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OF THE NATURE AND PHILOSOPHY OF EVIDENCE.
EVIDENCE is a subject of vast and extensive impor
tance 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.
b Eden 164. 165.
"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) perspicuæ et faciles intelligi,"c
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."
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 systen. is so much attached, has done immense mischief in the theory of evidence. It has been
e Bec. c. 14, p. 39.
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 agree. ment, 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."
f We give the name of evidence to a clear and distinct view of things and of their relations. 1. Burl. 8.