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14 Sept 1803
Evidence
Instructions
Considerations in [...?]
Improbability
When a fact is considered as being to such a degree improbable, as not to be capable of being proved by any quantity even of the best evidence it is commonly termed impossible. Improbability or impossibility it or their physical, that is natural or moral fact is /may be/ said to be physically improbable, when it is considered as being inconsistent with the established and known order of things with any of those rules and propositions which have been deduced from the universal /general/ observation of mankind, and are termed laws of nature, such as for instance that which asserts as a known matter of fact, the weight or gravity of all the bodies that we see in, upon or near to this our earth: that property whereby if a man jumps up from the surface of the earth, he feels himself drawn down again.
A fact is said to be morally improbable, when it is considered as being inconsistent with the known course of human conduct. This species /sort/ of improbability is confined to such facts as take place /have their place/ in the human mind: such as the harbouring /entertaining/ of such and such perceptions, conceptions, intentions, wishes: the being actuated by such and such motives, under the existing circumstances of the case.
The degree of distrust produced in the breast of a Judge by the improbability of the alledged fact, when that improbability is of the physical kind, as above, will depend upon the confidence he has in his own knowledge respecting the powers and order of nature so far as the particular fact in question is concerned. if he have any doubt, he will do well to have recourse to scientific evidence: to call in the opinion of such persons as by their professional situation or reputation are pointed out to him as being particularly well informed in relation to matters of that sort. Thus suppose upon the testimony of two witnesses a demand made upon a man for money in satisfaction for damage done to a gardens ground by the fall of the first inhabited air-balloon that ever was and by reflection on the weight of bodies supposed the Judge to have been inclined to disbelieve the testimony, on the ground of the apparent improbability of the fact. In such case he would have done well to call in the opinion of some lecturer or lecturer on natural philosophy. And accordingly supposing him so to have done, he would have learnt from them that there was really no inconsistency between what he had always observed and heard concerning the heaviness of bodies in general, and what the witnesses had been [...?] concerning the extraordinary lightness of the particular body so raised.
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Title: [11 Sept 1803 Evidence Ch.]Description: 11 Sept 1803 Evidence Ch. [...?] Instructions Considerations in terminis [?] [...?] Improbabilities C Considerations proper to be borne in mind in judging of the weight of evidence the cause of distrust /suspicion/ - Improbability of the fact deposed to. The improbability of a fact in itself may be considered as a sort of counter-testimony - a sort of circumstantial evidence operating in contradiction to any direct evidence by which the fact in question would otherwise be considered as proved. The improbability of a fact may rise to such a degree as to render it absolutely incredible, incapable of being proved to the satisfaction of him who thinks of it, if not by any evidence, at least by any such evidence, as is actually adduced in proof of it. If the inference drawn from the improbability of the fact, viz: that it is not true be just: i:e: if notwithstanding the evidence /testimony/ by which the existence /truth/ of it is asserted it really was not true the fault must lie either in the inferences deduced from the testimony or in the testimony itself. If the testimony itself was to such a degree positive as to assert the existence of the matter of fact in question in direct term, then the fault can not lie in the inference deduced from the testimony by the Judge but must be in the testimony itself. The testimony must have either incompleat or false or both: though if as above it were to a certain degree positive, as above, there may be no room for charging it with being incompleat, and if the fact so asserted be false, the testimony by which the existence /reality/ of it was asserted must necessarily have been in some circumstance or other false. But as an assertion made by a man may be false without his being conscious of its being so, such falsity is not of itself proof of perjury. /may very well have place without perjury./
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Title: [This folio contains red pencil editing marks]Description: This folio contains red pencil editing marks probably in the hand of James Mill. Marginal summary also probably in his hand. 2 Nov r 1806 Evidence Circumstantial Ch Mend[?] Phys 1 § 16 Price A mathematician of considerable celebrity+ has brought forward an argument, by which if it were just, the disprobative force of the species of circumstantial evidence in question would be reduced to little or nothing. Facts highly and indisputably improbable, are what we are accustomed every day to give credence to, and with any practical inconvenience, upon any the slightest evidence. The definition of improbability is to be taken from a source from which it always has been taken—the language—the correct mathematical language of the doctrine of chances. Take any fact whatever let the chances against its happening be to the chances in favour it its happening, as 1000 to one: you can not deny but that this fact is in a very considerable degree improbable. Instead of 1000 to 1, say 10,000 to one, it is now ten times as improbable as before: instead of 10,000 say 50,000, it is now fifty times, it is improbable in the ratio of 50,000 to one. But facts as improbable as this are believed, and turn out to be true every day: and believed and would at any time be believed by any rational man, upon any the slightest evidence: upon the evidence of a paragraph in a newspaper. A lottery is drawn with 50,000 tickets in it: and the first drawn ticket is intitled to a prize. You read that such or such a number has in this way been become intitled to the prize. You make no difficulty in believing it: and yet the chances were 50,000 to 1 against its being the first drawn: so improbable are the facts which the [...?] of men are believing every day without scruple and without error. But suppose instead of 50,000 the tickets were 500,000 or 5,000,000: how prodigious the improbability! But even in this last case would the fact be incredible? incapable of being rendered credible by any number of witnesses? On the contrary you can hardly speak of it as being less credible under these last and highest numbers than it was under the first. In the same way I can make my fact improbable in as high a degree as I please: improbable, if I please in an infinite degree: and still it shall remain not incredible: and in a word perhaps not less credible than at first credible: upon the strength of any ordinary mass of evidence, upon evidence of much less strength than many a mass that is exhibited, and obtain credence, and without prejudice to truth, in truth of justice. + D r Price [...?] 1 D r Price's argument y t facts as improbable in proportion to y e numerical chance ag t the happening not true, since facts in the highest degree improbable not as ag t a particular lottery ticket as drawn a prize are believed upon y e slightest evidence
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Title: [21 Sept. 1803 Evidence Note]Description: 21 Sept. 1803 Evidence Note Instructions Considerations 1. Interests in general Situations Party and witness 4. A cause particularly connected with the actual state of English jurisprudence is the want of the means of commanding the testimony of unwilling witnesses, of witnesses whom possession of the required facts is inferred from their situation, at the time in question, in a word from any other source than information furnished directly or indirectly from themselves. The effect of this deficiency will be most readily and clearly perceived, by the observation of those cases to which it does not extend. On the occasion of those preliminary examinations which have place in the case of prosecutions for such crimes as have been raised by the law to the rank of felonies witnesses /evidence/ of all sorts is brought forward as fast as the lights afforded by one witness serve to indicate the further lights that may be expected from another; and the testimony of witnesses where testimony /evidence/ being of the hearsay kind could not be with propriety received into the mass of evidence of which the grounds of the decision are comprised, may yet in the character of indicative evidence serve to bring to light the testimony of immediate witnesses who being ill disposed to that side of the cause which stood in need of their assistance would not have come forward of themselves, nor would have been brought forward at all but for the indication so obtained. But the greater the number of unwilling witnesses are by the above or any other cause excluded the greater of course must be the number of willing witnesses in proportion to the whole number brought forward and considered.
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