SECT. 28.] Modality. 323 



almost inseparably involved in the same enquiry. In this 

 sense of the term, modal difficulties have certainly shown 

 themselves in the department of Law. There have been 

 similar attempts here, encountered by similar difficulties, to 

 -come to some definite agreement as to a scale of arrange 

 ment of the degrees of our assent. It is of course much 

 more practicable to secure such agreement in the case of a 

 special science, confined more or less to the experts, than in 

 subjects into which all classes of outsiders have almost equal 

 right of entry. The range of application under the former 

 circumstances is narrower, and the professional experts have 

 acquired habits and traditions by which the standards may 

 be retained in considerable integrity. It does not appear, 

 however, according to all accounts, as if any very striking 

 success had been attained in this direction by the lawyers. 



28. The difficulty in its scientific, or strictly jurispru- 

 dential shape, seems to have shown itself principally in the 

 attempt to arrange legal evidence into classes in respect of 

 the degree of its cogency. This, I understand, was the case 

 in the Roman law, and in some of the continental systems of 

 jurisprudence which took their rise from the Roman law. 

 The direct evidence of so many witnesses was plena pro- 

 batio. Then came minus plena probatio, then semiplend 

 major and semiplend minor; and by adding together a 

 certain number of half-proofs for instance, by the pro 

 duction of a tradesman s account-books, phis his supple 

 mentary oath full proof might be made out. It was on 

 this principle that torture was employed to obtain a con 

 fession. The confession was evidence suppletory to the cir 

 cumstances which were held to justify its employment 1 .&quot; 



According to Bentham 2 , the corresponding scale in the 



1 Stephen s General View of the 2 Rationale of Judicial Evidence; 



Criminal Law of England, p. 241. Bk. i. ch. vi. 



212 



