To an English reader—to him at least who loves his country sufficiently well to desire that what is defective in her institutions should be amended, and, in order to its being amended, should be known—these criticisms will not be the least interesting portion of the work. As is usual in the critical and controversial part of Mr. The occasional obscurity, of which his style is accused, but which in reality is almost confined to the more intricate of the theoretical discussions, is the less to be regretted, as the nature of the subject is of itself sufficient to render the work a sealed letter to those who read merely for amusement.
They who really desire to possess useful knowledge do not grudge the trouble necessary to acquire it. The task of the Editor has chiefly consisted in collating the manuscripts. Bentham had gone over the whole of the field several times, at intervals of some length from one another, with little reference on each occasion to what he had written on the subject at the former times. Hence, it was often found that the same topic had been treated two and even three times; and it became necessary for the Editor to determine, not only which of the manuscripts should supply the basis of the chapter, but likewise how great a portion of each of those which were laid aside might usefully be incorporated with that which was retained.
The more recent of the manuscripts has in most cases been adopted as the ground-work, being generally that in which the subjects were treated most comprehensively and systematically; while the earlier ones often contained thoughts and illustrations of considerable value, with passages, and sometimes whole pages, written with great spirit and pungency. Where these could conveniently be substituted for the corresponding passages in the manuscript chosen as the basis of the work, the substitution has been made. Where this was thought inexpedient, either on account of the merit of the passages which would thus have been superseded, or because their omission would have broken the thread of the discussion, the Editor not thinking himself justified in suppressing anything which appeared to him to be valuable in the original has added the passage which was first written, instead of substituting it for that which was composed more recently.
From this cause it may occasionally be found in perusing the work, that the same ideas have been introduced more than once, in different dresses. But the Editor hopes that this will never prove to be the case, except where either the merit of both passages, or the manner in which one of them was interwoven with the matter preceding and following it, constituted a sufficient motive for retaining both.
The plan of the work having been altered and enlarged at different times, and having ultimately extended to a much wider range of subjects than were included in the original design, it has not unfrequently happened that the same subject has been discussed incidentally in one book, which was afterwards treated directly in another. In some of these cases the incidental discussion has been omitted, as being no longer necessary; but in others it contained important matter, which was not to be found in the direct and more methodical one, and which, from the plan on which the latter was composed, it was not found possible to introduce in it.
In such cases both discussions have usually been retained. The work, as has been already observed, not having been written consecutively, but part at one time, and part at another, and having always been regarded by the author as an unfinished work, it has sometimes, though but rarely occurred, that while one topic was treated several times over, another, of perhaps equal importance, was not treated at all. Such deficiencies it was the wish of Mr. Bentham that the Editor should endeavour to supply.
In compliance with this wish, some cases of the exclusion of evidence in English law, which were not noticed by Mr. Bentham, have been stated and commented upon in the last chapter of the Edition: current; Page: [ 7 ] book on Makeshift Evidence, and in two chapters of the sixth part of the Book on Exclusion. For the distribution of the work in Chapters and Sections, the Editor alone is responsible. The division into Books is all that belongs to the Author.
The original manuscripts contained, under the title of Causes of the Exclusion of Evidence, a treatise on the principal defects of the English system of Technical Procedure. This extensive subject may appear not to be so intimately connected with the more limited design of a work which professes to treat of Judicial Evidence only, as to entitle a dissertation upon it to a place in these pages. On examination, however, the parenthetical treatise was thought to be not only so instructive, but so full of point and vivacity, that its publication could not but be acceptable to the readers of the present work: and the additional bulk, in a work which already extended beyond four volumes, was not deemed a preponderant objection, especially as the dissertation, from the liveliness and poignancy with which it exposes established absurdities, gives in some degree a relief to the comparative abstruseness of some other parts of the work.
It stands as the eighth in order of the ten books into which the work is divided.
A few of the vices in the detail of English law, which are complained of both in Edition: current; Page: [ 8 ] this book and in other parts of the work, have been either wholly or partially remedied by Mr. Thus, for instance: in one of the earlier chapters of Book VIII, the reader will find an exposure of one of those contrivances for making delay which were formerly within the power of the dishonest suitor; I mean that of groundless writs of error.
Peel has partially and but partially taken away this resource, 7 and the consequence, as we are informed, has been, not that improper delay has not been obtained, but that it has been obtained by way of demurrer, 8 or by joining issue and proceeding to trial; either of which expedients though perhaps somewhat less efficacious to the party seeking delay are equally, if not more, oppressive in the shape of expense to the party against whom they are employed, than the proceedings in error.
The truth is, that, bad as the English system of jurisprudence is, its parts harmonize tolerably well together; and if one part, however bad, be taken away, while another part is left standing, the arrangement which is substituted for it may, for the time, do more harm by its imperfect adaptation to the remainder of the old system, than the removal of the abuse can do good. There are numerous cases in which a gradual change is preferable to a sudden one; because its immediate consequences can be more distinctly foreseen. But in this case, the consequences even of a sudden change can be much more easily foreseen than those of a gradual one.
Whatever difficulties men might at first experience though the difficulties which they would experience have been infinitely exaggerated in adapting their conduct to a system of procedure entirely founded on rational, and therefore on new, principles; none are more ready than lawyers themselves to admit that still greater difficulty would be felt in adapting it to a system partly rational and partly technical. For such a thorough reform, or rather re-construction of our laws, the public mind is not yet entirely prepared. But it is rapidly advancing to such a state of preparation.
It is now no longer considered as a mark of disaffection towards the state, and hostility to social order and to law in general, to express an opinion that the existing law is defective, and requires a radical reform. Thus much Mr. A new spirit is rising in the profession itself.
Of this the recent work of Mr. Humphreys, obtaining, as it has done, so great circulation and celebrity, is one of the most gratifying indications. Bentham has so instructively expounded, but, in part at least, to the extreme difficulty which a mind conversant only with one set of securities feels in conceiving that society can possibly be held together by any other.
It has appeared to the Editor superfluous to add one word in recommendation of Edition: current; Page: [ 10 ] the work. The vast importance of the subject, which is obvious to all men, and the consideration that it has now for the first time been treated philosophically, and by such a master, contain in themselves so many incitements of curiosity to every liberal mind, to every mind which regards knowledge on important subjects as an object of desire, that volumes might be written without adding to their force. It is due, however, to himself to state, that the tone of some of the passages in question would have been felt by him, even then, to be unbecoming, as proceeding from himself individually: he wrote them in the character of an anonymous Editor of Mr.
Bentham admissible, than what would be decorous from a person of his years and his limited knowledge and experience. The exclusive rules relative to evidence belong to the adjective branch of the law: the effect of them is to frustrate and disappoint the expectations raised by the substantive branch. The maintenance of them has this effect perpetually: the Edition: current; Page: [ 11 ] abolition of them, even though by the judicial power, would have no such effect, but the contrary.
The terms, adjective and substantive, applied to law, are intended to mark an important distinction, first pointed out to notice by this author; 16 viz. The former are as it were the laws themselves; the latter are the prescriptions for carrying the former into execution. They are, in short, the rules of procedure.
The former Mr. Bentham calls the substantive law, the latter the adjective. I, pp. The difference, in respect of evidence, between questions of mathematics and questions of purely experimental science, of chemistry, for example, is merely this; that the evidence applicable to the former, is that description of evidence which is founded upon general reasoning; while the evidence applicable to the latter, is evidence of that description which is derived immediately from matters of fact, presenting themselves to our senses. To point out the peculiar properties of these two kinds of evidence, and to distinguish them from one another, belongs rather to a treatise on logic than to a work like the present; which, considering evidence almost exclusively in regard to its connection with judicature, excludes all general speculations which have no immediate bearing upon that subject.
The state of the facts, as well as the state of the law, being such as to confer on the plaintiff a title to such or such a right, or to satisfaction on the score of such or such a wrong; if evidence, and that of a sufficient degree of probative force to satisfy the judge, of the existence of the necessary matter of fact, be wanting; the law, in that instance, fails of receiving its due execution and effect; and, according to the nature of the case, injustice in the shape of non-collation of rights where due, non-administration of compensation where due, or non-administration of punishment where due, is the consequence.
By collation of rights, Mr. Bentham means that species of service which the judge renders to any person by putting him in possession of a certain right. Non-collation of rights has place when that service is not rendered,—when the person in question is not put in possession of the right. Collative facts are also sometimes called by Mr. Bentham investitive facts. There are many other judicial purposes for which it is necessary that things and persons should be forthcoming, besides that of being presented to the judge in the character of sources of evidence.
The subject of Forthcomingness, therefore, belongs to the general subject of Procedure. And as the arrangements necessary to secure the forthcomingness of persons and things to serve as sources of evidence, do not differ from those which are necessary to secure their forthcomingness for any other judicial purpose, they do not properly form part of the subject of the present work. Of evidence sine lite. An example of this is, where, to enable a man to receive money from an officer employed in the payment of public money, evidence shewing his title must be produced. Here, as elsewhere, the object is to guard against deception in the most effectual way possible, without preponderant or unnecessary vexation, expense, and delay.
On this subject a few pages had been written by Mr. Bentham, but he had never completed the enquiry, and the manuscript in the hands of the Editor was so incomplete that he has thought it best to suppress it. Bentham has suggested for the measurement of degrees of persuasion and probative force.
It is fair that the reader should have the means of judging for himself, what degree of validity these objections possess. I quote from a recently published and very well executed translation of Mr. I even think, that it belongs only to intelligences superior to ourselves, or at least to the great mass of mankind.
I make the experiment at this very moment; I try to recollect who told me a certain fact: I hesitate, I collect all the circumstances, I think it was A rather than B: but should I place my belief at No. I cannot tell. It serves no purpose, I think, to enquire after the degrees of doubt. But these different states of belief, which, in my opinion, it is difficult to express in numbers, display themselves to the eyes of the judge by other signs.
The readiness of the witness, the distinctness and certainty of his answers, the agreement of all the circumstances of his story with each other,—it is this which shows the confidence of the witness in himself. Hesitation, a painful searching for the details, successive connexions of his own testimony,—it is this which announces a witness who is not at the maximum of certainty. It belongs to the judge to appreciate these differences, rather than to the witness himself, who would be greatly embarrassed if he had to fix the numerical amount of his own belief.
Were this scale adopted, I should be apprehensive that the authority of the testimony would often be inversely as the wisdom of the witnesses. Reserved men—men who knew what doubt is—would, in many cases, place themselves at inferior degrees, rather than at the highest; while those of a positive and presumptuous disposition, above all, passionate men, would almost believe they were doing themselves an injury, if they did not take their station immediately at the highest point. The wisest thus leaning to a diminution, and the least wise to an augmentation, of their respective influence on the judge, the scale might produce an effect contrary to what the author expects from it.
The comparison with wagers and insurances does not seem to me to be applicable. Testimony turns on past events; wagers turn on future events: as a witness, I know, I believe, or I doubt; as a wagerer, I know nothing, but I conjecture, I calculate probabilities: my rashness can injure nobody but myself; and if a wagerer feels that he has gone too far, he often diminishes the chances of loss by betting on the other side.
It appears to me, that, in judicial matters, the true security depends on the degree in which the judges are acquainted with the nature of evidence, the appreciation of testimony, and the different degrees of proving power. These principles put a balance into their hands, in which witnesses can be weighed much more accurately than if they were allowed to assign their own value; and even if the scale of the degrees of belief were adopted, it would still be necessary to leave judges the power of appreciating the intelligence and morality of the witnesses, in order to estimate the confidence due to the numerical point of belief at which they have placed their testimony.
These are the difficulties which have presented themselves to me, in meditating on this new method. On these observations of M. Dumont it may, in the first place, be remarked that, if applicable at all, they are applicable only to the use of the scale by the witness, not to the use of it by the judge, which latter use, however, is perhaps the more important of the two. In the next place, even as regards the witness, I doubt whether any great weight should be attached to the objections.
For, first, what almost all of them seem to imply is, that, because we cannot in all cases attain the degree of exactness which is desirable, therefore we ought to neglect the means of attaining that degree of exactness which is in our power. The witness who does not know the degree of his persuasion,—the witness to whom the scale would be useless, will not call for it: the judge will at all events have the same means of appreciating his testimony, as he has now, and will not be the more likely to be deceived by a witness who does not use the scale, because it has happened to him to have received the testimony of one who does.
Secondly, the most formidable in appearance of all M. Dumont intended. The wise, says he, will place their degree of persuasion lower than they ought, the foolish, higher than they ought: the effect therefore of the scale is to give greater power to the foolish than they otherwise would have, and less power to the wise. But if this be true, what does it prove? It is not the scale Edition: current; Page: [ 15 ] which does the mischief, if mischief there be.
There are but two sorts of witnesses, the wise and the foolish: grant to them the privilege of expressing doubt, or any degree of persuasion short of the highest, and the foolish, says M. Dumont, will make no use of the privilege, the wise will make a bad use. But if so, would it not be better to withhold the privilege altogether? Is it the scale which makes all the difference? The truth seems to me to be, that the scale will neither add to the power of the foolish witness, nor unduly diminish that of the wise one. It will not add to the power of the foolish witness, because he cannot place his persuasion higher than the highest point in the scale; and this is no more than he could do without it.
It will not unduly diminish the power of the wise witness; because the wise witness will know tolerably well what degree of persuasion he has grounds for, and will therefore know tolerably well whereabouts to place himself in the scale. That he would be likely to place himself too low, seems to me a mere assumption. The wiser a man becomes, the more certainly will he doubt, where evidence is insufficient, and scepticism justifiable; but as his wisdom increases, so also will his confidence increase, in all those cases in which there is sufficient evidence to warrant a positive conclusion.
When, by a consideration of any kind, a man is determined to maintain a proposition of any kind, and finds it not tenable on the ground of reason and experience; to conceal his distress, he has recourse to some phrase, in and by which the truth of the proposition is, somehow or other, assumed.
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Thus, in the moral department of science; having a set of obligations which they were determined to impose upon mankind, or such part of it at any rate as they should succeed in engaging by any means to submit to the yoke; phrases, in no small variety and abundance, have been invented by various persons, for the purpose of giving force to their respective wills, and thus performing for their accommodation the functions of a law. Law of nations, moral sense, common sense, understanding, rule of right, fitness of things, law of reason, right reason, natural justice, natural equity, good order, truth, will of God, repugnancy to nature.
An appropriate name for this class of phrases would be covers for dogmatism; an appellation indicating the property common to them all, of serving as cloaks for ipse-dixitism, for that fallacy which has been termed by the logicians petitio principii. To say that an act is right or wrong, because it is conformable or disconformable to the law of nature, is merely to say that it is right or wrong because it is Edition: current; Page: [ 16 ] conformable or disconformable to right or wrong.
What law has nature? What is nature itself? Is it a poetical and imaginary personage, which I suppose nobody ever seriously believed to have any real existence? Is it the physical and psychological world, considered as a whole? To say, in like manner, that an act is right or wrong because it is conformable or disconformable to conscience, or moral sense, is to say that it is right or wrong, because I, the speaker, approve or disapprove of it. For what is conscience, or moral sense, except my own feeling of approbation or disapprobation?
By what other test am I to determine what is conformable to conscience, what is conformable to the moral sense? The moralists, or pretended moralists, who make use of these words, may be said to belong to the dogmatical school of ethics: since they give their own approbation or disapprobation, as a reason for itself, and a standard for the approbation or disapprobation of every one else. This appellation will distinguish them from those who think that morality is not the province of dogmatism, but of reason, and that propositions in ethics need proof, as much as propositions in mathematics.
No, surely: yet here is an improbability of a million to one: and yet you believe it without difficulty. If this ratio does not import sufficient improbability, instead of millions take billions: or, instead of billions, trillions, and so on. Well then, since we must stop somewhere, we will stop at a trillion. This being the nominal ratio, what is the consequence? Answer—That the real ratio is that of 1 to 1. One little circumstance of the case had escaped the observation of the mathematical divine. Of the trillion and one, that some one ticket should gain the prize, is matter of necessity: and of them all, every one has exactly as good a chance as every other.
Mathematicians, it has been observed, so fond are they of Edition: current; Page: [ 17 ] making display of the hard-earned skill acquired by them, in the management of their instrument are apt not to be so scrupulous as might be wished in the examination of the correctness and completeness of the data which they assume, and on which they operate. When Dr. Price affirms that we continually believe, on the slightest possible evidence, things in the highest degree improbable, 20 he confounds two ideas, which are totally distinct from one another, and would be seen to be such, did they not unfortunately happen to be called by the same name: these are, improbability in the ordinary sense, and mathematical improbability.
In the latter of these senses there is scarcely any event which is not improbable: in the former, the only improbable events are extraordinary ones. In the language of common life, an improbable event means an event which is disconformable to the ordinary course of nature. In the language of mathematics, the word improbability has a totally different meaning. In this sense, almost all events which ever happened are improbable: not only those events which are disconformable, but even those events which are in the highest degree conformable, to the course, and even to the most ordinary course, of nature.
A corn merchant goes into a granary, and takes up a handful of grain as a sample; there are millions of grains in the granary, which had an equal chance of being taken up. According to Dr. Price, events which happen daily, and in every corner, are extraordinary, and highly improbable. The chances were infinitely great against my placing my foot, when I rise from my chair, on the precise spot where I have placed it; going on, in this manner, from one example to another, nothing can happen that is not infinitely improbable.
True it is, in all these cases as well as in that of the lottery, supposed by Dr. Price 21 there is what would be called, in the language of the doctrine of chances, an improbability, in the ratio of as many as you please to one: yet it would obviously be absurd to make this a reason for refusing our belief to the alleged event; and why? Because, though it is in one sense an improbable event, it is not an Edition: current; Page: [ 18 ] extraordinary event; there is not in the case so much as a shadow of disconformity even to the most ordinary course of nature.
Mathematically improbable events happen every moment: experience affords us no reason for refusing our belief to them. Extraordinary events happen rarely: and as respects them, consequently, experience does afford a valid reason for doubt, or for disbelief. The only question in any such case is, which of two things would be most disconformable to the ordinary course of nature; that the event in question should have happened; or that the witnesses by whom its occurrence is affirmed, should have been deceivers or deceived.
The word dyslogistic is employed by Mr. Bentham in the sense of vituperative; as opposed to eulogistic. For instance Vol. Instances in which particular classes have joined in making one moral rule for their conduct among themselves, another and a totally different rule for their conduct towards all other persons, are not unfrequent. Such is uniformly found to be the case, where particular classes are possessed of so much power, as to be in a great degree independent of the good or ill opinion of the community at large. In the moral code of the West India slaveholders, many acts which would be among the worst of crimes if committed against a white man, are perfectly innocent when the subject of them is a negro.
For white and black, substitute Mahomedan and Christian, and the same observation holds good with respect to Turkey. Substitute Edition: current; Page: [ 19 ] orthodox and heretic, it at one time held good in all Catholic, not to say in all Christian countries; as well with regard to the other virtues in general as to that of veracity in particular. To reduce the precept to a state adapted to practice, it has become more and more the custom to fill up from the precepts of the moral sanction, the reputed deficiencies manifested in these particulars by the religious sanction.
In a delineation, which at this time of day should come to be given, of what the religious sanction prescribes in relation to truth and falsehood; the exceptions above mentioned as applied by the moral sanction to the general requisition of veracity and verity—the particular allowances as well as counter-prescriptions made by the moral sanction, in favour of the several classes of falsehoods, designated as above by the several appellations of falsehoods of duty, falsehoods of humanity, and falsehoods of urbanity,—would probably not be omitted.
Bentham might have quoted, in illustration of this remark, the following passage from Paley—a writer of undisputed piety, who, in a system of morals professing to be founded upon the will of God as its principle, makes no difficulty in giving a licence to falsehood, in several of its necessary or allowable shapes. There are falsehoods which are not lies, that is, which are not criminal; as, where the person to whom you speak has no right to know the truth, or, more properly, where little or no inconveniency results from the want of confidence in such cases; as where you tell a falsehood to a madman, for his own advantage; to a robber, to conceal your property; to an assassin, to defeat or divert him from his purpose.
The particular consequence is, by the supposition, beneficial; and as to the general consequence, the worst that can happen is, that the madman, the robber, the assassin, will not trust you again; which beside that the first is incapable of deducing regular conclusions from having been once deceived, and the two last not likely to come a second time in your way , is sufficiently compensated by the immediate benefit which you propose by the falsehood.
To this head may be referred all solemn declarations of opinion on the subject of controverted points respecting facts out of the reach of human knowledge, delivered in the shape of pre-appointed formularies; adopted and authenticated by the signature of the witness in question, or otherwise; the declaration enforced or not by the ceremony of an oath.
Every person taking orders in the English church, signs a declaration of his full belief in the whole of the thirty-nine articles of that church. Some of the most pious members of it have not, however, scrupled to declare, that it is not necessary that this declaration should be true: that it is allowable for a person who does not believe in the whole, but only in a part, of the thirty-nine articles, to sign a declaration professing himself to believe in the whole.
The topic of oaths, and the topic of exclusionary rules, grounded on the supposition of a deficiency of sensibility to the force of the religious sanction, will furnish proofs and illustrations. V, pp. Cases no doubt there are, and those very numerous, in which the religious Edition: current; Page: [ 21 ] sanction appears to exercise a much stronger influence than is here ascribed to it.
That which is really the effect of the moral sanction, or of the legal sanction, or of both, is continually ascribed to the influence of the religious sanction. From causes which it would be easy, but foreign to the present purpose, to explain, religious persons are apt to suppose, that an act, if virtuous, is more virtuous, if vicious, more excusable, when the motive which prompted it belonged to the religious class, than when it belonged to any other: and even in some cases, that an act which, if produced by any other motive, would be vicious, becomes virtuous by having a motive of this class for its cause.
Thus it becomes the interest of every one, to whom the reputation of virtue is an object of desire, to persuade others, and even himself, that as many as possible of his actions, be they good or bad, emanate from that class of motives. Arrangements competent to the process of investigation, as here described, are in every case necessary, to preserve the aggregate mass of evidence from being untrustworthy and deceptitious on the score of incompleteness.
This last article in the list of securities, which, as the reader will have seen, is a security, not for the correctness of any one article of evidence, but for the completeness of the whole mass, belongs to the head of Forthcomingness, which was reserved by the Author to form part of a work on Procedure. II, pp. Whatsoever be the species of delinquency, of the vexation in question the magnitude will be the same. The proportion between the two mischiefs, between the two benefits, or between the benefit on one hand and the price paid for it in the shape of mischief viz.
It seems, however, that there can be scarcely any cases in which an extraneous witness, not suspected of being in any way implicated in the offence of which the defendant stands accused, can with propriety be subjected to confinement: particularly to such close confinement as is here in question. Not that, if there were no better means of warding off the danger of deception from his testimony, there might not be cases of so much importance that even this remedy, expensive as it is, would be fit to be employed.
But I see no reason why the same arrangement which is proposed by Mr. Bentham to be adopted in the case of a defendant, viz. I admit that it would be absurd, in the view of obviating the danger of mendacity-serving suggestion, to receive in every cause the evidence of every witness in the first instance, and thus try the cause from beginning to end, in order to facilitate the trying of it again at a subsequent period: but if as Mr. Bentham maintains a strong suspicion that the witness means to give false evidence, renders even confinement Edition: current; Page: [ 23 ] of his person, if necessary to the prevention of deception from that cause, a justifiable measure, that same degree, or even a less degree, of suspicion, would surely justify the subjecting him to a preliminary examination; which, though it would not prevent him from subsequently receiving mendacity-serving information, would at any rate render such information of little use to him for his mischievous purpose.
II, p. But, when the connection is once formed, it contributes a material assistance to those other original and direct purposes: inasmuch as the advantage derived from the institution in this point of view is carried to account, and serves to set in the scale against whatever articles are chargeable upon it on the side of disadvantage. This last might perhaps without impropriety be struck out of the list of uses: since a tax on contracts, in whatever manner laid on, is either a law-tax, that is, a tax upon justice, which is perhaps the worst of all taxes, or a tax upon the transfer of property, which is one of the worst, or both together.
No such table is to be found in the MS. III, p. Correspondent evidentiary facts,—any acts proved to have been performed, and considered as having been performed in consequence of such supposed antecedent acts; for example, in pursuit of the same end. This table, as well as that which is subsequently mentioned, is also wanting.
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. Had it been in the power of the editor to select that arrangement which appeared to him best suited to the nature of the subject, he would have placed so much of the present chapter as is merely explanatory of the nature of improbability and impossibility, in the first book, entitled Theoretic Grounds; and so much of it as relates to the probative force of improbability and impossibility, considered as articles of circumstantial evidence, in the present book.
It appeared to him, however, on perusing the manucript, that the mode in which Mr. Bentham had treated the subject did not admit of any such separation of it into two parts, as he had at first contemplated. The only question, therefore, which remained, was, whether to place the chapter under the head of Theoretic Grounds, or under that of Circumstantial Evidence?
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:. 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. This may be illustrated by the following passage from Locke:.
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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, temperate; however specious these and the like propositions may at Edition: current; Page: [ 26 ] 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. These propositions, even such an one as the last, viz.
The terms straight line, and space, and enclose, 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 enclosure 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 enclose a space. If they touch at any 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 enclosure, 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 enclosure 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. III, pp. He continues: ] 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.
It will be attempted to be shewn in a subsequent note, 28 that even what Mr. Bentham calls impossibilities in toto, are in reality nothing more than facts in a high degree improbable. The force of cohesion,—the attraction observed to take place amongst the homogeneous parts of the same whole. The force of chemical attraction: to which, perhaps, may be to be added repulsion. The force of repulsion or elasticity, given to the particles of other matter by caloric, when, being united with them, it forms a gas.
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. The force of electrical and galvanic attraction and repulsion. The force of muscular motion put in action by the vital power, in the case of the involuntary motions that take place in living animals.
The force of muscular motion put in action in the way of animal galvanism. 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 any thing that would prevent me from regarding it as being, in the sense above determined, practically impossible. 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. 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. Bentham has given a list whether complete or incomplete is of no consequence for the present purpose of the various forces by which gravitation is known to be, under certain circumstances, counteracted: and assuming this list to be complete, he proceeds to infer [p.
Suppose the catalogue of all the known forces which may operate to the production of motion, or, as Mr. Bentham calls them, the primum mobiles, to be at present complete: does it follow that it will always remain so? Is it possible to set limits to the discoveries which mankind are capable of making in the physical sciences? Are we justified in affirming that we are acquainted with all the moving forces which exist in nature?
Before the discovery for instance of galvanism, it will be allowed, we should not have been justified in making any such assertion. By what infallible mark are Edition: current; Page: [ 29 ] we to determine, when we have come to the knowledge of all the properties of matter? Bentham himself acknowledges [p. Had our grandfathers been told, that there existed a force in nature, which was capable of setting gold, silver, and almost all the other metals on fire, and causing them to burn with a bright blue, green, or purple flame,—of converting the earths into bright metallic substances by the extrication of a particular kind of air; etc.
Suppose it certain that all the great moving forces, to one or more of which all the phenomena of the universe must be referable, were known to us; we should not, to any practical purpose, be farther advanced than before. We might indeed, in a general way, be assured of the impossibility of every phenomenon not referable to some one or more of these forces as its cause: but that any given alleged phenomenon is in this predicament, is more than we could possibly be assured of; until we knew not only all the moving forces which exist, but all the possible varieties of the operation of all those forces, and all the forms and shapes under which it is possible for them to manifest themselves; until, in short, we knew all which it is possible to know of the universe.
How can I be sure that a given phenomenon which has no perceptible cause, is not the effect of electricity, unless I knew what all the effects of electricity are?
And so of all the other laws of nature. As, however, it is very improbable that we ever shall know all the laws of nature in all their different combinations and manifestations, and as, moreover, it is difficult to see how, even if we did know them all, we could ever be certain that we did so; it seems that we never can pronounce, with perfect certainty, of any conceivable event, that it is impossible.
See even Mr. Bentham himself, infra, Sect. Although, however, it could not be pronounced, of the story told by Mr. Bentham, that the event which it relates is impossible, thus much may with safety Edition: current; Page: [ 30 ] be pronounced, that, if it did happen, it was not produced by witchcraft.
I cannot conceive the existence of any evidence, which could convince me that witchcraft was the cause of it. The reason is this: suppose the fact proved, the question remains,—Is it referable to witchcraft, or to some natural cause? That extraordinary events from natural causes have frequently occurred, there is abundant evidence: while there cannot, in the nature of things, be any evidence, that any event has ever been occasioned by witchcraft. There may be evidence that a particular event has uniformly followed the will of a particular person supposed to be a witch; but that the supposed witch brought about the given effect, not by availing herself of the laws of nature, but through the agency of an evil spirit, counteracting those laws,—this can never be more than an inference: it is not in the nature of things that any person should have personal knowledge to that effect; unless he has that perfect acquaintance with all the laws of nature, which alone can enable him to affirm with certainty that the given effect did not arise from any of those laws, What alleged witch, or magician, was ever suspected of producing more extraordinary effects than are daily produced by natural means, in our own times, by jugglers?
Omniscience alone, if witchcraft were possible, could enable any one not in the secret, to distinguish it from jugglery. It is no wonder, then, that no evidence can prove witchcraft; since there never can be any evidence of it, good or bad, trustworthy or the reverse. V, Chap. After an attentive consideration of the characters by which Mr. Bentham endeavours to distinguish his three classes from one another, 31 the reader will probably join with me in reducing these three classes to two; viz.
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. 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 metaphor, stiled 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 follow 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 Edition: current; Page: [ 32 ] 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, in my conception, 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. The first of these is water turning to ice, a fact that was incredible to the King of Siam, according to an anecdote reported by Locke. 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.
Compare this with page , and the note at the bottom of that page. On the one side say that of the demandant , a fact is deposed to by a witness: on the other side viz. 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.
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. The nature of the impossibility is in both cases the same; in both Edition: current; Page: [ 34 ] 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.
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. VI, Chap. This and the following section were left by the author in the state of mere fragments. Several memoranda, far too incoherent to be inserted, prove it to have been his intention to enter more fully both into the subject of ex parte preappointed evidence, and into that of adscititious evidence.
It does not appear, however, that he carried this intention into effect. Here ends all that Mr. Bentham had written on the subject of adscititious evidence, with the exception of some loose memoranda. What follows was chiefly made up from these memoranda by the editor.
The course proper to be taken, in respect to adscititious evidence, will be found to vary, according as the document in question is a previous decision, or the whole or some part of the minutes of the evidence delivered in a previous cause. In respect of the propriety of admission, both these species of adscititious evidence stand nearly on the same ground. Neither of them ought to be admitted, when better evidence from the same source is, without preponderant inconvenience, to be had; neither of them ought to be rejected, when it is not.
There is not, probably, that system of judicial procedure in existence, how bad soever the mode of taking evidence that it employs , which does not afford a greater probability of right decision than of wrong; and in general the presumption of right decision is a very strong one. True it is that no decision of a court of justice, certifying the existence of a fact, affords ground for believing it, any farther than as such decision renders probable the existence, at the time when it was pronounced, of evidence sufficient to support it: and if the original evidence, on which the decision in the former cause was grounded, were forthcoming in the present, that evidence would be preferable, as a foundation for decision, to the mere opinion formerly pronounced on the ground of that same evidence by a judge.
But it scarcely ever happens that evidence which has once been presented, admits of being again presented in as perfect a form as before. All that important species of evidence which is constituted by the deportment of the witness in the presence of the judge, is, in most cases, irrecoverably lost: such evidence as can be obtained now, might not be sufficient to warrant the former decision, and yet the decision, when pronounced, may have been perfectly borne out by the evidence on that occasion adduced.
On the other hand, it is true that, in very many cases, by recurring to the original sources, sufficient evidence of the fact might even now be obtained, not, however, without more or less of delay, vexation, and expense: for the avoidance of which, it is often proper that the previous decision, though an inferior kind of evidence, should be received as a substitute, in the place of a superior kind.
As to the minutes of the evidence delivered in the former cause; it is sufficiently manifest that they ought not to be admitted, if recurrence to the original sources of evidence be practicable, without preponderant inconvenience; if the witnesses in the former cause be capable of being examined, or such written or real evidence as it may have afforded be capable of being exhibited, in the present: unless when there may be a use in comparing two testimonies delivered by the same witness on two different occasions.
But if no matter from what cause recurrence to the original sources be either physically or prudentially impracticable, the minutes of the former evidence should be admitted, and taken for what they are worth. If the Edition: current; Page: [ 36 ] evidence in question be oral testimony, being generally upon oath, subject to punishment in case of intentional falsehood, and to counter-interrogation, it is at any rate better than hearsay evidence, which, at its origin, had none of these securities: if it be real evidence, the official minutes of it are the very best kind of reported real evidence, of which hereafter.
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