The Making of Arguments Part 11

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 establishing 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, establishing 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, shirt 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.

It is obvious, therefore, that to question a man's evidence is not always to call him a liar; in most cases it is rather to question the accuracy of his inferences from such part of the facts as he actually grasped. In science no important observation is accepted until the experiments have been repeated and checked by other observers. Indeed, most of the progress of science is due to the repet.i.tion of experiments by observers who notice some critical phenomena which their predecessors have missed.

With this qualification, that human observation is always fallible, good direct evidence is on the whole the most convincing evidence that you can use. If you can establish a fact by the mouths of trustworthy witnesses, making your readers recognize that these witnesses had good opportunities of observation and a competent knowledge of the subject, you will generally establish your point. In case of an accident in a street car it is the custom of many companies to require their conductors to take down immediately the names of a few of the most respectable-looking of the pa.s.sengers, who may be called as witnesses in case of a lawsuit. All the observations of science, and most of the facts brought before juries in courts of law, as well as the mult.i.tude of lesser and greater facts which we accept in everyday life, get their authority from this principle.

In the arguments of school and college you may not make much use of direct evidence, for they do not often turn on single, simple facts.

Even here, however, cases arise where you must call in the direct testimony of witnesses. If you were arguing that secret societies should be abolished in a certain school, and wished to show that such societies had led to late hours, playing cards for money, and drinking, you would need direct evidence. If you were arguing that the street railroad company of your city should be obliged to double track a certain part of its line, you would need direct evidence of the delays and crowding of cars with a single track.

When you are using direct evidence you should make it clear that the person from whom it comes is a competent witness, that he has been in a position to know the facts at first hand, and that, if necessary, he has had the proper training to understand their meaning. In the case of an automobile accident a man who had never run a car would not be the best sort of witness as to the actions of the chauffeur, nor a man who had never sailed a boat as to what happened in a collision between two sailboats. In a scientific matter the observations of a beginner would not carry weight as against those of a man who had used a microscope for many years.

The witness, too, must be shown to be free from bias, whether practical or theoretical. It is a well-known fact that men differ greatly in the clearness of their eyesight in observing the stars, and that men who are gifted with exceptional eyesight may make valuable discoveries with inferior instruments; but if such a man has espoused a theory, say, as to the nature of the rings of Saturn, and is known to defend it pa.s.sionately, his evidence concerning what he had seen is bound to be somewhat discounted.

Even official reports cannot be trusted without scrutiny.

The fact is that many things conspire to make an official report constrained and formal. There is the natural desire of every man to put the best face on things for himself as he sets his case before the government and the world; subordinates must be let off leniently; you must live with them, and it impairs comfort to have them sullen. To make a statement unpleasant to a superior might be construed as insubordination. The public welfare makes it imperative to tell a flattering tale. The temptation is constant to tell not quite the whole truth, and nothing but the truth. There are important suppressions of fact in the official records, none more so, perhaps, than as regards Chancellorsville.[17]

If you happen to be dealing with a historical matter, where the testimony comes from a more or less remote past, and the evidence is sc.r.a.ppy and defective, you must be still more careful.

The great English historian, the late S.R. Gardiner, in his examination of the evidence on the Gunpowder Plot of 1605, wrote as follows about the difficulties of dealing with historical evidence:

It seems strange to find a writer so regardless of what is, in these days, considered the first canon of historical inquiry, that evidence worth having must be almost entirely the evidence of contemporaries who are in a position to know something about that which they a.s.sert. It is true that this canon must not be received pedantically. Tradition is worth something, at all events when it is not too far removed from its source. If a man whose character for truthfulness stands high, tells me that his father, also believed to be truthful, seriously informed him that he had seen a certain thing happen, I should be much more likely to believe that it was so than if a person, whom I knew to be untruthful, informed me that he had himself witnessed something at the present day.

The historian is not bound, as the lawyer is, to reject hearsay evidence, because it is his business to ascertain the truth of individual a.s.sertions, whilst the lawyer has to think of the bearing of the evidence not merely on the case of the prisoner in the dock, but on an unrestricted number of possible prisoners, many of whom would be unjustly condemned if hearsay evidence were admitted. The historian is, however, bound to remember that evidence grows weaker with each link of the chain. The injunction, "Always leave a story better than you found it," is in accordance with the facts of human nature. Each reporter inevitably accentuates the side of the narrative which strikes his fancy, and drops some other part which interests him less. The rule laid down by the late Mr. Spedding, "When a thing is a.s.serted as a fact, always ask who first reported it, and what means he had of knowing the truth," is an admirable corrective of loose traditional stories.

A further test has to be applied by each investigator for himself. When we have ascertained, as far as possible, on what evidence our knowledge of an alleged fact rests, we have to consider the inherent probability of the allegation. Is the statement about it in accordance with the general workings of human nature, or with the particular working of the nature of the persons to whom the action in question is ascribed? Father Gerard,[18] for instance, lavishly employs this test. Again and again he tells us that such and such a statement is incredible, because, amongst other reasons, the people about whom it was made could not possibly have acted in the way ascribed to them. If I say in any of these cases that it appears to me probable that they did so act, it is merely one individual opinion against another. There is no mathematical certainty on either side. All we can respectively do is to set forth the reasons which incline us to one opinion or another, and leave the matter to others to judge as they see fit.

It will be necessary hereafter to deal at length with father Gerard's attack upon the evidence, hitherto accepted as conclusive, of the facts of the plot. A short s.p.a.ce may be allotted to the reasons for rejecting his preliminary argument, that it was the opinion of some contemporaries, and of some who lived in a later generation, that Salisbury contrived the plot in part, if not altogether. Does he realize how difficult it is to prove such a thing by any external evidence whatever? If hearsay evidence can be taken as an argument of probability, and in some cases of strong probability, it is where some one material fact is concerned. For instance, I am of opinion that it is very likely that the story of Cromwell's visit to the body of Charles I on the night after the king's execution is true, though the evidence is only that Spence heard it from Pope, and Pope heard it, mediately or immediately, from Southampton, who, it is alleged, saw the scene with his own eyes. It is very different when we are concerned with evidence as to an intention necessarily kept secret, and only exhibited by overt acts in such form as tampering with doc.u.ments, suggesting false explanation of evidence, and so forth. A rumor that Salisbury got up the plot is absolutely worthless; a rumor that he forged a particular instrument would be worth examining, because it might have proceeded from some one who had seen him do it.[19]

While it is rare to find a man of whom it may justly be said that there is no part.i.tion between his memory and his imagination, yet there are few of us who can be sure of facts in past matters which touch our feelings. We cannot help to some degree reconstructing events as they fade away into the past: we forget those parts of an event which did not at the time sharply touch our imagination, and those which did move us take on an overshadowing importance. Therefore the further away the events which the evidence is to reconstruct, the more care we must take to scrutinize it to see if there are signs of bias.

To test the value of direct evidence, therefore, as to single and simple facts, consider whether the evidence comes from a specifically named source, whether there is any likelihood that the witness may have been honestly deceived in his observation, whether he had a good opportunity to know the facts and a sufficient knowledge of the subject about which he is giving evidence, and, finally, whether he was reasonably free from bias in the matter.

Whenever you use direct evidence, however, it must be direct. To a.s.sert that "every one knows that secret societies in a certain school have led to immoral practices," is not direct evidence, nor to declare that "the best authorities in the city are agreed that the company should lay double tracks on a certain street." Such a.s.sertions are apt to be the most roundabout sort of hearsay. Try cross-examining the next man you hear make this kind of sweeping a.s.sertion, in order to see what he really knows of the facts, and you will soon find how recklessly such a.s.sertions are made. You constantly hear grave statements of facts whose ultimate basis is the imagination of some enterprising newspaper reporter; yet careful and truthful people pa.s.s them on as if they were indubitable.

The news columns of the papers are largely written by young fellows just out of high school, who will declare the whole gospel on subjects with which they have a half hour's acquaintance, yet most people never question their statements. The printed page, whether of a hook, a magazine, or a newspaper, casts a spell on our judgment. Such floating a.s.sertions, with no one to father them, are of no value whatever. If you have to use statements in a newspaper as direct evidence, either take them from a newspaper which is recognized as careful about facts, or else look up the matter in two or three papers, and show that their testimony agrees.

On the other hand, a specific name, with a specific reference to volume and page, will go a long way to give your readers confidence in the evidence you adduce. And rightly so, for one man with a name and address is worth hundreds of unnamed "highest authorities"; and the more specifically you refer to him and to his evidence, the more likely you will be to win over your audience to your view.

A famous and effective example of the use of specific names to give authority to an argument, and the incidental refutation of a vague and loose a.s.sertion, is found in Lincoln's address at Cooper Inst.i.tute, in the first part of which he took up Senator Douglas's statement that "our fathers, when they framed the government under which we live, understood this question just as well as, and even better than, we do now," with the implication that they intended to forbid the federal government to control slavery in the federal territories. Lincoln showed that "our fathers who framed the government under which we live" must be the makers of the Const.i.tution: and then he proceeded to show just what action each one of them, so far as record had been preserved, had taken on the question. Here is a pa.s.sage from his argument:

The question of Federal control in the Territories seems not to have been directly before the convention which framed the original Const.i.tution; and hence it is not recorded that the "thirty-nine," or any of them, while engaged on that instrument, expressed any opinion on that precise question.

In 1789, by the first Congress which sat under the Const.i.tution, an act was pa.s.sed to enforce the ordinance of 1787, including the prohibition of slavery in the Northwestern Territory. The bill for this act was reported by one of the "thirty-nine"--Thomas Fitzsimmons, then a member of the House of Representatives from Pennsylvania. It went through all its stages without a word of opposition, and finally pa.s.sed both branches without ayes and nays, which is equivalent to a unanimous pa.s.sage. In this Congress there were sixteen of the thirty-nine fathers who framed the original Const.i.tution. They were John Langdon, Nicholas Gilman, William S. Johnson, Roger Sherman, Robert Morris, Thomas Fitzsimmons, William Few, Abraham Baldwin, Rufus King, William Paterson, George Clymer, Richard Ba.s.sett, George Read, Pierce Butler, Daniel Carroll, and James Madison.

This shows that, in their understanding, no line dividing local from Federal authority, nor anything in the Const.i.tution, properly forbade Congress to prohibit slavery in the Federal territory; else both their fidelity to correct principle, and their oath to support the Const.i.tution, would have constrained them to oppose the prohibition.

Again, George Washington, another of the "thirty-nine," was then President of the United States and as such approved and signed the bill, thus completing its validity as a law, and thus showing that, in his understanding, no line dividing local from Federal authority, nor anything in the Const.i.tution, forbade the Federal Government to control as to slavery in Federal territory.