Probity

“ Whence it is our duty to approve or disapprove, to receive or reject everything only after the most careful examination; but to examine, to test whether anything have been well or ill advanced, to ascertain whether some falsehood does not lurk under a proposition, it is imperative on us to bring it to the proof of sense, and to admit or reject it on the decision of sense. ”

“ Who knows how many links we may have to ascend in the vast cycle of worlds around, ere we arrive at the one which is knowledge—where we may look before, and after, and judge of the whole? How many stages of probation may we yet have to pass! ”

“ And if, reflecting on this all-pervasive character of the Intelligible and of Intelligence, we formulate certain 'Laws of Thought', we are condensing into isolated judgements truth for which there is overwhelming evidence. Such judgements are 'indubitable'; for an intelligent doubt presupposes knowledge, and any and every knowledge inevitably, confirms them. ”

“ Immediate acceptance of this proposition would be as foolhardy as doubt in the face of all the facts. The proper procedure is to examine and establish the determining conditions, i.e., who has counted up this “always,” and what caution was used to avoid the overlooking of any exception. The real work of interpretation lies in such testing. We do not want to reach the truth with one blow, we aim only to approach it. But the step must be taken and we must know how large it is to be, and know how much closer it has brought us to the truth. ”

“ No one is asked to blindly accept any statement I may make, but the one who really wants to learn will accept “on probation” such statements as are not as yet truth to him, and then test them out for himself in every way he may wish until, through his own experience, he is able to see their truth and accept them because he has proved them for himself and not because I have made them. ”

“ Evidence.+—We may reach belief in the truth of a specific statement by means of deductive reasoning. Commonly, however, when dealing with an actual state or occurrence, we present other facts or circumstances that show its existence. The facts presented may be those of experience, the testimony of witnesses, the opinion of those considered as experts in the subject, or a combination of circumstances known to have existed. To be of any value as arguments, they must be true, and they must be related to the fact that we are trying to prove. These true and pertinent facts we term evidence. ”

“ To ease the step from ideas to their expression, to estimate motive and intention, to know and appraise at their proper value the logical weaknesses and personal foibles of all kinds and conditions of offenders and witnesses,—to do this in accord with high standards, requires that men as well as evidence shall be judged. Allied to this problem which appeals to a large range of psychological doctrine, there is yet another which appeals to a yet larger and more intricate range,—that of human character and condition. ”

“ Psychology can now give the general principles in this matter. Witnesses go on the stand and swear to all sorts of things as to what they heard and saw and did, often months and even years previously. The expert clinical psychologist can tell the court the probability of such evidence being true. Experiments have shown that there is a large per centage of error in such evidence. The additional value that comes from the oath has been measured. The oath increases the liability of truth only a small percentage. ”

“ As DEMONSTRATION is the showing the agreement or disagreement of two ideas, by the intervention of one or more proofs, which have a constant, immutable, and visible connexion one with another; so PROBABILITY is nothing but the appearance of such an agreement or disagreement, by the intervention of proofs, whose connexion is not constant and immutable, or at least is not perceived to be so, but is, or appears for the most part to be so, and is enough to induce the mind to judge the proposition to be true or false, rather than the contrary. ”

“ Proof, say you?—can that be proof, I appeal to you judges—that which, however false it may be, or however mistaken by the witnesses, cannot, in the very nature of things, be explained away nor contradicted; that which calls upon a poor creature worn out with age and misery—an idiot—for of a truth she is little better—I pray you judges—I pray you—on me let your displeasure fall ”

“ The psychology of the judge enters into the consideration as influentially as the psychology of the offender. The many-sidedness of the problems thus unified in a common application is worthy of emphasis. There is the problem of evidence: the ability of a witness to observe and recount an incident, and the distortions to which such report is liable through errors of sense, confusion of inference with observation, weakness of judgment, prepossession, emotional interest, excitement, or an abnormal mental condition. ”

“ In this single sentence all the errors of the world in regard to human testimony seem to be condensed—the placing of honesty in the front rank of qualifications, the confounding of general intelligence with special intelligence, the inference that the senses are infallible, and the utter non-recognition of the limitations of the brain and its liability to disturbance in the presence of circumstances that excite the emotions. ”

“ Probation is, therefore, of instantaneity and not of continuity, except so far as continuity indicates a succession of moral or probationary processes; character is the tendency evoked by the last determination; virtuous life is a succession of best choices, and finite moral being and morality terminate with probation. ”

“ And when he tells you, from his own knowledge, what every one must presume, from the extreme probability of the thing, whether he told it or not, one such testimony is worth a thousand that contradict that probability, when the parties have a better understanding with each other, and when they have a point to carry that may unite them in a common deceit. ”

“ Other examples of a like character are found in statements as to weight, height, distance, speed, and the like, as to which men of common powers of observation, who are not strictly experts, are, because of convenience and necessity and the probability of reasonable and ordinary accuracy, commonly permitted to give their own judgment and conclusions as evidence. ”

“ To such I would say, judge nothing hastily, dismiss nothing petulantly, patient investigation, and sometimes suspension of judgment in relation to matters difficult of belief are necessary to the ascertainment of truth, and in such manner wise men, anxious to know the truth, proceed. ”

“ But when we look back to see from whence the probative force of the process is derived, we find that at every single step, unless we suppose ourselves to be thinking and talking of the things, and not the mere symbols, the evidence fails. ”

“ Investigation, on the contrary, whose first business is to discover the truth, must take its departure from the largest possible number of independent, perfectly obvious and well-recognized considerations, with the proviso that the results which the prosecution of one consideration yields, shall be subsequently corrected, so far as is necessary, by the results of the rest. ”

“ The quality by virtue of which it has such an effect may be called its probative force, and evidence may therefore be defined as any 441fact which possesses such force. Probative force may be of any degree of intensity. When it is great enough to form a rational basis for the inference that the fact so evidenced really exists, the evidence possessing it is said to constitute proof. ”

“ There is, of course, no doubt that these investigators have correctly collected their material; that their results shall possess general validity is, however, not so certain. The facts are such that much depends, not only on the individual character, but also on the instant of examination. One hears various assertions of individuals at times when they are most quick to apprehend and at their best, and hence it is hardly possible to draw a general rule from such phenomena. ”

“ And I shall proceed to consider the testimony of Experience, when I shall have first advertis’d You, that if Men were as perfectly rational as ’tis to be wish’d they were, this sensible way of Probation would be as needless as ’tis wont to be imperfect. ”

“ As we extend our scrutiny into the evidence from direct observation, we find still other proofs independent of those just considered. One proof alone, be it remembered, is all that is required, but it will be found that there are many. ”

“ For I'm just as likely to do the proving wrong as the sum itself—more likely, for I'm always so tired when I get to the proving—and so all that's proved is that something's wrong, and I'm sure that isn't any good, except to make me cross. ”

“ In truth we have only shown that the particular relations, in the matter of length, breadth, number of nails, etc., agree, and hence we regard the positive part of the evidence as sufficient and neglect the whole troublesome negative part, which might establish the fact that at the time and in the region in question, nobody was or could be whose foot could accurately fit that particular footprint. ”

“ Skilled in the law yourself, thoroughly familiar, with the rules of evidence, it's more than possible that you might have reviewed matters and decided that there were things which, if they were known, would do harm instead of good—obscure the truth, perhaps ”

“ A sufficient definition of evidence or proof does not exist because no bounds have been set to the meaning of “Proved.” All disciplines furnish examples of the fact that things for a long time had probable validity, later indubitable validity; that again some things were considered proved and were later shown to be incorrect, and that many things at one time wobbly are in various places, and even among particular persons, supposed to be at the limits of probability and proof. ”

“ In brief,—since they loiter about and make a profit out of it, it is no wonder that in giving evidence they also loaf and bring to light only approximate truth. Nor is it difficult to indicate analogous persons in the higher walks of life. ”

“ And if conclusive proof be difficult to be obtained, shall we therefore fasten irremovably upon equivocal proof? Can we change the nature of what is contestable, and make it incontestable? Can we make that conclusive which God and nature have made inconclusive? ”

“ Hence, in the review of the basis for judgment, it is often discovered that the logical task has been performed with care, with the expenditure of much time, etc., only to be based upon some apparently unessential presupposition which contradicts all experience and is hence materially incorrect. ”

“ Presumptions normally arise when proof of one fact renders the existence of another fact "so probable that it is sensible and timesaving to assume the truth of [the inferred] fact . . . until the adversary disproves it." ”

“ Each judge in this respect is forced to rely upon his own judgment. He forms his opinion by comparing the divers testimonies and the circumstances by which the offence is accompanied, to the results of his reflections and his experiences, and in this respect a long habitude of interrogating and judging accused persons gives great advantage in ascertaining the truth in the midst of indices often contradictory. ”

“ The general nature of such evidence: it would be absurd of the logician to pretend to instruct the chemist, economist and merchant, as to the special character of the evidence requisite in their several spheres of judgment. Still, by investigating the general conditions of proof, he sets every man upon his guard against the insufficiency of evidence. ”

“ In this inquiry, perhaps, clearer evidence may be discovered, and firmer persuasion attained; for it is, commonly, easier to know what is wrong than what is right; to find what we should avoid, than what we should pursue. ”

“ Our discernment is very gross. In other cases we push our observation farther. We analyze to see just what lies between so as to bind together cause and effect, activity and consequence. This extension of our insight makes foresight more accurate and comprehensive. The action which rests simply upon the trial and error method is at the mercy of circumstances ”

“ And a presumption, which necessarily arises from circumstances, is very often more convincing and more satisfactory than any other kind of evidence: because it is not within the reach and compass of human abilities to invent a train of circumstances which shall be so connected together as to amount to a proof of guilt, without affording opportunities of contradicting a great part, if not all, of these circumstances. ”

“ Then, if a new and quite different notion arises in us, the alteration of the observed material occurs as easily again, and only long afterwards, when the observation has hardened, do fresh alterations fail. This is a matter of daily experience, in our professional as well as in our ordinary affairs. We hear of a certain crime and consider the earliest data. For one reason or another we begin to suspect A as the criminal. The result of an examination of the premises is applied in each detail{34} to this proposition. ”

“ May it not be asked, for one thing, whether, in the assertion, as the result of an examination of the human intellect, that it is incapable of knowing what lies beyond the finite, there is not involved an obvious self-contradiction? The examination of the mind can be conducted only by the mind, and if the instrument be, as is alleged, limited and defective, the result of the inquiry must partake of that defectiveness. ”