§ 28. The difficulty in its scientific, or strictly jurisprudential shape, seems to have shown itself principally in the attempt to arrange legal evidence into classes in respect of the degree of its cogency. This, I understand, was the case in the Roman law, and in some of the continental systems of jurisprudence which took their rise from the Roman law. “The direct evidence of so many witnesses was plena probatio. Then came minus plena probatio, then semiplenâ major and semiplenâ minor; and by adding together a certain number of half-proofs—for instance, by the production of a tradesman's account-books, plus his supplementary oath—full proof might be made out. It was on this principle that torture was employed to obtain a confession. The confession was evidence suppletory to the circumstances which were held to justify its employment.”[21]
According to Bentham,[22] the corresponding scale in the
English school was:—Positive proof, Violent presumption. Probable presumption, Light or Rash presumption. Though admitted by Blackstone and others, I understand that these divisions are not at all generally accepted at the present day.
§ 29. In the above we are reminded rather of modal syllogisms. The principal practical form in which the difficulty underlying the simple modal propositions presents itself, is in the attempt to obtain some criterion of judicial certainty. By ‘certainty’ here we mean, of course, not what the metaphysicians term apodeictic,[23] for that can seldom or never be secured in practical affairs, but such a degree of conviction, short of this, as every reasonable person will feel to be sufficient for all his wants. Here again, one would think, the quest must appear, to accurate thinkers, an utterly hopeless one; an effort to discover natural breaks in a continuous magnitude. There cannot indeed be the least doubt that, amongst limited classes of keen and practised intellects, a standard of certainty, as of everything else, might be retained and handed down with considerable accuracy: this is possible in matters of taste and opinion where personal peculiarities of judgment are far more liable to cause disagreement and confusion. But then such a consensus is almost entirely an affair of tact and custom; whereas what is wanted in the case in question is some criterion to which the comparatively uninitiated may be able to appeal. The standard, therefore, must not merely be retained by recollection, but be generally recognizable by its characteristics. If such a criterion could
be secured, its importance could hardly be overrated. But so far as one may judge from the speeches of counsel, the charges of judges, and the verdicts of juries, nothing really deserving the name is ever attained.
§ 30. The nearest approach, perhaps, to a recognized standard is to be found in the frequent assurance that juries are not bound to convict only in case they have no doubt of the guilt of the accused; for the absolute exclusion of all doubt, the utter impossibility of suggesting any counter hypothesis which this assumes, is unattainable in human affairs. But, it is frequently said, they are to convict if they have no ‘reasonable doubt,’ no such doubt, that is, as would be ‘a hindrance to acting in the important affairs of life.’ As a caution against seeking after unattainable certainty, such advice may be very useful; but it need hardly be remarked that the certainty upon which we act in the important affairs of life is no fixed standard, but varies exceedingly according to the nature of those affairs. The greater the reward at stake, the greater the risk we are prepared to run, and conversely. Hardly any degree of certainty can exist, upon the security of which we should not be prepared to act under appropriate circumstances.[24]