THE PRINCIPLES OF EVIDENCE, &c. &c. INTRODUCTION. tween law and § 1. LAW has been correctly defined a rule of human Connexion beaction, prescribed and promulgated by sovereign autho- facts. rity, and enforced by sanction of reward or punishment. But although human actions are the subject-matter about which law is conversant they are not essential to its existence; for the rule is the same whether its application be called forth or not. "If you commit murder or steal you shall be punished;" "if you buy a man's goods or lands you shall pay for them;" hold true as rules of law though no murder or theft were ever committed, and though every debt contracted were faithfully discharged. The rule continues in abstraction and theory until an act is done on which it can attach, and assume as it were a body and shape. The maxim of jurists and lawyers "ex facto oritur jus" must be understood in this sense; and the duty of judicial tribunals consequently embraces the investigation of doubtful, or disputed facts, as well as the application of the principles of jurisprudence to such as are ascertained. § 2. Facts which come in question in courts of justice are inquired into and determined in precisely the same way as doubtful or disputed facts are inquired into and determined by mankind in general, except so far as positive law has interposed with artificial rules to secure B Investigation of facts by judicial tribunals. impartiality and accuracy of decision, or exclude collateral mischiefs likely to result from the investigation. And this is strictly analogous to the relation between natural and municipal law, of which it has been well observed, "There are in nature certain fountains of justice, whence all civil laws are derived but as streams: and like as waters do take tinctures and tastes from the soils through which they run, so do civil laws vary according to the regions and governments where they are planted, though they proceed from the same fountains (a)." As therefore the study of natural law precedes that of municipal, so an inquiry into the natural resources of the human mind for the investigation of truth should precede an examination of the artificial means devised for its assistance and the present Introduction will accordingly consist of two sections devoted to these respective subjects. (a) Bacon on the Advancement of Learning, Book 2. SECTION I. EVIDENCE AND PROOF IN GENERAL. general. § 3. THE human understanding may be considered Human underin three points of view, namely:-With respect to the standing in sources of our ideas; the objects about which the human mind is conversant; and the intensity of our persuasions as to the truth or falsehood of facts or propositions. ideas. But there 1. Sensation. § 4. 1°. Metaphysicians trace all our ideas to the 1o. Sources of sources of sensation or of reflexion (b). appear to be two kinds of sensation (c); 1. The internal Internal sense. sense-the intuitive perception of our own existence and of what is actually passing in our minds. Of all forms (b) Locke on the Human Understanding, bk. 2, ch. 1, and passim. The term "reflexion" is here used in a large sense, as denoting that faculty through which the mind is supplied with ideas by any sort of operation of its own, either on ideas received through the senses, or other ideas either immediately or mediately traceable to them,-and, consequently, including most, if not all, those ideas which modern authors attribute to a faculty they call "consciousness, spontaneity, &c." The truth of Locke's ideal theory, when thus understood, seems admitted even by Stewart and Reid, who have so severely attacked it in other respects; (see Stewart's Philosophical Essays, Essay 1, ch. 2, pp. 85, 86, 3rd Ed.; Stewart's Philosophy of the Human Mind, vol. 1, ch. 1, sect.4, 6th Ed; Reid on the Powers of the Human Mind, vol. 1, Essay 3, ch. 5); and, notwithstanding some passages in his Essay, it may be a question whether such were not the meaning of Locke himself. In citing the works of that eminent metaphysician, we do not hold ourselves accountable for all his views, far less for every consequence that may be deduced from them. (c) This division is taken from Bonnier, Traité des Preuves, §§ 5 & 6. Locke in loc. cit. § 4, uses "internal sense" to signify "reflexion." of knowledge or persuasion this is the clearest and most indubitable; and is indeed the basis of every other. Locke and Descartes, however different their systems in other respects, agree in this. "Ego cogito, ergo sum is the celebrated maxim of the latter (d): "If I doubt of all other things," says the former (e), "that very doubt makes me perceive my own existence, and will not suffer me to doubt of that." "The scepticks," observes Sir Thomas Brown (f), "that affirmed they knew nothing, even in that opinion confute themselves, and thought External sense. they knew more than all the world beside." 2. The external sense: i. e. the faculty whereby the perception of the presence of external objects is conveyed to the mind through our outward senses (g). All our other ideas are formed from the above by the operations of reflexion (h). 2. Reflexion. 2o. Objects about which the mind is conver. sant. 1. Relations between ideas. § 5. 2°. The human mind is conversant about two classes of objects. 1. The relations between its ideas. Under this head come mathematical and such like truths; where it is obvious that the relations of our ideas to each other may be true although there be nothing without the mind corresponding to the ideas within it. The properties of an equilateral triangle or circle, for instance, are equally indisputable whether a perfect equilateral triangle or perfect circle can be found in the universe or (d) Principia Philosophiæ, pars 1, n. 7. (e) Locke on the Human Understanding, bk. 4, ch. 9, § 3. (f) Religio Medici, sect. 55, § 17, audacieuse n'oserait soulever de pareils doutes. L'évidence interne est la base de toute certitude judiciaire, comme de toute certitude en général; mais c'est une base incontestée et incontestable." (g) Locke, bk. 2, ch. 1.; Bonnier, Traité des Preuves, § 6. (h) Locke in loc. cit. and bk. 4, ch. 17; and see note (b), suprà. |