not (i); and astronomers investigate the curves bodies would describe if acted on by forces which, so far as we ences. are aware, have no patterns in nature (k). 2. Real exist- 2. Real existences: i. e. Objects without the mind corresponding to ideas within it (7). § 6. 3°. With regard to intensity of persuasion; the 3o. Intensity of faculties of the human mind are comprehended in the persuasion. genera, knowledge and judgment (m). 1. By "know- 1. Knowledge. ledge," strictly speaking, is meant when we have an actual perception of the agreement or disagreement of any of our ideas (n); and it is only to such a perception that the term "certainty" is properly applicable (o). Certainty. Knowledge is intuitive when this agreement or disagreement is perceived immediately by comparison of the ideas themselves: demonstrative, when it is only perceived mediately, i. e. when it is deduced from a comparison of each with intervening ideas which have a constant and immutable connexion with them; as in the case of mathematical truths of which the mind has taken (i) Locke, bk. 4, ch. 4, § 6. (k) It must not however be supposed that mathematical truths have not, like all others, their ultimate basis in experience. As the highest authority we subjoin the following from the Preface to Sir I. Newton's immortal work "Philosophiæ Naturalis Principia Mathematica." "Linearum rectarum et circulorum descriptiones, in quibus Geometria fundatur, ad Mechanicam pertinent. Has lineas describere geometria non docet, sed postulat. Postulat enim ut tyro easdem accuratè describere priùs dicerit, quàm limen attingat geometriæ; dein, quomodo per has operationes pro blemata solvantur, docet; rectas (1) Perhaps, in order to avoid (m) Locke, bk. 4, ch. 14, § 4. 2. Judgment. Probability. Extensive sphere of the operations of judgment. in the proofs. And, lastly, when through the agency of our senses we obtain a perception of the existence of external objects, our knowledge is said to be sensitive (p). But knowledge and certainty are constantly used in a secondary sense which it is important not to overlook; viz. as synonymous with settled belief or reasonable conviction as when we say that such a one received stolen goods knowing them to have been stolen; or that we are certain, or morally certain, of the existence of such a fact, &c. § 7. 2. "Judgment," the other faculty of the mind, though inferior to knowledge in respect of intensity of persuasion, plays quite as important a part in human speculation and action, and, as connected with jurisprudence, demands our attention even more. It is the faculty by which our minds take ideas to agree or disagree, facts or propositions to be true or false, by the aid of intervening ideas whose connexion with them is either not constant and immutable, or is not perceived to be so (q). The foundation of this is the probability or likelihood of that agreement or disagreement, that truth or falsehood, deduced or presumed from its conformity or repugnancy to our knowledge, observation and experience (r). Judgment is also often based on the testimony of others vouching their observation or experience (s); but this is clearly a branch of the former, as our belief in such cases rests on a presumption of the accuracy and veracity of the narrators. § 8. Actual knowledge and certainty extending a comparatively little way, men are compelled to resort to judgment and act on probability in by far the greater (p) Locke, bk. 4, ch. 2; ch. 11, and ch. 15, § 1. (9) Id. bk. 4, ch. 14, § 3, and ch. 15, § 1. (r) Locke, ch. 14, § 4; ch. 15, §§ 3 and 4. (s) Id. ch. 15, § 4. number of their speculations, as well as in the transactions of life, both ordinary and extraordinary, trivial and important (t). The faculty of judgment is conversant not only about matters of fact, which, falling under the observation of our senses, are capable of being proved by human testimony, but also about the operations of nature, and other things beyond the discovery of our senses (u); and thus embraces the enormous class of subjects investigated by analogy and induction (x). But here it is important to remark that on the same matter one man may have knowledge and certainty, while another has only judgment and probability: as when a man, either from ignorance of mathematical principles or laziness to go through the proofs, receives a mathematical truth on the testimony of one who comprehends it; in this case he has only got moral evidence of that truth, while his informant has demonstrative proof (y). suasion re § 9. Another great distinction between knowledge Degrees of per and judgment remains to be pointed out. The former sulting from is, as we have seen, reducible to three kinds (2); but to judgment. classify the degrees of persuasion resulting from judgment is wholly beyond human power; for the extent to which facts or propositions may be in conformity with our antecedent knowledge, observation or experience, necessarily varies ad infinitum. An attempt has been made to express some of the shades of judgment by the terms assurance, confidence, confident belief, belief, conjecture, guess, doubt, wavering, distrust, disbelief, &c.(a) § 10. The word PROOF seems properly to mean any Proof. thing which serves, either immediately or mediately, to (t) Locke, bk. 4, ch. 14, § 1; 3 Bentham's Judicial Evidence, 351. (u) Locke, bk. 4, ch. 16, §§ 5 and 12. (r) Id. § 12, and Bonnier, Traité des Preuves, §§ 7 et seq. (y) Locke, bk. 4, ch. 14, § 3, (a) Locke, bk. 4, ch. 16, §§ Evidence. convince the mind of the truth or falsehood of a fact or proposition (b): and as truths differ, the proofs adapted to them differ also (c). Thus the proofs of a mathematical problem or theorem are the intermediate ideas which form the links in the chain of demonstration: the proofs of any thing established by induction are the facts from which it is inferred, &c.: and the proofs of matters of fact in general are our senses, the testimony of witnesses, documents, and the like. Some authors use the terms "factum probandum" and "factum probans" to designate respectively the fact to be proved and that by which it is proved (d). "Proof" is also applied to the conviction generated in the mind by proof properly so called (e) § 11. The word EVIDENCE signifies in its original sense the state of being evident, i. e. plain, apparent or notorious (ƒ). But by a beautiful and almost peculiar inflexion of our language (g) it is applied to that which tends to render evident, or to generate proof. This is the sense in which it is commonly used in our law books, and will be used throughout this work. Evidence, thus (b) Domat, Les Lois Civiles dans leur Ordre Natural, part. 1, liv. 3, tit. 6; Bonnier, Traité des Preuves, § 3. (c) Domat in loc. cit. (d) 3 Benth. Jud. Ev. 3; Wills, Circ. Ev. 136, 137, 153. 3rd Ed. (e) Matthæus de Probationibus, c. 1, N. 1; Huberus, Prælectiones Juris Civilis, lib. 22, tit. 3, n. 2; 1 Greenl. Ev. § 1, 4th Ed. duced by the testimony of our senses: See Quintilian, Inst. Orat. lib. 6, c. 2; Calvin, Lexic. Jurid. ; Steph. Thesaur. Ling. Lat. ; Domat, Lois Civiles, part. 1, liv. 3, tit. 6; Bonnier, Traité des Preuves, 3, 4, 5, 6, 69, &c. All relating to evidence in the English sense of that term, is treated of by the Civilians under the head "probatio," and by the French writers under that of "preuve." (g) It has the same meaning in Norman French; see int. al. T. 18 Edw. II. 614, tit. Replegg. ; 9 Edw. III. 5, 6, pl. 11. understood, has been well defined any matter of fact, the effect, tendency, or design of which is to produce in the mind a persuasion, affirmative or disaffirmative, of the existence of some other matter of fact (h). The fact sought to be proved is termed "the principal fact": the fact which tends to establish it, "the evidentiary fact”(i). When the chain consists of more than two parts, the intermediate links are principal facts with respect to those below and evidentiary facts with respect to those above them. Such we propose to call "subalternate" principal and evidentiary facts. facts. § 12. Confining ourselves henceforward to truths of Divisions of fact-the proper object of the present treatise-we shall first direct attention to some divisions of them, which, as connected with jurisprudence especially, it will be con venient to bear in mind. In the first place, then, facts are 1. Physical and either physical or psychological(k). By "physical facts" psychological. is meant such as either have their seat in some inanimate being, or if in an animate then not by virtue of the qualities which constitute it such; while "psychological facts" are those which have their seat in an animate being by virtue of the qualities by which it is constituted animate. Thus; the existence of visible objects, the outward acts of intelligent agents, the ordinary res gestæ of a suit, &c., range themselves under the former class: while to the latter belong such as only exist in the mind of an individual; as, for instance, the sensations or recollections of which he is conscious, his intellectual assent to any proposition, the desires or passions by which he is agitated, his animus or intention in doing particular acts, &c. Psychological facts are obviously incapable of direct proof by the testimony of witnesses-their exist (h) 1 Benth. Jud. Ev. 17. "Evidence," Evidentia, signifies, generally, any proof, be it by the testimony of men, records or writings Cowel's Interpreter ; and Termes de la Ley. See Co. (i) 1 Benth. Jud. Ev. 18. |