Sunday, February 26, 2012

James Wilson on Evidence

In his Lectures on Law, James Wilson gives fourteen kinds of evidence, which makes for an interesting list:

I. It arises from the external senses: and by each of these, distinct information is conveyed to the mind.

II. It arises from consciousness; or the internal view of what passes within ourselves.

III. It arises from taste; or that power of the human mind, by which we perceive and enjoy the beauties of nature or of art.

IV. It arises from the moral sense; or that faculty of the mind, by which we have the original conceptions of right and wrong in conduct; and the original perceptions, that certain things are right, and that others are wrong.

V. Evidence arises from natural signs: by these we gain our knowledge of the minds, and of the various qualities and operations of the minds, of other men. Their thoughts, and purposes, and dispositions have their natural signs in the features of the countenance, in the tones of the voice, and in the motions and gestures of the body.

VI. Evidence arises from artificial signs; such as have no meaning, except that, which is affixed to them by compact, or agreement, or usage: such is language, which has been employed universally for the purpose of communicating thought.

VII. Evidence arises from human testimony in matters of fact.

VIII. Evidence arises from human authority in matters of opinion.

IX. Evidence arises from memory, or a reference to something which is past.

X. Evidence arises from experience; as when, from facts already known, we make inferences to facts of the same kind, unknown.

XI. Evidence arises from analogy; as when, from facts already known, we make inferences to facts of a similar kind, not known.

XII. Evidence arises from judgment; by which I here mean that power of the mind, which decides upon truths that are self-evident.

XIII. Evidence arises from reasoning: by reasoning I here mean that power of the mind, by which, from one truth, we deduce another, as a conclusion from the first. The evidence, which arises from reasoning, we shall, by and by, see divided into two species—demonstrative and moral.

XIV. Evidence arises from calculations concerning chances. This is a particular application of demonstrative to ascertain the precise force of moral reasoning.

Even this enumeration, though very long, is, perhaps, far from being complete. Among all those different kinds of evidence, it is, I believe, impossible to find any common nature, to which they can be reduced. They agree, indeed, in this one quality—which constitutes them evidence—that they are fitted by nature to produce belief in the human mind.

Wilson's position, that what makes something evidence is merely its serving a kind of role, and not anything to do with its intrinsic character, and thus that evidence should not be treated as being all of one kind, is an interesting one, and, I think, right. The approach here is essentially a modified Scottish Common Sense approach, as might be expected given his background and education. (James Wilson was born and educated in Scotland; he then moved to the American colonies at the age of 24; he signed the Declaration of Independence for Pennsylvania; he served on the Committee of Detail that produced the first draft of the U.S. Constitution, and he also signed the U. S. Constitution for Pennsylvania; he served as a Justice on the first Supreme Court; and he was the first professor of law at the College of Philadelphia.)

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