of the system of evidence. All, however, rests on principles, very different from that which is assigned by Mr. Locke, as the sole principle of knowledge. We may go farther still, and say, if knowledge consists solely in the perception of the agreement or disagreement of ideas, there can be no knowledge of any proposition, which does not express some agreement or disagreement of ideas; consequently, there can be no knowledge of any proposition, which expresses either the existence, or the attributes, or the relations of things; which are not ideas. If, therefore, the theory of ideas be true, there can be no knowledge of any thing else: if we have knowledge of any thing else, the theory of ideas must be unfounded. For the knowledge of any thing else than ideas must arise from something else than the perception of the agreement or disagreement of ideas.l
This principle, assigned by Mr. Locke, that knowledge is nothing but a perception of the agreement or disagreement of our ideas, is founded upon another—the existence of ideas or images of things in the mind. This theory I have already had an opportunity of considering, and I shall not now repeat what I then delivered at some length. I then showed, I hope, satisfactorily, that this theory has no foundation in reason, in consciousness, or in the other operations of our minds; but that, on the contrary, it is manifestly contradicted by all these, and would, in its necessary consequences, lead to the destruction of all truth, and knowledge, and virtue; though those consequences were, by no means, foreseen by Mr. Locke, and many succeeding philosophers, who have adopted, and still adopt, his theory concerning the existence of ideas or images of things in the mind.
If this theory has, as we have shown it to have, no foundation—if these ideas have, as we have shown them to have, no existence; then Mr. Locke’s great principle, which represents knowledge and belief, and consequently evidence, upon which knowledge and belief are grounded, as consisting in the perception of the agreement or disagreement of those ideas, must tumble in ruins, like a superstructure, whose basis has been undermined and removed.
It is nevertheless true, that, in our law books, the general principles of evidence, so far as any notice is taken of general principles on this subject, are referred, for their sole support, to the theory of Mr. Locke. This will appear obvious to any one who is acquainted with that theory, and peruses the first pages of my Lord Chief Baron Gilbert’s Treatise upon Evidence. This unfolds the reason why I have employed so much pains to expose and remove the sandy and unsound foundation, on which the principles of the law of evidence have been placed.
Let us now proceed to erect a fabrick on a different and a surer basis—the basis of the human mind.
I am, by no means, attached to numerous and unnecessary distinctions; but, on some occasions, it is proper to recollect the rule, “qui bene distinguit, bene docet.”2 It is possible to blend, as well as to distinguish, improperly. Nature should always be consulted. We are safe, when we imitate her in her various, as well as when we imitate her in her uniform appearances. By following her as our guide, we can trace evidence to the following fourteen distinct sources.
I. It arises from the external senses: and by each of these, distinct information is conveyed to the mind.
II. It arises from consciousness; or the internal view of what passes within ourselves.
III. It arises from taste; or that power of the human mind, by which we perceive and enjoy the beauties of nature or of art.
IV. It arises from the moral sense; or that faculty of the mind, by which we have the original conceptions of right and wrong in conduct; and the original perceptions, that certain things are right, and that others are wrong.
V. Evidence arises from natural signs: by these we gain our knowledge of the minds, and of the various qualities and operations of the minds, of other men. Their thoughts, and purposes, and dispositions have their natural signs in the features of the countenance, in the tones of the voice, and in the motions and gestures of the body.
VI. Evidence arises from artificial signs; such as have no meaning, except that, which is affixed to them by compact, or agreement, or usage: such is language, which has been employed universally for the purpose of communicating thought.
VII. Evidence arises from human testimony in matters of fact.
VIII. Evidence arises from human authority in matters of opinion.
IX. Evidence arises from memory, or a reference to something which is past.
X. Evidence arises from experience; as when, from facts already known, we make inferences to facts of the same kind, unknown.
XI. Evidence arises from analogy; as when, from facts already known, we make inferences to facts of a similar kind, not known.
XII. Evidence arises from judgment; by which I here mean that power of the mind, which decides upon truths that are selfevident.
XIII. Evidence arises from reasoning: by reasoning, I here mean that power of the mind, by which, from one truth, we deduce another, as a conclusion from the first. The evidence, which arises from reasoning, we shall, by and by, see divided into two species—demonstrative and moral.
XIV. Evidence arises from calculations concerning chances. This is a particular application of demonstrative to ascertain the precise force of moral reasoning.
Even this enumeration, though very long, is, perhaps, far from being complete. Among all those different kinds of evidence, it is, I believe, impossible to find any common nature, to which they can be reduced. They agree, indeed, in this one quality—which constitutes them evidence—that they are fitted by nature to produce belief in the human mind.
It will be proper to make some observations concerning each of the enumerated kinds of evidence. In the business of life, and, consequently, in the practice of a lawyer or man of business, they all occur more frequently than those unaccustomed to consider them are apt to imagine.
I. The truths conveyed by the evidence of the external senses are the first principles, from which we judge and reason with regard to the material world, and from which all our knowledge of it is deduced.
The evidence furnished even by any of the several external senses seems to have nothing in common with that furnished by each of the others, excepting that single quality before mentioned. The evidence of one sense may be corroborated, in some instances; and, in some instances, it may be corrected, by that of another sense, when both senses convey information concerning the same object; but still the information conveyed by each is clearly perceived to be separate and distinct. We may be assured that a man is present, by hearing and by seeing him; but the evidence of the eye is nevertheless different from the evidence of the ear.
In the sacred history of the resurrection, a beautiful and emphatical reference is had to this distinct but corresponding and reciprocally corroborating evidence of the senses, by him, by whom our nature was both made and assumed. “Behold,” says he, to his trembling and doubting disciples, who supposed they had seen a spirit, “Behold my hands and my feet, that it is I myself; handle me, and see; for a spirit has not flesh and bones as you see me have: And when he had thus spoken, he showed them his hands and his feet.”m To the unbelieving Thomas, he is still more particular in his appeal to the evidence of the senses, and in the manner, in which the appeal should be made. “Reach hither thy finger and behold my hands; and reach hither thy hand, and thrust it into my side; and be not faithless, but believing.”n
Many philosophers of high sounding fame, deeming it inconsistent with their character to believe, when they could not furnish an argument for belief, have endeavoured, with much learned labour, to suggest proofs for the doctrine—that our senses ought to be trusted. But their proofs are defective, and shrink from the touch of rigid examination. Other philosophers, of no less brilliant renown, have clearly and unanswerably discovered and exposed the fallacy of those pretended proofs: so far they have done well: but very unwisely they have attempted to do more: they have attempted to overturn our belief in the evidence of our senses, because the arguments adduced on the other side to prove its truth were shown to be defective and fallacious. From human nature an equal departure is made on both sides. It appeals not to reason for any argument in support of our belief in the evidence of our senses: but it determines us to believe them.
II. Consciousness furnishes us with the most authentick and the most indubitable evidence of every thing which passes within our own minds. This source of evidence lays open to our view all our perceptions and mental powers; and, consequently, forms a necessary ingredient in all evidence arising from every other source. There can be no evidence of the objects of the senses, without perception of them by the mind: there can be no evidence of the perception of them by the mind, without consciousness of that perception. When we see, and feel, and think, consciousness gives us the most certain information that we thus see, and feel, and think. This, as has been observed on a former occasion, is a kind of evidence, the force and authenticity of which has never been called in question by those, who have been most inclined to dispute every thing else, except the evidence of reasoning.
III. I mentioned taste, or that power of the mind by which we perceive and enjoy the beauties of nature and art, as one of the sources from which evidence arises. This faculty, in its feeling and operations, has something analogous to the impressions and operations of our external senses; from one of which, it has, in our own and in several other languages, derived its metaphorical name.
With the strictest propriety, taste may be called an original sense. It is a power, which furnishes us with many simple perceptions, which, to those who are destitute of it, cannot be conveyed through any other channel of information. Concerning objects of taste, it is vain to reason or discourse with those who possess not the first principles of taste. Again; taste is a power, which, so soon as its proper object is exhibited to it, receives its perception from that object, immediately and intuitively. It is not in consequence of a chain of argument, or a deductive process of our reasoning faculties, that we discover and relish the beauties of a poem or a prospect. Both the foregoing characters belong evidently to consciousness and to the external senses. All the three are, therefore, considered, with equal propriety, as distinct and original sources of information and evidence.
That it is fruitless to dispute concerning matters of taste has been so often said, that it has now acquired the authority and notoriety of a proverb; and its suggestions are consequently supposed, by some, to be dictated only by whim and caprice. Nothing, however, can be farther from the truth. The first and general principles of taste are not less uniform, nor less permanent, than are the first and general principles of science and morality. The writings of Cicero present him to us in two very different characters—as a philosopher, and as a man of taste. His philosophical performances are read, and ought to be read, with very considerable grains of allowance; the beauties of his oratory have been the subjects of universal and uninterrupted admiration. The fame of Homer has obtained an undisputed establishment of near three thousand years. Has a reputation equally uniform attended the philosophical doctrines of Aristotle or Plato? The writings of Moses have been admired for their sublimity by those, who never received them as the vehicles of sacred and eternal truth.
The first and most general principles of taste are universal as well as permanent: it is a faculty, in some degree, common to all. With youth, with ignorance, with savageness, its rudiments are found to dwell. It seems not less essential to man to have some discernment of the beauties both of art and nature, than it is to possess, in some measure, the faculties of speech and reason. “Let no one,” says Cicero, in his excellent book de oratore, “be surprised that the most uncultivated mind can mark and discern these things: since, in every thing, the energy of nature is great and incredible. Without education or information, every one, by a certain tacit sense, is enabled to judge and decide concerning what is right or wrong in the arts. If this observation is true with regard to pictures, statues, and other performances, in the knowledge of which they have less assistance from nature; it becomes much more evident and striking with regard to the judgments, which they form concerning words, harmony, and pronunciation: for concerning these there is a common sense implanted in all, of which Nature intended that no one should be entirely devoid.”o
IV. As a fourth source of evidence, I mentioned the moral sense, or that faculty of the mind, by which we have the original conceptions that there is a right and a wrong in conduct; and that some particular actions are right, and others wrong. Without this last power of applying our conceptions to particular actions, and of determining concerning their moral qualities, our general and abstract notions of moral good and evil would be of no service to us in directing the conduct and affairs of human life.
The moral sense is a distinct and original power of the human mind. By this power, and by this power solely, we receive information and evidence of the first principles of right and wrong, of merit and demerit. He, who would know the colour of any particular object, must consult his eye: in vain will he consult every other faculty upon the point. In the same manner, he, who would learn the moral qualities of any particular action, must consult his moral sense: no other faculty of the mind can give him the necessary information.
The evidence given by our moral sense, like that given by our external senses, is the evidence of nature; and, in both cases, we have the same grounds for relying on that evidence. The truths given in evidence by the external senses are the first principles from which we reason concerning matter, and from which all our knowledge of the material world is drawn. In the same manner, the truths given in evidence by our moral faculty are the first principles, from which we reason concerning moral subjects, and from which all our knowledge of morality is deduced. The powers, which Nature has kindly bestowed upon us, are the only channels, through which the evidence of truth and knowledge can flow in upon our minds.
Virtuous demeanour is the duty, and should be the aim, of every man: the knowledge and evidence of moral truth is, therefore, placed within the reach of all.
Of right and wrong there are many different degrees; and there are also many different kinds. By the moral faculty we distinguish those kinds and degrees. By the same faculty we compare the different kinds together, and discover numerous moral relations between them.
Our knowledge of moral philosophy, of natural jurisprudence, of the law of nations, must ultimately depend, for its first principles, on the evidence and information of the moral sense. This power furnishes to us the first principles of our most important knowledge. In dignity, it is far superiour to every other power of the human mind.
V. The fifth kind of evidence, of which I took notice, is that, which arises from natural signs. By these, we gain information and knowledge of the minds, and of the thoughts, and qualities, and affections of the minds of men. This kind of evidence is of very great and extensive importance.
We have no immediate perception of what passes in the minds of one another. Nature has not thought it proper to gratify the wish of the philosopher, by placing a window in every bosom, that all interiour transactions may become visible to every spectator. But, although the thoughts, and dispositions, and talents of men are not perceivable by direct and immediate inspection; there are certain external signs, by which those thoughts, and dispositions, and talents are naturally and certainly disclosed and communicated.
The signs, which naturally denote our thoughts, are the different motions of the hand,p the different modulations or tones of the voice, the different gestures and attitudes of the body, and the different looks and features of the countenance, especially what is termed, with singular force and propriety, the expression of the eye. By means of these natural signs, two persons, who never saw one another before, and who possess no knowledge of one common artificial language, can, in some tolerable degree, communicate their thoughts and even their present dispositions to one another: they can ask and give information: they can affirm and deny: they can mutually supplicate and engage fidelity and protection. Of all these we have very picturesque and interesting representations, in the first interviews between Robinson Crusoe and his man Friday; they are interesting, because we immediately perceive them to be natural. Two dumb persons, in their intercourse together, carry the use of these natural signs to a wonderful degree of variety and minuteness.
We acquire information, not only of the thoughts and present dispositions and affections, but also of the qualities, moral and intellectual, of the minds of others, by the means of natural signs. The eloquence or skill of another man cannot, themselves, become the objects of any of our senses, either external or internal. His skill is suggested to us by the signs of it, which appear in his conduct: his eloquence, by those which appear in his speech. In the same manner, and by the same means, we receive evidence concerning his benevolence, his fortitude, and all his other talents and virtues.
This evidence, however, of the thoughts, and dispositions, and passions, and talents, and characters of other men, conveyed to us by natural signs, is neither less satisfactory, nor less decisive upon our conduct in the business and affairs of life, than the evidence of external objects, which we receive by the means of our senses. It is no less a part, nor is it a less important part, of our constitution, that we are enabled and determined to judge of the powers and the characters of men, from the signs of them, which appear in their discourse and conduct, than it is that we are enabled and determined to judge, by our external senses, concerning the various corporeal objects, which we have occasion to view and consider.
The variety, the certainty, and the extent of that evidence, which arises from natural signs, may be conceived from what we discover in the pantomime entertainments on the theatre; in some of which, the whole series of a dramatick tale, and all the passions and emotions to which it gives birth, are represented, with astonishing address, by natural signs. By natural signs, likewise, the painters and statuaries infuse into their pictures and statues the most intelligible, and, sometimes, the most powerful expression of thought, of affections, and even of character.
Among untutored nations, the want of letters is supplied, though imperfectly, by the use of visible and natural signs, which fix the attention, and enliven the remembrance of private or publick transactions. The jurisprudence of the first Romans exhibited the picturesque scenes of the pantomime entertainment. The intimate union of the marriage state was signified by the solemnities attending the celebration of the nuptials. The contracting parties were seated on the same sheep skin; they tasted of the same salted cake of far or rice. This last ceremony is well known by the name of confarreatio. A wife, divorced, resigned the keys, by the delivery of which she had been installed into the government of domestick affairs. A slave was manumitted by turning him round, and giving him a gentle stroke on the cheek. By the casting of a stone, a work was prohibited. By the breaking of a branch, prescription was interrupted. The clenched fist was the emblem of a pledge. The right hand was the token of faith and confidence. A broken straw figured an indenture of agreement. In every payment, weights and scales were a necessary formality. In a civil action, the party touched the ear of his witness; the plaintiff seized his reluctant adversary by the neck, and implored, by solemn solicitation, the assistance of his fellow citizens. The two competitors grasped each other’s hand, as if they stood prepared for combat, before the tribunal of the pretor. He commanded them to produce the object of the dispute. They went; they returned, with measured steps; and a turf was cast at his feet, to represent the field, for which they contended, and the property of which he was to decide.q
In more enlightened ages, however, the use and meaning of these natural and primitive signs became gradually obliterated. But a libel may still be expressed by natural signs, as well as by words; and the proof of the intention may be equally convincing and satisfactory in cases of the first, as in those of the last kind.
VI. But evidence arises frequently from artificial as well as from natural signs; from those which are settled by agreement or custom, as well as from those which are derived immediately from our structure and constitution. Of these artificial signs there are many different species, contrived and established to answer the demands and emergencies of human life. The signals used by fleets at sea, form a very intricate and a very interesting part of naval tacticks.
But language presents to us the most important, as well as the most extensive, system of artificial signs, which has been invented for the purpose of giving information and evidence concerning the thoughts and designs of men. I mean not that language is altogether an invention of human art; for I am of opinion, that, if the first principles of language had not been natural to us, human reason and ingenuity could never have invented and executed its numerous artificial improvements. But of every language, at least of every refined language now in use, the greatest part consists of signs that are purely artificial. The evidence of language may, therefore, with sufficient propriety, be arranged under that kind of evidence, which arises from artificial signs.
Natural signs, though, as we have seen, susceptible of very considerable extent and variety, yet, when compared with the almost boundless variety and combinations of our conceptions and thoughts, have been found, in every country, and in every period of society, altogether inadequate to the communication of them in such a degree, as to accomplish, with tolerable conveniency, the necessary ends and purposes of human life. Hence the invention and improvement of language; which, as has been already observed, consists chiefly of artificial signs, contrived, at first, in all probability, only to supply the deficiencies of such signs as were natural; but afterwards, as language became refined and copious substituted almost entirely in their place.
But even language, however copious and refined, is, on examination and trial, found insufficient for conveying precisely and determinately all our conceptions and designs, consisting of numberless particulars, combined into numberless forms, and related by numberless connexions. Hence the necessity, the use, and the rules of interpretation, which has been introduced into all languages and all laws. A most extensive field now opens before us. But I cannot go into it. I am confined, at present, to the mere outlines of the philosophy of evidence. Let us therefore proceed.
VII. A seventh kind of evidence arises from human testimony in matters of fact.
Human testimony is a source of evidence altogether original, suggested by our constitution, and not acquired, though it is sometimes corroborated, and more frequently corrected, by considerations arising from experience.
“This is very plain,” says my Lord Chief Baron Gilbert, “that when we cannot see or hear any thing ourselves, and yet are obliged to make a judgment of it, we must see and hear from report of others; which is one step farther from demonstration, which is founded upon the view of our own senses: and yet there is that faith and credit to be given to the honesty and integrity of credible and disinterested witnesses, attesting any fact under the solemnities and obligation of religion, and the dangers and penalties of perjury, that the mind equally acquiesces therein as in knowledge by demonstration; for it cannot have any more reason to be doubted than if we ourselves had heard or seen it. And this is the original of trials, and all manner of evidence.”r
I shall not, at present, make any remarks upon the position—that demonstration is founded on the view of our own senses. It will be examined when I come to consider that kind of evidence which arises from reasoning—probable and demonstrative. But, at present, it is material to observe, that, in the sentiments, which the very learned Judge, whose character and talents I hold in the highest estimation, seems to entertain concerning the source of our belief in testimony, the restraints which are wisely calculated, by human regulations, to check, are mistaken for the causes intended to produce this belief. The true language of the law, addressed to the native and original sentiments of the human mind concerning testimony, is not to this purport—If you find a witness to be honest and upright, credible and disinterested: if you see him deliver his testimony under all the solemnities and obligation of religion, and all the dangers and penalties of perjury; you must then believe him. Belief in testimony springs not from the precepts of the law, but from the propensity of our nature. This propensity we indulge in every moment of our lives, and in every part of our business, without attending, in the least, to the circumspect precautions prescribed by the law.
Experience has found it necessary and useful, that, at least in legal proceedings, the indulgence of this natural and original propensity should be regulated and restrained. For this purpose, the law has said, that, unless a witness appears, as far as can be known, to be honest and upright, credible and disinterested; and unless he delivers his testimony under all the solemnities and obligations of religion, and all the dangers and penalties of perjury; you shall not—It does not say, you shall not believe him. To prevent this act or operation of the mind might be impracticable on hearing the witness: but it says—you shall not hear him. Accordingly, every gentleman, in the least conversant about law proceedings, knows very well, that the qualifications and solemnities enumerated by the learned Judge, are requisite to the competency, not to the credibility, of the witness—to the admission, not to the operation, of his testimony.
The proceedings of the common law are founded on long and sound experience; but long and sound experience will not be found to stand in opposition to the original and genuine sentiments of the human mind. The propensity to believe testimony is a natural propensity. It is unnecessary to encourage it; sometimes it is impracticable to restrain it. The law will not order that which is unnecessary: it will not attempt that which is impracticable. In no case, therefore, does it order a witness to be believed; for jurors are triers of the credibility of witnesses, as well as of the truth of facts. The positive testimony of a thousand witnesses is not conclusive as to the verdict. The jury retain an indisputable, unquestionable right to acquit the person accused, if in their private opinions, they disbelieve the accusers.s In no case, likewise, does the law order a witness not to be believed; for belief might be the unavoidable result of his testimony. To prevent that unavoidable, but sometimes improper result, the law orders, that, without the observance of certain precautions, which experience has evinced to be wise and salutary, the witness shall not be heard. This I apprehend to be the true exposition and meaning of the regulations prescribed by the law, before a witness can be admitted to give his testimony.
It will be pleasing and it will be instructive to trace and explain the harmony, which subsists between those regulations, thus illustrated, and the genuine sentiments of the mind with regard to testimony. To discover an intimate connexion between the doctrines of the law and the just theory of human nature, is peculiarly acceptable to those, who study law as a science founded on the science of man.t
In a former part of these lectures,u I had occasion to take notice of the quality of veracity, and of the corresponding quality of confidence; and to show the operation and the importance of those qualities in promises, which relate to what is to come. It is material to illustrate the connexion, the importance, and the operation of the same corresponding qualities in testimony, which relates to what is past.
By recalling to our remembrance what we have experienced, we find, that those, with whom we have conversed, were accustomed to express such and such particular things by such and such particular words. But, in strictness, experience conveys to us the knowledge only of what is past: can we be assured, that, in future, those who have it in their power to express different things by the same words, and the same things by different words, will, in neither manner, avail themselves of that power? We act, and we cannot avoid acting, as if we were so assured. On what foundation do we so act? Whence proceeds this belief of the future and voluntary behaviour of those, with whom we converse? Have they come under any engagements to do what we believe they will do? They have not; and if they had, what assurance could engagements convey to those, who possessed no previous reliance on the faith of promises?
There is, in the human mind, an anticipation, an original conviction, that those, with whom we converse, will, when, in future, they express the same sentiments, which they have expressed in time past, convey those sentiments by the same language which, in time past, they have employed to convey them. There is, in the human mind, a farther anticipation and conviction, that those, with whom we converse, will, when they express to us sentiments in the same language, which they have formerly employed to express them, mean, by those sentiments, to convey to us the truth.
The greatest and most important part of our knowledge, we receive by the information of others. We are, accordingly, endowed with the two corresponding principles, which I have already mentioned, and which are admirably fitted to accomplish the purpose, for which they were intended. The first of them, which is a propensity to speak the truth, and to use language in such a manner as to convey to others the sentiments, which we ourselves entertain, is a principle, degenerate as we are apt to think human nature to be, more uniformly and more universally predominant, than is generally imagined. To speak as we think, and to speak as we have been accustomed to speak, are familiar and easy to us: they require no studied or artificial exertion: a natural impulse is sufficient to produce them. Even the most consummate liar declares truths much more frequently than falsehoods. On some occasions, indeed, there may be inducements to deceive, which will prove too powerful for the natural principle of veracity, unassisted by honour or virtue: but when no such inducements operate, our natural instinct is, to speak the truth. Another instinct, equally natural, is to believe what is spoken to be true. This principle is a proper and a useful counterpart to the former.
A very different theory has been adopted by some philosophers. No species of evidence, it is admitted by them, is more common, more useful, and even more necessary to human life, than that which is derived from testimony. But our reliance, it is contended, on any evidence of this kind is derived from no other principle than our observation of the veracity of human testimony, and of the usual conformity of facts to the reports of witnesses. If it were not discovered by experience, that the memory is tenacious to a certain degree; that men have commonly a principle of probity and an inclination to truth; and that they have a sensibility to shame, when detected in a falsehood—If it were not discovered by experience, that these qualities are inherent in human nature; we should never repose the least confidence in human testimony.v
If belief in testimony were the result only of experience; those who have never had experience would never believe; and the most experienced would be the most credulous of men. The fact, however, in both instances, is precisely the reverse; and there are wise reasons, why it should be so. The propensity which children, before they acquire experience, discover to believe every thing that is told to them, is strong and extensive. On the contrary, experience teaches those who are aged, to become cautious and distrustful.
“Oportet discentem credere”3 has acquired, and justly, the force and the currency of a proverb. How many things must children learn and believe, before they can try them by the touchstone of experience! The infant mind, conscious, as it should seem, of its want of experience, relies implicitly on whatever is told it; and receives, with assurance, the testimony of every one, without attempting and without being able to examine the grounds, upon which that testimony rests. As the mind gradually acquires experience and knowledge, it discovers reasons for suspecting testimony, in some cases, and for rejecting it, in others. But unless some reasons appear for suspicion or disbelief, testimony is, through the whole of life, considered and received as sufficient evidence to form a foundation both of opinion and conduct.
The reasons for suspecting or rejecting testimony may generally be comprised under the following heads. 1. When the witness testifies to something, which appears to us to be improbable or incredible. 2. When he shows himself to be no competent judge of the matter, of which he gives testimony. 3. When, in former instances, we have known him to deliver testimony, which has been false. 4. When, in the present instance, we discover some strong inducement or temptation, which may prevail on him to deceive.
While experience and reflection, on some occasions, diminish the force and influence of testimony, they, on other occasions, give it assistance, and increase its authority. The reputation of the witness, the manner in which he delivers his testimony, the nature of the fact concerning which his testimony is given, the peculiar situation in which he stands with regard to that fact, the occasion on which he is called to produce his testimony, his entire disinterestedness as to the matter in question—each of these taken singly may much augment the force of his evidence—all of these taken jointly may render that force irresistible.
In a number of concurrent testimonies, there is a degree of probability superadded to that, which may be termed the aggregate of all the probabilities of the separate testimonies. This superadded probability arises from the concurrence itself. When, concerning a great number and variety of circumstances, there is an entire agreement in the testimony of many witnesses, without the possibility of a previous collusion between them, the evidence may, in its effect, be equal to that of strict demonstration. That such concurrence should be the result of chance, is as one to infinite; or, to vary the expression, is a moral impossibility.
To this important kind of evidence we are indebted for our knowledge of history, of criticism, and of many parts of jurisprudence; for all that acquaintance with nature and the works of nature, which is not founded on our own personal observations and experience, but on the attested experience and observations of others; and for the greatest part of that information concerning men and things, which is necessary, if not to the mere animal support, yet certainly to the ease, comfort, improvement, and happiness of human life.
In the profession of the law, and in the administration of justice, this kind of evidence acquires an importance very peculiar indeed. To examine, to compare, and to appreciate it, forms much the greatest part of the business and duty of jurors, and a very great part of the business and duty of counsel and judges. It is, therefore, highly interesting to society, that the genuine and unsophisticated principles of this kind of evidence should be generally known and understood. From the very cursory view which we have taken of them, it appears that the rules observed by the common law, in admitting and in refusing testimony, are conformable to the true theory of the human mind, and not to the warped hypotheses of some philosophical systems.
VIII. The eighth source of evidence, which I mentioned, is human authority in matters of opinion.
“Cuilibet in sua arte perito est credendum”4 is one of the maxims of the common law. Like many other of its maxims, it is founded in sound sense, and in human nature.
Under the former head we have seen, that the infant mind, inexperienced and unsuspicious, trusts implicitly to testimony in matters of fact. It trusts, in the same implicit manner, to authority in matters of opinion. In proportion as the knowledge of men and things is gradually obtained, the influence of authority as well as of testimony becomes less decisive and indiscriminate. By the most prudent, however, and the most enlightened, it is, at no period of life, suffered to fall into desuetude or disrepute; even in subjects and sciences, which seem the most removed from the sphere of its operations.
Let us suppose, that, in mathematicks, the science in which authority is justly allowed to possess the least weight, one has made a discovery, which he thinks of importance: let us suppose that he has ascertained the truth of this discovery by a regular process of demonstration, in which, after the strictest review, he can find no defect or mistake: will he not feel an inclination to communicate this discovery to the inspection of a mathematical friend, congenial in his studies and pursuits? Will this inclination be prompted merely by the pride or pleasure of making the communication? Will it not arise, in some degree, from a very different principle—a latent but powerful desire to know the sentiments of his friend, not only concerning the merits, but also concerning the certainty of the discovery? Will not the sentiments of his friend, favourable or unfavourable, greatly increase or diminish his confidence in his own judgment? A man must possess an uncommon degree of self-sufficiency, who feels not an increased reliance on the justness of his discoveries, when he finds the truth of them fortified by the sentiments of those, who, with regard to the same subjects, are conspicuous for their penetration and discernment.
The evidence arising from authority, as well as that arising from testimony, other circumstances being equal, becomes strong in proportion to the number of those, on whose voice it rests. An opinion generally received in all countries and all ages, acquires such an accumulation of authority in its favour, as to entitle it to the character of a first principle of human knowledge.
IX. The ninth kind, into which we have distinguished evidence, is that, which arises from memory. The senses and consciousness give us information of those things only which exist at present. The memory conveys to us the knowledge of those things which are past. The evidence of memory, therefore, forms a necessary link in every chain of proof, by which the past is notified. This evidence is not less certain than if it was founded on strict demonstration. No man hesitates concerning it, or will give his assent to any argument brought to invalidate it. On it depends, in part, the testimony of witnesses, and all the knowledge which we possess, concerning every thing which is past.
The memory, as well as other powers of the mind which we have already mentioned, is an original faculty, and an original source of evidence, bestowed on us by the Author of our existence. Of this faculty we can give no other account, but that such, in this particular, is the constitution of our nature. Concerning past events we receive information from our memory; but how it gives this information, it is impossible for us to explain.w
“All our other original faculties, as well as memory, are unaccountable. He only, who made them, comprehends fully how they are made, and how they produce in us not only a conception, but a firm belief and assurance of things, which it concerns us to know.”x
Remembrance, however, is not always accompanied with full assurance. To distinguish by language, those lively impressions of memory, which, produce indubitable conviction, from those fainter traces, which occasion an inferiour degree of assent, or, perhaps, diffidence and suspense, is, we believe, an impracticable attempt. But every one is, in fact, competent to distinguish them in such a manner, as to direct his own judgment and conduct.
X. Evidence arises from experience; as when from facts already known, we make inferences to facts of the same kind, unknown.
This branch of our subject is of great extent, of much practical utility, and highly susceptible of curious and instructive investigation. But it cannot, on this occasion, be treated as fully as it deserves to be treated.
The sources, from which experience flows, are—the external senses, consciousness, memory. The senses and consciousness give information to the mind of the existing facts, which are placed within the sphere of their operation. These articles of intelligence, when received, are committed to the charge of the memory. From all these faculties, however, there results only the knowledge of such facts as have come, or now come under our notice. But, in order to render this knowledge of service to us in directing our own conduct, and in discovering the nature of things, a further process of the mind becomes necessary. From the past, or the present, or from both, inferences must be made to the future: those inferences form that kind of evidence, which arises from experience.
If an object is remembered to have been frequently, still more, if it is remembered to have been constantly, succeeded by certain particular consequences; the conception of the object naturally associates to itself the conception of the consequences; and on the actual appearance of the object, the mind naturally anticipates the appearance of the consequences also. This connexion between the object and the frequent or constant consequences of the object, is the foundation of those inferences, which, as we have observed, form the evidence arising from experience.
If the consequences have followed the object constantly, and the observations of this constant connexion have been sufficiently numerous; the evidence, produced by experience, amounts to a moral certainty. If the connexion has been frequent, but not entirely uniform; the evidence amounts only to probability; and is more or less probable, in proportion as the connexions have been more or less frequent. That cork will float on the surface of water, and that iron will sink in it, are truths, of which we are morally certain; because these inferences are founded on connexions both sufficiently numerous and sufficiently uniform. We are not morally certain whether oak timber will float or sink in water; because, in some circumstances, it sinks, and, in other circumstances, it floats. But, if the circumstances uniformly attending the contrary effects are specified; then, under that specification, we can tell, with moral certainty, whether the timber will sink or swim.
This evidence, by which we infer what the future will be from what the past has been, is the effect of an original principle, implanted in the human mind. This principle appears in our most early infancy. The child, who is burnt, is soon taught to dread the fire. A great and necessary part of our knowledge is drawn from this source, before we are able to exercise the reasoning faculty. It is an instinctive prescience of the operations of nature, very similar to that prescience of human actions, by which we are made to rely upon the testimony of our fellow men. Without the latter, we could not receive information, by the means of language, concerning the sentiments of those, with whom we converse: without the former, we could not, by means of experience, acquire knowledge concerning the operations of nature. When we arrive at the years of discretion and are capable of exercising our reasoning power, this instinctive principle retains in us all its force; but we become more cautious in its application. We observe, with more accuracy, the circumstances attending the appearance of the object and its consequences, and learn to distinguish those which are regularly, from those which are only occasionally, to be discovered.
On this principle is built the whole stupendous fabrick of natural philosophy; and if this principle were removed, that fabrick, solid and strong as it is, would tumble in ruins to the very foundation. “That natural effects of the same kind are produced by the same causes,” is a first principle laid down by the great Newton, as one of his laws of philosophizing.
On the same principle depends the science of politicks, which draws its rules from what we know by experience concerning the conduct and character of men. From this experience we conclude, that they will bestow some care and attention on themselves, on their families, and on their friends; that, without some temptation, they will not injure one another; that, on certain occasions, they will discover gratitude, and, on others, resentment. In the science of politicks, we consider not so much what man ought to be, as what he really is; and from thence we make inferences concerning the part which he will probably act, in the different circumstances and situations, in which he may be placed. From such considerations we reason concerning the causes and consequences of different governments, customs, and laws. If man were either better or worse, more perfect or less perfect, than he is, a proportioned difference ought to be adopted in the systems formed, and the provisions made, for the regulation of his conduct.
The same principle is the criterion, at least, if it is not the foundation, of all moral reasoning whatever. It is the basis of prudence in the management of the affairs and business of human life. Scarcely can a plan be formed, whether of a publick or even of a more private nature, which depends solely on the behaviour of him who forms it: it must depend also on the behaviour of others; and must proceed upon the supposition, that those others will, in certain given circumstances, act a certain given part.
XI. Evidence arises from analogy, as well as from experience. The evidence of analogy is, indeed, nothing more than a vague experience, founded on some remote similitude. When the circulation of the blood in one human body was verified by experiment, this was certainly a sufficient evidence, from experience, that, in every other human body, the blood, in like manner, circulates. When we reflect on the strong resemblance which, in many particulars, the bodies of some other animals, quadrupeds, for instance, bear to the human body; and especially on that resemblance, which is discovered in the blood vessels, in the blood itself, and in the pulsation of the heart and arteries; we discover evidence, from analogy, of the circulation of the blood in those other animals; for instance, in quadrupeds. In this application of the experiment, however, the evidence is unquestionably weaker than in that, which is transferred from one to another man. Yet, when the analogies are numerous, and evidence of a closer and more direct application is not to be obtained, the evidence from analogy is far from being without its operation and its use.
Its use, we acknowledge, appears more in answering objections, than in furnishing direct proofs. It may, for this reason, be considered as the defensive rather than the offensive armour of a speaker. It rarely refutes; but it repels refutations: it cannot kill the enemy; but it wards offhis blows.
Much of the evidence in natural philosophy rises not higher, than that which is derived from analogy. We learn from experience, that there is a certain gradation in the scale of certain animals: we conclude from analogy, that this gradation extends farther than our experience reaches. Upon the foundation of analogy, the systems of ancient philosophy concerning the material world were entirely built. My Lord Bacon first delineated, and, in some instances, applied the strict and severe method of induction from experiment. Since his time, this has been employed in natural philosophy, with the greatest success.
To the common lawyer, the evidence of analogy is a subject of very great extent and importance.
In speaking of judicial decisions, my Lord Chief Justice Hale distinguishes them into two kinds: one consists of such as have their reasons singly in the laws and customs of the kingdom. In these the law gives an express decision; and the judge is only the instrument, which pronounces it. The other kind consists of decisions, which are framed and deduced, as his Lordship says, by way of deduction and illation upon those laws.
A competition between opposite analogies is the principle, into which a very great number of legal controversies may be justly resolved. When a particular point of law has been once directly adjudged; the adjudication is deemed decisive as to that question, and to every other which, in all its circumstances, corresponds completely with that question. But questions arise, which resemble the decided question only in some parts, in certain circumstances, and in certain indirect aspects; and which, it is contended, bear, in other aspects, in other circumstances, and in other parts, a much closer and stronger resemblance to other cases, which have been likewise adjudged. To stating, to comparing, and to enforcing those opposite analogies, on the opposite sides, much of the business of the bar is appropriated. In discerning the force and extent of the distinctions which are taken; in framing an adjudication in such a manner, as to preserve unimpeached the various former decisions, from which the contending analogies have been drawn; or, if all cannot be so preserved, yet so as that the weaker may be given up to the stronger—in this, much of the wisdom and sagacity of the court are employed and displayed.
The late celebrated dispute concerning literary property will place this subject, and the remarks which have been made concerning it, in a very striking point of view. On one hand, the time which an author employs, the pains which he takes, and the industry which he exerts, in the production of his literary performance, bear the nearest and the most marked resemblance to the industry exerted, to the pains taken, and to the time employed, in the acquisition of property of every other kind. This resemblance, so striking and so strong, between the labour bestowed in this, and the labour bestowed in any other way, justifies the inference and the claim, that he, who bestowed the labour in this way, should be entitled to the same perpetual, assignable, and exclusive right in the production of the labour thus bestowed; and should receive the same protection of the law in the enjoyment of this perpetual, assignable, and exclusive right, as is given and decreed to those who bestow their labour in any other manner. This is the analogy on one side. On the other hand, a book, considered with respect to the author’s right in it, has a peculiar resemblance to any other invention of art; the discovery, for instance, of a new medicine, or of a new machine. Now, in these instances, unless an exclusive right is secured to the inventor by a patent, the law permits the machine or medicine to be used or imitated. Why should not the same liberty be enjoyed in the publication and sale of books? This is the analogy on the other side.
XII. Evidence arises from judgment. By judgment I here mean that power of the mind, which decides upon selfevident truths. This is a much more extensive power than is generally imagined. It is, itself, a distinct and original source of evidence; and its jurisdiction is exercised in all the other kinds of evidence, which have been already enumerated.
“There are conceptions, which ought to be referred to the faculty of judgment as their source: because, if we had not that faculty, they could not enter into our minds; and to those who have that faculty, and are capable of reflecting on its operations, they are obvious and familiar.
“Among these, we may reckon the conception of judgment itself; the notions of a proposition, of its subject, predicate, and copula; of affirmation and negation; of true and false; of knowledge, belief, disbelief, opinion, assent, evidence. From no source could we acquire these conceptions, but from reflecting on our judgments. Relations of things make one great class of our notions or ideas; and we cannot have the idea of any relation without some exercise of judgment.”y
By our senses, we have certain sensations and perceptions. But to furnish us with these, is not the only, nor is it, indeed, the principal office of our senses. They are powers, by which we judge, as well as feel and perceive. A man, who has become blind, may, nevertheless, retain very distinct conceptions of the several colours; but he cannot, any longer, judge concerning colours; because he has lost the sense, the immediate operation of which is necessary in order to enable him to form such judgment. By our ears, we have the ideas of sounds of different kinds, such as acute and grave, soft and loud. But this sense enables us not only to hear, but to judge of what we hear. We perceive one sound to be loud, another to be soft. When we hear more sounds than one, we perceive and judge that some are concords, and that others are discords. These are judgments of the senses.z
Judgment exercises its power concerning the evidence of consciousness, as well as concerning the evidence of the senses. The man, who is conscious of an object, believes that it exists, and is what he is conscious it is; not is it in his power to avoid such judgment. Whether judgment ought to be called a necessary concomitant, or rather an ingredient, of these operations of the mind, it is not material to inquire; but one thing is certain; they are accompanied with a determination that something is true or false, and with a consequent belief. This determination is not simple apprehension; it is not reasoning; it is a mental affirmation or negation; it may be expressed by a proposition affirmative or negative; and it is accompanied with the firmest belief. These are the characteristicks of judgment.a This name is sometimes given to every determination of the mind concerning what is true or what is false.b Under this head, I apply it, and confine it to that degree of judgment, which is commensurate with what is sometimes called common sense: for, in truth, common sense means common judgment.c
Further; judgment is implied in every operation of taste. When we say a statue or a poem is beautiful; we affirm something concerning that poem or statue: but every affirmation or denial expresses judgment. Our judgment of beauty is not, indeed, dry and uninteresting, like that of a mathematical truth. It is accompanied with an agreeable feeling or emotion, for which we have no appropriated term. It is called the sense of beauty.
Judgment is exerted also in the operations of our moral sense. When we exercise our moral powers concerning our own actions or those of others, we judge as well as feel. We accuse and excuse; we acquit and condemn, we assent and dissent; we believe and disbelieve. These are all acts of judgment.d
In short, we judge of the qualities of bodies by our external senses; we judge concerning what passes in our minds by our consciousness; we judge concerning beauty and deformity by our taste; we judge concerning virtue and vice by our moral sense: but, in all these cases, we judge; in most of them, our judgment is accompanied by feeling. Judgment accompanied by feeling forms that complex operation of the mind, which is denominated sentiment.
This train of investigation might be carried much farther; but, at present, we stop here.
Judgment, in the sense in which we here use it, is an original and an important source of knowledge, common to all men; and, for this reason, is frequently denominated common sense, as has been already intimated. In different persons, it prevails, indeed, with different degrees of strength; but none, except idiots, have been found originally and totally without it.
The laws, we believe, of every civilized nation distinguish between those who are, and those who are not, endowed with this gift of heaven. This gift is easily discerned by its effects, in the actions, in the discourse, and even in the looks of a man. When it is made a question, whether one is or is not possessed of this power, the courts of justice can usually determine the question with much clearness and certainty.
The same degree of understanding, which enables one to act with common prudence in the business of life, enables him also to discover self-evident truths concerning matters, of which he has distinct apprehension.
Selfevident truths, of every kind, and in every art and science, are the objects of that faculty, which is now under our consideration. Such truths, or axioms, as they are distinguished by way of excellence, are the foundation of all mathematical knowledge. There are axioms, too, in matters of taste. The fundamental rules of poetry, and painting, and eloquence, have always been, and, we may venture to add, always will be the same. The science of morals is also founded on axioms; many of which are accompanied with intuitive evidence, not less strong than that which is discovered in the axioms of mathematicks. Mathematical axioms can never extend their influence beyond the limits of abstract knowledge. But with axioms in other branches of science, the whole business of human life is closely and strongly connected.
XIII. Evidence arises from reasoning.
One observation, which I made concerning judgment, may be made, with the same propriety, concerning reasoning. It is, itself, a distinct and original source of evidence; and its jurisdiction is exercised also in evidence of every other kind. This suggests a very probable account why reason has been considered by many philosophers as the only source and criterion of evidence: for the powers both of judgment and of reasoning have been frequently blended under the name of reason.
As the conception of judgment should be referred to the faculty of judgment; so the conception of reasoning should be referred to the reasoning faculty, as its source. The ideas of demonstration, of probability, and of all the different modes of reasoning, take their origin from the faculty of reason. Without this faculty, we could not be possessed of those ideas.
The power of reasoning is somewhat allied to the power of judging. Reasoning, as well as judgment, must be true or false: both are accompanied with assent or belief. There is, however, a very material distinction between them. Reasoning is the process, by which we pass from one truth to another as a conclusion from it. In all reasoning, there must be a proposition inferred, and one or more, from which the inference is drawn. The proposition inferred is called the conclusion: the name of premises is given to the proposition or propositions, from which the conclusion is inferred. When a chain of reasoning consists of many links, it is easily distinguished from judgment. But when the conclusion is connected with the premises by a single link, the distinction becomes less obvious; and the process is sometimes called by one name; sometimes by the other.
In a series of legitimate reasoning, the evidence of every step should be immediately discernible to those who have a distinct comprehension of the premises and the conclusion.
The evidence, which arises from reasoning, is divided into two species—demonstrative and moral. The nature, the difference, and the uses of these two species of evidence, it is of great importance clearly and fully to understand.
Demonstrative evidence has for its subject abstract and necessary truths, or the unchangeable relations of ideas. Moral evidence has for its subject the real but contingent truths and connexions, which take place among things actually existing. Abstract truths have no respect to time or place; they are universally and eternally the same.
If these observations are just—and they are agreeable to the sentiments of those who have written most accurately on this subject—we may see the impropriety of my Lord Chief Baron Gilbert’s remark, when he says, that “all demonstration is founded on the view of a man’s proper senses.” From hence we may see likewise the inaccuracy of Sir William Blackstone’s description of evidence, when he mentions it as demonstrating the very fact in issue. The objects of our senses are objects of moral, but not of demonstrative evidence.
By writers on the civil law, the scientifick distinction, upon this subject, is accurately observed. Truths alone, say they,e which depend on abstract principles, are susceptible of demonstrative evidence: truths, that depend on matters of fact, however complete may be the evidence by which they are established, can never become demonstrative.
In a series of demonstrative evidence, the inference, in every step, is necessary; for it is impossible that, from the premises, the conclusion should not flow. In a series of moral evidence, the inference drawn in the several steps is not necessary; nor is it impossible that the premises should be true, while the conclusion drawn from them is false.
In demonstrative evidence, there are no degrees: one demonstration may be more easily comprehended, but it cannot be stronger than another. Every necessary truth leaves no possibility of its being false. In moral evidence, we rise, by an insensible gradation, from possibility to probability, and from probability to the highest degree of moral certainty.
In moral evidence, there not only may be, but there generally is, contrariety of proofs: in demonstrative evidence, no such contrariety can take place. If one demonstration can be refuted, it must be by another demonstration: but to suppose that two contrary demonstrations can exist, is to suppose that the same proposition is both true and false: which is manifestly absurd. With regard to moral evidence, there is, for the most part, real evidence on both sides. On both sides, contrary presumptions, contrary testimonies, contrary experiences must be balanced. The probability, on the whole, is, consequently, in the proportion, in which the evidence on one side preponderates over the evidence on the other side.
Demonstrative evidence is simple: in it there is only one coherent series, every part of which depends on what precedes, and suspends what follows. In demonstrative reasoning, therefore, one demonstration is equal to a thousand. To add a second would be a tautology in this kind of evidence. A second, it is true, is sometimes employed; but it is employed as an exercise of ingenuity, not as an additional proof. Moral evidence is generally complicated: it depends not upon any one argument, but upon many independent proofs, which, however, combine their strength, and draw on the same conclusion.
In point of authority, demonstrative evidence is superiour: moral evidence is superiour in point of importance. By the former, the understanding is enlightened, and many of the elegant and useful arts are improved. By the latter, society is supported; and the usual but indispensable affairs of life are regulated. To the acquisitions made by the latter, we owe the knowledge of almost every thing, which distinguishes the man from the child.
XIV. Evidence arises from calculations concerning chances. This kind of evidence does not occur very frequently. I take particular notice of it, because it is of much importance in some commercial transactions; especially in those relating to ensurances.
Chance furnishes materials for calculation, only when we know the remote cause, which will produce some one event of a given number; but know not the immediate cause, which will determine in favour of any one particular event of that given number, in preference to any other particular event. In calculating chances, it is necessary that a great number of instances be taken into consideration; that the greatest exactness and impartiality be used in collecting them on the opposite sides; and that there be no peculiarity in any of them, which would render it improper for becoming a part of the basis of a general conclusion.
I have now finished the long, I will not say, the complete enumeration of the different sources and kinds of evidence. Between several of them something will be found to be analogous. But, upon the most careful review, it will, I think, appear, that no one of them can be resolved into any other. Hence the propriety of considering and treating them separately and distinctly. Much advantage will, I believe, be reaped from acquiring and exercising a habit of considering them in this separate and distinct manner. For this purpose, it will be proper, when a trial of much variety and importance is perused or heard, to digest, at leisure, those things which are given or which appear in evidence, and refer them to their several sources and kinds. After this has been done, it will be of great use carefully to arrange the different sorts and parts of the evidence, and compare them together in point of solidity, clearness, and force. A habit of analyzing, combining, methodising, and balancing evidence, in this manner, will be a constant and a valuable resource in the practice of the law. Every one, who has observed or experienced that practice, must be sensible, that a lawyer’s time and attention are more employed, and his talents are more severely tried, by questions and debates on evidence, than by those on all the other titles of the law, various, intricate, and extensive as they are.
To wield the weapons of evidence forms an important article in a lawyer’s art. To wield them skilfully evinces a good head: to wield them honestly as well as skilfully evinces, at once, a good head and a good heart; and reflects equal honour on the profession and on the man.
I have, on this occasion, said nothing concerning the artificial rules of evidence, which are framed by the law for convenience in courts of justice. These, unquestionably, ought to be studied and known. Concerning these, much learning may be found in the several law books. Particular rules may be seen, adapted to particular cases. An intimate acquaintance with those rules will be of great practical utility in what I may call the retail business of the law; a kind of business by no means to be neglected; a kind of business, however, which should not be suffered to usurp the place of what is far more essential—the study and the practice too of the law, as a science founded on principle, and on the nature of man. The powers and the operations of the human mind are the native and original fountains of evidence. Gaudy, but scanty and temporary cascades may sometimes be supplied by art. But the natural springs alone can furnish a constant and an abundant supply. He, too, who is in full possession of these, can, with the greatest facility, and to the greatest advantage, display their streams, on proper occasions, in all the forms, and with all the ornaments, suggested and prepared by the most artificial contrivances.
It is generally supposed—and, indeed, our law books, so far as I recollect, go upon the supposition—that the evidence, which influences a court and jury, depends altogether upon what is said by the witnesses, or read from the papers. This, however, is very far from being the case. Much depends on the pleadings of the counsel. His pleadings depend much on a masterly knowledge and management of the principles of evidence. Evidence is the foundation of conviction: conviction is the foundation of persuasion: to convey persuasion is the end of pleading. From the principles of evidence, therefore, must be drawn that train and tenour of reasoning, which will accomplish the aim of the pleader, and produce the perfection of his art.
A rich and an immense prospect opens to my view; but I cannot now attempt to describe it.
THE END OF THE FIRST PART.
Lectures on Law.
[a. ]3. Bl. Com. 330.
[b. ]Eden 164. 165.
[c. ]1. Ins. 283.
[1. ]Proofs ought to be evident; that is, they ought to be plain and easily understood.
[d. ]3. Bl. Com. 367.
[e. ]Bec. c. 14. p. 39.
[f. ]We give the name of evidence to a clear and distinct view of things and of their relations. 1. Burl. 8.
[g. ]Locke on Und. b. 4. c. 1.
[h. ]Id. b. 4. c. 3.
[i. ]Locke on Und. b. 2. c. 19. s. 4.
[k. ]Reid’s Inq. 437. 438.
[l. ]Reid’s Ess. Int. 552.
[2. ]Who distinguishes well, teaches well.
[m. ]Luke XXIV. 39. 40.
[n. ]John XX. 27.
[o. ]Cic. de Orat. 1. 3. c. 50.
[p. ]To this the evidence arising from the similitude of hands may be referred.
[q. ]Consult Gib. Rom. Emp. c. 44. vol. 8. p. 22. and the authorities cited.
[r. ]Gilb. Ev. 4.
[s. ]Eden’s Pen. Law. 169. 170.
[t. ]Parum est jus nosse, says Justinian in his institutes (l. 1. t. 2. s. 12.) si personae, quarum causa constitutum est, ignorentur. It is to little purpose to know the law, if we are ignorant concerning the persons, for whose sake the law was constituted.
[u. ]Ante vol. 1. p. 627.
[v. ]2. Hume’s Ess. 119. 120.
[3. ]It is necessary to the learner to believe.
[4. ]Any expert in his own art is credible therein.
[w. ]Reid. Ess. Int. 308.
[x. ]Reid’s Ess. Int. 310.
[y. ]Reid. Ess. Int. 500, 501.
[z. ]Reid Ess. Act. 237, 239.
[a. ]Reid. Ess. Int. 501, 503.
[b. ]Id. 504, 533. 534.
[c. ]Id. 523, 530, 531.
[d. ]Reid’s Ess. Act. 474.
[e. ]Encyc. Tit. Jurisprudence. vol. part 2. p. 752. (French.)