Grammar of Assent

A learned writer says, "In criminal prosecutions, the circumstantial evidence should be such, as to produce nearly the same degree of certainty as that which arises from direct testimony, and to exclude a rational probability of innocence." [Note 13] By degrees of certainty he seems to mean, together with many other writers, degrees of proof, or approximations towards proof, and not certitude, as a state of mind; and he says that no one should be pronounced guilty on evidence which is not equivalent in weight to direct testimony. So far is clear; but what is meant by the expression "rational probability"? for there can be no probability but what is rational. I consider that the "exclusion of a rational probability" means the "exclusion of any argument in the man's favour which has a rational claim to be called probable," or rather, "the rational exclusion of any supposition that he is innocent;" and "rational" is used in contra-distinction to argumentative, and means "resting on implicit reasons," such as we feel, indeed, but which for some cause or other, because they are too subtle or too circuitous, we cannot put into words so as to satisfy logic. If this is a correct account of his meaning, he says that the evidence against a criminal, in order to be decisive of his guilt, to the satisfaction of our conscience, must bear with it, along with the palpable arguments for that guilt, such a reasonableness, or body of implicit reasons for it in addition, as may exclude any probability, really such, that he is not guilty,—that is, it must be an evidence free from anything obscure, suspicious, unnatural, or defective, such as (in the judgment of a prudent man) would hinder that summation and coalescence of the evidence into a proof, which I have compared to the running into a limit, in the case of mathematical ratios. Just as an algebraical series may be of a nature never to terminate or admit of valuation, as being the equivalent of an irrational quantity or surd, so there may be some grave imperfections in a body of reasons, explicit or implicit, which is directed to a proof, sufficient to interfere with its successful issue or resolution, and to balk us with an irrational, that is, an indeterminate, conclusion.

So much as to the principle of conclusions made upon evidence in criminal cases; now let us turn to an instance of its application in a particular instance. Some years ago there was a murder committed, which unusually agitated the popular mind, and the evidence against the culprit was necessarily circumstantial. At the trial the Judge, in addressing the Jury, instructed them on the kind of evidence necessary for a verdict of guilty. Of course he could not mean to say that they must convict a man, of whose guilt they were not certain, especially in a case in which two foreign countries, Germany and the American States, were attentively looking on. If the Jury had any doubt, that is, reasonable doubt, about the man's guilt, of course they would give him the benefit of that doubt. Nor could the certitude, which would be necessary for an adverse verdict, be merely that which is sometimes called a "practical certitude," that is, a certitude indeed, but a certitude, that it was a "duty," "expedient," "safe," to bring in a verdict of guilty. Of course the Judge spoke of what is called a "speculative certitude," that is, a certitude of the fact that the man was guilty; the only question being, what evidence was sufficient for the proof, for the certitude of that fact. This is what the Judge meant; and these are among the remarks which, with this drift, he made upon the occasion:—

After observing that by circumstantial evidence he meant a case in which "the facts do not directly prove the actual crime, but lead to the conclusion that the prisoner committed that crime," he went on to disclaim the suggestion, made by counsel in the case, that the Jury could not pronounce a verdict of guilty, unless they were as much satisfied that the prisoner did the deed as if they had seen him commit it. "That is not the certainty," he said, "which is required of you to discharge your duty to the prisoner, whose safety is in your hands." Then he stated what was the "degree of certainty," that is, of certainty or perfection of proof, which was necessary to the question, "involving as it did the life of the prisoner at the bar,"—it was such as that "with which," he said, "you decide upon and conclude your own most important transactions in life. Take the facts which are proved before you, separate those you believe from those which you do not believe, and all the conclusions that naturally and almost necessarily result from those facts, you may confide in as much as in the facts themselves. The case on the part of the prosecution is the story of the murder, told by the different witnesses, who unfold the circumstances one after another, according to their occurrence, together with the gradual discovery of some apparent connexion between the property that was lost, and the possession of it by the prisoner."

Now here I observe, that whereas the conclusion which is contemplated by the Judge, is what may be pronounced (on the whole, and considering all things, and judging reasonably) a proved or certain conclusion, that is, a conclusion of the truth of the allegation against the prisoner, or of the fact of his guilt, on the other hand, the motiva constituting this reasonable, rational proof, and this satisfactory certitude, needed not, according to him, to be stronger than those on which we prudently act on matters of important interest to ourselves, that is, probable reasons viewed in their convergence and combination. And whereas the certitude is viewed by the Judge as following on converging probabilities, which constitute a real, though only a reasonable, not an argumentative, proof, so it will be observed in this particular instance, that, in illustration of the general doctrine which I have laid down, the process is one of "line upon line, and letter upon letter," of various details accumulating and of deductions fitting into each other; for, in the Judge's words, there was a story—and that not told right out and by one witness, but taken up and handed on from witness to witness—gradually unfolded, and tending to a proof, which of course might have been ten times stronger than it was, but was still a proof for all that, and sufficient for its conclusion,—just as we see that two straight lines are meeting, and are certain they will meet at a given distance, though we do not actually see the junction.

3. The third instance I will take is one of a literary character, the divination of the authorship of a certain anonymous publication, as suggested mainly by internal evidence, as I find it in a critique written some twenty years ago. In the extract which I make from it, we may observe the same steady march of a proof towards a conclusion, which is (as it were) out of sight;—a reckoning, or a reasonable judgment, that the conclusion really is proved, and a personal certitude upon that judgment, joined with a confession that a logical argument could not well be made out for it, and that the various details in which the proof consisted were in no small measure implicit and impalpable.

"Rumour speaks uniformly and clearly enough in attributing it to the pen of a particular individual. Nor, although a cursory reader might well skim the book without finding in it anything to suggest, &c., … will it appear improbable to the more attentive student of its internal evidence; and the improbability will decrease more and more, in proportion as the reader is capable of judging and appreciating the delicate, and at first invisible touches, which limit, to those who understand them, the individuals who can have written it to a very small number indeed. The utmost scepticism as to its authorship (which we do not feel ourselves) cannot remove it farther from him than to that of some one among his most intimate friends; so that, leaving others to discuss antecedent probabilities," &c.

13. Phillipps' "Law of Evidence," vol. i. p. 456.