Part 11 (1/2)
CONCLUSION.
Wytown should adopt a commission government like that of Des Moines; since
A. The admitted inefficiency of the city government at present is due to the system of government;
B. The adoption of the plan will result in important economies;
C. The adoption of the plan will result in more efficient service to the city; and
D. The direct responsibility of the mayor and councilmen to the citizens will be a safeguard for the increased power given to them.
CHAPTER III
EVIDENCE AND REASONING
27. Evidence and Reasoning. We have seen in the last chapter that the chief value of making a brief is that in the first place it lays out your reasoning so that you can scrutinize it in detail; and that in the second place it displays the foundations of your reasoning on facts which cannot be contested. In this chapter we shall consider what grounds give validity to evidence and to reasoning.
Where the facts which you bring forward come from persons with first-hand knowledge of them, they are direct evidence; where you must establish them by reasoning from other facts they are indirect evidence, and in the latter case reasoning is an essential part of establis.h.i.+ng the facts. In this chapter, therefore, I shall speak first of direct evidence, then of indirect, and then pa.s.s on to consider a few of the simpler principles which govern reasoning.
In ordinary usage the word ”evidence” is pretty vague, and means anything that will help to establish one side or another of any question, whether of fact or of policy. The word, however, comes ultimately from the law, where it is used for the testimony, either oral or written or material, which is brought in to establish the truth of a.s.sertions about fact: evidence is set before the jury, which under the common law decides questions of fact. In almost any argument of policy, however, we use facts as reasons for or against the policy which is in question, and therefore inmost cases we must use evidence to establish these facts; in many cases, when the facts are established there is no further disagreement about the policy. For example, in arguments for and against state prohibition of the liquor trade, it is an essential fact to determine whether in status where prohibition has been tried it has failed or succeeded, and another essential fact whether under similar conditions a combination of high license and local option has or has not produced less drunkenness. Both are extremely complicated and difficult facts to decide; but if clear evidence can be brought forward to establish them, reasonable-minded people would generally hold as settled the question of the policy which should be adopted. Similarly, an argument for the popular election of senators would undoubtedly make large use of the alleged fact that, in elections by the legislatures, there has been much undue interference by special interests and rich corporations; and the a.s.sertion of this fact would have to be supported by evidence. If this fact were thus clearly established, it would be recognized as a strong reason for a change in our present policy. In the interest of clearness of thought it is worth while to remember this distinction; for, as we shall see, it is only by so doing that we can determine when the ordinary rules of logic do and when they do not apply to the processes of reasoning on which argument is based. I shall speak here, therefore, of the evidence for facts, and of the reasons for or against a policy.
It may be said in pa.s.sing that the highly complicated rules of evidence at the common law have practically nothing to do with our present subject, for they spring from very special conditions, and have been molded by very special purposes. Their object is to establish, so far as is possible, principles which will apply to all cases of a like nature; and they therefore rule out many facts and much evidence which outside the court we all use without hesitation in making up our minds. The jury system has had a curious and interesting history: and judges have built up hedges around juries which seem to the layman merely technical, and unnecessary for the ends of justice.[14] Yet though the sweeping away of many of these rules from time to time shows that there has been and perhaps still is justice in this view, one must remember that the whole common law is based on the application of principles already established by earlier cases to new cases of like character; and that great care must therefore be used not to establish principles which may interfere with the even distribution of justice in the long run (see on this point S.R. Gardiner, p. 103). Even if in single cases the rule of evidence that forbids hearsay evidence works an injustice, yet in the long run it is obvious both that, if hearsay were allowed, litigants would take less trouble to get original evidence, and that much hearsay is thoroughly untrustworthy.
Another reason why the rules of evidence at the common law have little bearing on the arguments of everyday life is like that which makes it unwise to dwell much on the burden of proof: there is no one either competent or interested to enforce the exclusion. a.s.sertion and rumor must be more than palpably vague before the ordinary man will of his own initiative take the trouble to scrutinize it; and even in refuting such material you must make its untrustworthiness very patent if you expect to make ordinary readers distrust it seriously.
28. Direct and Indirect Evidence. When we come now to consider how we establish facts, whether single or complex, we find that, both to aid our own judgment and to convince other people, we rely on evidence. We have seen that evidence falls roughly into two cla.s.ses: either it comes from persons who testify out of their own observation and experience, or it comes indirectly through reasoning from facts and principles already established or granted. The two kinds of evidence run into each other, and the terms commonly used to describe them vary: ”direct evidence” is not infrequently, as in Huxley's argument (see p. 240), called ”testimonial,” and ”indirect evidence,” as in the same argument and in the opinion of Chief Justice Shaw, quoted below, is called ”circ.u.mstantial.” On the whole, however, the opposition between the two cla.s.ses, so far as it is of practical importance, may best be indicated by the terms ”direct evidence” and ”indirect evidence.” The distinction between the two cla.s.ses is made clear in the following extract from the opinion of Chief Justice Shaw of the Ma.s.sachusetts Supreme Court. It will be noticed that it is the same doctrine as that laid down by Huxley (see p. 240).
The distinction, then, between direct and circ.u.mstantial evidence is this. Direct or positive evidence is when a witness can be called to testify to the precise; fact which is the subject of the issue in trial; that is, in a case of homicide, that the party accused did cause the death of the deceased. Whatever may be the kind or force of the evidence, this is the fact to be proved. But suppose no person was present on the occasion of the death,--and of course no one can be called to testify to it,--is it wholly unsusceptible of legal proof?
Experience has shown that circ.u.mstantial evidence may be offered in such a case; that is, that a body of facts may be proved of so conclusive a character, as to warrant a firm belief of the fact, quite as strong and certain as that on which discreet men are accustomed to act in relation to their most important concerns....
Each of these modes of proof has its advantages and disadvantages; it is not easy to compare their relative value. The advantage of positive evidence is, that you have the direct testimony of a witness to the fact to be proved, who, if he speaks the truth, saw it done; and the only question is, whether he is ent.i.tled to belief. The disadvantage is, that the witness may be false and corrupt, and the case may not afford the means of detecting his falsehood.
But in a case of circ.u.mstantial evidence where no witness can testify directly to the fact to be proved, you arrive at it by a series of other facts, which by experience we have found so a.s.sociated with the fact in question, as in the relation of cause and effect, that they lead to a satisfactory and certain conclusion; as when footprints are discovered after a recent snow, it is certain that some animated being has pa.s.sed over the snow since it fell; and, from the form and number of the footprints, it can be determined with equal certainty, whether it was a man, a bird, or a quadruped. Circ.u.mstantial evidence, therefore, is founded on experience and observed facts and coincidences, establis.h.i.+ng a connection between the known and proved facts and the fact sought to be proved.[15]
Under the head of direct evidence, as I shall use the term, would fall the evidence of material objects: in an accident case, for example, the scar of a wound may be shown to the jury; or where the making of a park is urged on a city government, the city council may be taken out to see the land which it is proposed to take. Though such evidence is not testimony, it is direct evidence, for it is not based on reasoning and inference.
29. Direct Evidence. Direct evidence is the testimony of persons who know about the fact from their own observation: such is the testimony of the witnesses to a will that they saw the testator sign it, the testimony of an explorer that there are tribes of pygmies in Africa, the testimony of a chemist to the const.i.tuents of a given alloy, or of a doctor to the success of a new treatment. Every day of our lives we are giving and receiving direct evidence; and of this evidence there is great variety in value.
In the first place, no one should place too much reliance on his own casual observations. It is notorious that we see what we expect to see; and no one who has not deliberately set himself to observe the fact can realize how much of what he thinks is observation is really inference from a small part of the facts before him. I feel a slight tremor run through the house with a little rattling of the windows, and a.s.sume that a train has gone by on the railroad below the hill a hundred yards away: as a matter of fact it may have been one of the slight earthquake shocks which come every few years in most parts of the world. The mistakes that most of its make in recognizing people are of the same sort: from some single feature we reason to an ident.i.ty that does not exist.
Of recent years psychologists have set themselves to getting some accurate facts as to this inaccuracy of human observation, and various experiments have been tried. Here is an account of one:
There was, for instance, two years ago in Gottingen a meeting of a scientific a.s.sociation, made up of jurists, psychologists, and physicians, all, therefore, men trained in careful observation.
Somewhere in the same street there was that evening a public festivity of the carnival. Suddenly, in the midst of the scholarly meeting, the doors open, a clown in highly colored costume rushes in in mad excitement, and a negro with a revolver in hand follows him. In the middle of the hall first the one, then the other, shouts wild phrases; then the one falls to the ground, the other jumps on him; then a shot, and suddenly both are out of the room. The whole affair took less than twenty seconds. All were completely taken by surprise, and no one, with the exception of the president, had the slightest idea that every word and action had been rehea.r.s.ed beforehand, or that, photographs had been taken of the scene. It seemed most natural that the president should beg the members to write down individually an exact report, inasmuch as he felt sure that the matter would come before the courts. Of the forty reports handed in, there was only one whose omissions were calculated as amounting to less than twenty per cent of the characteristic acts; fourteen had twenty to forty per cent of the facts omitted; twelve omitted forty to fifty per cent, and thirteen still more than fifty per cent. But besides the omissions there were only six among the forty which did not contain positively wrong statements; in twenty-four papers up to ten per cent of the statements were free inventions, and in ten answers--that is, in one fourth of the papers--more than ten per cent of the statements were absolutely false, in spite of the fact that they all came from scientifically trained observers. Only four persons, for instance, among forty noticed that the negro had nothing on his head; the others gave him a derby, or a high hat, and so on. In addition to this, a red suit, a brown one, a striped one, a coffee-colored jacket, s.h.i.+rt sleeves, and similar costume were invented for him. He wore in reality white trousers and a black jacket with a large red neck-tie. The scientific commission which reported the details of the inquiry came to the general statement that the majority of the observers omitted or falsified about half of the processes which occurred completely in their field of vision. As was to be expected, the judgment as to the time duration of the act varied between a few seconds and several minutes.[16]
Another type of cases in which our direct testimony would be valueless is legerdemain: we think that we actually see rabbits taken out of our neighbor's hat, or his watch pounded in a mortar and presently shaken whole and sound out of an empty silk handkerchief; and it is only by reasoning that we know our eyes have been deceived.