In the first chapter of her book Jane Austen’s Art of Memory (1989), Jocelyn Harris comments, “It would be remarkable if Jane Austen knew nothing of [John] Locke, whose Essay [concerning Human Understanding] was the most influential book of the eighteenth century, except for the Bible” (2).  Harris goes on to cite the “reprinting . . . several times . . . in the eighteenth century” of Locke’s Of the Conduct of the Understanding (1706) and Some Thoughts Concerning Education (1693).  In addition, she suggests that the purported appeal of many of Locke’s core arguments and concepts to a woman author at the turn of the nineteenth century ought to encourage one to read Austen’s novels in part as “transformations” of Locke’s ideas (188).  There is a slight defensiveness in Harris’s phrasing, as if she is countering an expected assumption that Locke might not have been an influence on Austen.  But it soon became common enough to link Austen to British empiricism, so that Peter Knox-Shaw’s study of Jane Austen and the Enlightenment, published in 2004, lamented only that Shaftesbury and Hutcheson had gotten more attention than Hume and Smith (7).  In the ensuing years, Knox-Shaw’s implicit call has been answered numerous times.1  The notion of an empiricist Austen is thus fairly well established now.

Empiricism in Austen’s time was also inextricable from certain legal developments, especially in the law of evidence.  While a growing body of scholarship has emphasized the relationship between Austen’s fictions and the law, these studies have not yet engaged theories of evidence, which was changing fundamentally in both theory and statute from the 1750s to the 1890s; scholars instead generally address themselves to certain specific laws or legal areas, especially those involving inheritance, property, and marriage.2  My paper hopes to begin a slightly different inquiry by examining how Austen’s novels, and particularly Emma (1815), might engage not just British empiricism but also evolving British evidence law, which was itself directly influenced by British empiricism and the increasing cultural penetration of empiricist ideas.3  After briefly tracing the explicit links between the notion of evidence in key works of British empiricism and in eighteenth- and nineteenth-century treatises of evidence law, I shall turn to the manner in which the delineation of evidence in those treatises provides an intriguing frame for reconsidering some of Austen’s novels.  Emma in particular explores empiricism as an epistemology or useful paradigm, and its empiricism is also enmeshed in scenes legible as legal proceedings and testimony:  as scenes of “giving evidence.”  Emma as a novel thus shows perhaps the most important social chronicler of her time grappling with the powerful cultural impacts of empiricist understandings of evidence. 

John Locke by
Godfrey Kneller

The rudiments of empiricist thought can readily be seen in Austen’s fiction, where they are crucial to understanding her use of legal contexts.  One might begin briefly with Locke’s delineation of the limits of human knowledge in his Essay concerning Human Understanding (1689).  Apart from our “knowledge of our own Being” and of “the Existence of a GOD,” Locke declares, “The Knowledge of the Existence of any other thing we can have only by Sensation” (630, emphases in original).  Ian Watt would later claim that this bedrock idea permitted what he called “the rise of the novel” in the first place, for it is this sort of theory of knowledge that prescribes a literature of observation rather than one of pure imaginative fancy (12).  And every time one reads, in an Austen novel, the meticulous observation of one character by another, and deductions based thereon, or the emphasis on the need to learn from first-hand experience, or the need to temper fancy with actual empirical knowledge, one encounters the legacy of empiricist thought. 

Empiricist epistemology is similarly at work when we have no direct knowledge but must instead rely on report from others, and these situations are paramount in legal contexts.  Locke’s emphasis on the empirical here turns to testimony adjudicated by one’s own experience of the world and by the credit one gives the bearers of the report.  The use of experience to evaluate testimony will become crucial in both the rules of evidence in nineteenth-century England and in Austen’s fiction.  Locke explains the dilemma this way: 

If I my self see a Man walk on the Ice, it is past Probability; ’tis Knowledge.  But if another tells me he saw a Man in England in the midst of a sharp Winter, walk upon Water harden’d with cold; this has so great conformity with what is usually observed to happen, that I am disposed by the nature of the thing it self to assent to it, unless some manifest suspicion attend the Relation of that matter of fact.  But if the same thing be told to one born between the Tropicks, who never saw nor heard of any such Thing before, there the whole Probability relies on Testimony:  And as the Relators are more in number, and of more Credit, and have no interest to speak contrary to the Truth; so that matter of Fact is like to find more or less belief.  Though to a Man, whose Experience has always been quite contrary, and has never heard of any thing like it, the most untainted Credit of a Witness will scarce be able to find belief.  (656) 

I will draw more explicit links between this passage and some legal and fictional echoes of it in Austen, but the important things to note in it for now are that a) there are things we cannot know empirically yet on which we must make judgments; and b) our ability to make such judgments will be mediated by both our own experience of the world and the extent to which we can trust reports from others. 

The sensory epistemology and terms advanced by Locke’s Essay have been mirrored in legal contexts and rules of evidence ever since, especially in the British system.4  Lockean empiricism has in fact been the foundation of evidence law as we continue to know it.  “Evidence scholars,” William Twining has argued, “have almost without exception adopted a conception of ‘rational’ fact-finding that comes from a single philosophical tradition, English empiricism, as exemplified by Locke” and others (199).  Much of the credit for the introduction of empiricist philosophy into the law of evidence must go to Sir Geoffrey Gilbert’s foundational Treatise of the Law of Evidence, which was first published in 1754, went through seven editions by 1801, and became a much referenced authority for legal practitioners.  As Christopher Allen has pointed out, “For much of the eighteenth century there was no serious rival” to Gilbert’s treatise, a position in which Gilbert persisted until the middle of the 1800s, when his Evidence “was superseded by new treatises, of which the most popular were written by Peake, Phillipps, Starkie, and Best” (2).  Gilbert first brought a philosophical grounding in empiricism into his elaborations of evidence law as he amplified the centrality of firsthand, direct hearing and sight in the giving of oral evidence.  As Alexander Welsh reminds us, Gilbert’s essay cites Locke “on its first page” (14).  And an expanded 1791 edition of Gilbert’s Evidence edited by Capel Lofft even contains, “prefixed,” Gilbert’s own “Abstract of Locke’s Essay” (first published in 1709), as if Locke were still deemed essential to understanding both Gilbert and the idea of evidence.  Gilbert writes, at the outset of his groundbreaking treatise, “Now this, in the first place, is very plain, that when we cannot see or hear any thing ourselves, and yet are obliged to make a judgment of it, we must see and hear by report from others; which is one step further from demonstration, which is founded upon the view of our own senses; and yet there is that faith and credit to be given to the honesty and integrity of credible and disinterested witnesses . . .” (3). 

The role of the senses for Gilbert, as for Locke, includes both the direct experience of an act and the indirect “report from others,” and Gilbert suggests that the difficult navigation of these various forms of evidence is a problem not just in courts of law but for our conducting “much of the business of civil life.”  The difference between being an eyewitness or hearing something firsthand and hearing only reports from others is a central problem of Sense and Sensibility (1811) and Emma, for example, as is the challenge of adjudicating between contradictory accounts and of weighing the merits of individual acts of witnessing.  While these issues had all been broached by Locke and Hume (Nicole Coonradt has elaborated on Hume’s contributions in her discussion of Sense and Sensibility), Austen’s novels offer a legal context that evokes the concerns of Gilbert’s Law of Evidence and the multitude of later treatises on evidence law, such as Thomas Starkie’s Practical Treatise of the Law of Evidence (1824).  I would suggest, then, that we can view Emma not just for its debt to British empiricism but also for its engagement with the legal and social contexts of such empiricism, legal contexts at work in numerous scenes in the novel and in the terminology of both narrator and characters. 

As students are quick to note when we discuss certain passages from Sense and Sensibility in class, legal(istic) terminology appears at times quite powerfully in the novel.  Such terminology is no less common in Emma.  Often, these are words that the law shares with the philosophers of empiricism:  terms like “conviction,” “detect,” “evidence,” “judge/judgment,” “prove/proof,” “suspect/suspicion/suspicious,” “testimony,” or “witness.”5  The words “judge” (or variants, such as “judgment”) and “proof” actually appear more times in Emma than in any of Austen’s other novels, both in totals and rates of occurrence.  (Emma uses a form of “judge” 80 times, or approximately once every 2,000 words in a novel of 160,993 words, and uses “proof” 32 times.  In terms of rate of occurrence, Sense and Sensibility and then Mansfield Park are not far behind, for the word “judge” and its variants.)  And yet even as these words inhabit conversations devoid of immediate legal purposes, Austen’s narrator nevertheless often endows them with legalistic shadings.  In so doing, she suggests much like Gilbert did the extent to which one’s social life, fiction, and the law were all similarly caught by the need to form accurate judgments based on acts of witnessing and testimony as well as the extent to which such empiricist thinking and legal paradigms had penetrated quotidian experience. 

A prime example of just such a scene of judgment occurs in volume 3, during the climactic conversation between Harriet and Emma over whether Mr. Knightley has a romantic interest in Harriet.  The entire passage is rife with language common to both general knowledge-inquiry and legal proceedings.  Harriet and Emma reveal their “suspicion[s],” and Emma is carried by “a strong sense of justice by Harriet” and by what “justice require[s]” of her (407–08).  Each character speaks from what she has “observed” (409), a word much used by Locke and repeated several times by Austen’s narrator.  And as Emma listens to Harriet explain why she believes that Knightley might like her, the narrator describes the scene in language that recalls legal proceedings: 

Harriet, who had been standing in no unhappy reverie, was yet very glad to be called from it, by the now encouraging manner of such a judge, and such a friend as Miss Woodhouse, and only wanted invitation, to give the history of her hopes with great, though trembling delight.—Emma’s tremblings as she asked, and as she listened, were better concealed than Harriet’s, but they were not less.  Her voice was not unsteady; but her mind was in all the perturbation that such a development of self, such a burst of threatening evil, such a confusion of sudden and perplexing emotions, must create.—She listened with much inward suffering, but with great outward patience, to Harriet’s detail.—Methodical, or well arranged, or very well delivered, it could not be expected to be; but it contained, when separated from all the feebleness and tautology of the narration, a substance to sink her spirit—especially with the corroborating circumstances, which her own memory brought in favour of Mr. Knightley’s most improved opinion of Harriet.  (408–09) 

The scene as scripted casts Emma in the role of judge, evaluating and measuring with “corroborating” evidence the validity of Harriet’s evidence, which Emma must separate out from the fraught form of its delivery.  And indeed, two pages later, as Harriet finishes her account, the narrator announces the end with the phrase, “When Harriet had closed her evidence” (411).  Finally, when Frank Churchill writes his lengthy letter to Emma at the end of the novel, he begs her repeatedly to “[a]cquit” him (439).  Emma, like a few of Austen’s other novels (and particularly Sense and Sensibility, Pride and Prejudice, and Mansfield Park), frequently employs such legalistic language.  Yet in Emma the occasionally legalistic shading of repeated terminology and key scenes are, as I hope to show later, also wedded to the development of character and the overall plot. 

While analyzing some interesting moments of such terminology can get us partway to understanding a potential relationship between Austen’s fiction, empiricism, and evidence law—not just scenes portrayed as “judgments” but also moments labeled as “confessions,” for example—I shall focus at greater length on the manner in which one’s ability to judge of others and of situations is measurable only by one’s empirical experience of the world and knowledge of society.  Recalling Locke’s anecdote of the man walking on ice, we note that Locke, too, measured what we were likely to believe and our sense of a witness’s credibility by how extensive our knowledge of the probable was, based on what we ourselves had seen happen in our own experience.  Such thinking is visible in explicitly legal contexts in Austen’s time, too.  In the introduction to his treatise on evidence, Thomas Starkie notes:  “It is obvious, that the experience which would best enable those whose duty it is to decide on matters of fact, arising out of the concerns and dealings of society, to discharge that duty, must be that which results, and which can only result, from an intimate intercourse with society, and an actual knowledge of the habits and dealings of mankind” (7).  In other words, the more one knows from direct experience of the world—“intimate intercourse with society,” in Starkie’s words—the better a judge one is of what can possibly have happened, in any given scenario.  The idea that the more one has experienced of the world the better one is able to judge in what Starkie calls “matters of fact” and what Locke calls “the existence of any other thing” seems almost trivial and self-evident now.  But the presence of the systematic expression of this idea in the work of Locke and in the evidence treatises following Locke demonstrates that it was not nearly as self-evident in Austen’s time and immediately prior.  The entire first book of the four comprising Locke’s Essay, for example, is a sustained attack on the idea that there are any innate ideas at all, ideas not garnered from experience. 

Indeed Austen’s novels often thematize explicitly the notion that experience calibrates one’s capacity for judgment.  At times they do so subtly, as in the lengthy epistle from Frank Churchill near the novel’s close.  Explaining a quarrel with Jane Fairfax, his fiancée, Frank writes that “‘provoked by such conduct on my side, such shameful, insolent neglect of her, and such apparent devotion to Miss W., as it would have been impossible for any woman of sense to endure, she spoke her resentment in a form of words perfectly intelligible to me’” (441).  Frank’s evaluation of Jane’s response is mediated by his sense of probabilities, based on his experience of how a “woman of sense” typically behaves. 

The manner in which Austen frames the scene I have just described actually presages quite closely how this idea, from Locke via evidence theorists like Starkie, emerged in practice as seen in court records in the nineteenth century.  The judge’s response in the 1886 case of Scott, falsely called Sebright v. Sebright, offers one example.  Sebright, the defendant in this case, had attempted to keep his wife from dissolving a marriage into which she claimed to have been forced, yet he at some point ceased defending himself: 

The Solicitor General explained the non-appearance of the respondent in the witness-box (except for the purpose of making the one statement I have mentioned) by saying that whatever his desire to establish the validity of the marriage and to retain this lady as his wife may at one time have been, her evidence in Court and the dislike she has manifested for him have naturally made the respondent indifferent on the subject now.  No doubt there is force in these observations.  On the other hand, there is much in the evidence which no man possessed of one particle of self-respect would allow to pass uncontradicted if he were able to contradict it.  (Law Reports 30, emphasis mine) 

So, measuring Sebright’s behavior against that of men who, in the judge’s experience, possess self-respect, the judge draws his conclusions about the character and credit of the defendant, in a construction similar to that of Frank Churchill’s probabilistic interpretation of Jane Fairfax’s reaction. 

Other examples are far less subtle, and a few of them occurring crucially in the first volume of Emma emphasize even more boldly the idea that experience must alter one’s judgment by altering the pool of knowledge from which one is able to form judgments. Austen’s novel, as if explaining and clarifying this principle for the reader, thus perhaps offers us a sort of early thesis and arc for the development of its main characters, who will ideally gain experience and thus become more competent judges, and the narrative itself.  Two key examples in Emma demonstrate the assumption that expanded experience leads to more capable judgment.  In the first, Emma attempts to discourage any possibility of romance between Harriet and Robert Martin. Emma tells Harriet, 

“I think, Harriet, since your acquaintance with us, you have been repeatedly in the company of some, such very real gentlemen, that you must yourself be struck with the difference in Mr. Martin.  At Hartfield you have had very good specimens of well educated, well bred men.  I should be surprized if, after seeing them, you could be in company with Mr. Martin again without perceiving him to be a very inferior creature—and rather wondering at yourself for having ever thought him at all agreeable before.  Do not you begin to feel that now?  Were not you struck?  I am sure you must have been struck by his awkward look and abrupt manner—and the uncouthness of a voice, which I heard to be wholly unmodulated as I stood here.”  (32) 

I would note here in particular some words that appeal to a pseudo-scientific and even empiricist sense of things:  “specimens” of “well bred men,” for example, and the physical verbiage of “striking” that is analogous to Locke’s use of words like “impression” to describe the processes of human perception.  But Emma’s essential argument here is that, because Harriet has now experienced more of the world, she will be better positioned to judge Martin for what he is, in Emma’s eyes at least:  socially inferior. 

Just three pages later, a remarkably similar scene continues to invest the novel, in these formative early chapters, with the importance of empirical knowledge and experience as a barometer for sound judgment.  In this instance, it is Mrs. Weston asserting to Mr. Knightley that his deficient experience of the world makes him ill-suited to judge certain aspects of it.  “‘Mr. Knightley,’” she says, “‘I shall not allow you to be a fair judge in this case.  You are so much used to live alone, that you do not know the value of a companion; and, perhaps no man can be a good judge of the comfort a woman feels in the society of one of her own sex, after being used to it all her life’” (36).  What Starkie holds as essential to judging rightly in matters of fact—“an actual knowledge of the habits and dealings of mankind”—is here seemingly playfully reversed by Mrs. Weston, who holds Knightley’s judgment as deficient for not being informed by “an actual knowledge of the habits and dealings of” women. 

These two scenes and many others in the novels of Jane Austen are intriguing for at least one other reason related to the nineteenth-century novel’s mobilization and navigation of questions raised by the issue of evidence.  I am referring here to the notion of character, which other novels later in the nineteenth century will investigate as a way of addressing problems of evidence and empirical knowledge, novels like George Eliot’s Middlemarch (1871–1872) and Anthony Trollope’s Phineas Redux (1873).  Character becomes inextricable from the problem of evidence in two key ways, both in novels and treatises on evidence law:  first, one’s character becomes an issue not just for defendants (e.g., Is this defendant of a character consistent with the commission of this crime?) but also for witnesses called by either party, as a person deemed to be of disreputable character will be less likely to find credit with judge and jury; and, second, an understanding of character comes to express itself as the product of or judgment based on long familiarity with and observation of a person. 

It may seem unnecessary to note that a sense of a person’s character, in Austen’s novels, is founded on observation.  Yet Austen constantly and deftly draws attention to this assumption in her novels, to the extent that her novels begin to emphasize character as a problem.  In the second sentence of Sense and Sensibility, for example, we read that the Dashwoods, “[f]or many generations, . . . had lived in so respectable a manner, as to engage the general good opinion of their surrounding acquaintance” (3).  In other words, they are thought to be good because of the manner in which they have long been seen to comport themselves.  Statements like this one abound, and Austen makes clear that the public’s sense of a person’s or family’s character derives from observed patterns of behavior rather than from some immutable virtue assumed due to other markers, like elevated social status.  In evidence theory at the time, character was attested to in similar ways, as questions of character and reputation were of fundamental importance for serving as either a juryman or a witness (G. Gilbert 24, 126–27), from Geoffrey Gilbert’s The Law of Evidence onward. Starkie even argues in the 1820s that “evidence of reputation,” even evidence that might in other contexts be ruled out as hearsay, is “admissible,” so important is it in legal contexts for determining the credibility and consistency of a witness (84).  In most other contexts, obviously, hearsay evidence was simply excluded from even the consideration of the jury (except where it could be corroborated by other, less dubious evidence). 

Importantly, however, Emma ultimately demonstrates that a person’s character, assessable and accessible only through long-term observation of that person, is not always as consistent or constant a thing as one might believe.  In so doing, Austen offers a more complex understanding of character and of perceptions of character, one that sees character as a function of narrative development over time rather than as a static snapshot at a single given instant in a trial.  Late in the novel, Harriet and Emma open the moment of reckoning from which I quoted at length above, and it begins with a realization of misunderstanding and misperception, as so many reckonings in Austen’s novels do.  Harriet reports to Emma that “‘Jane Fairfax and Mr. Frank Churchill are to be married, and that they have been privately engaged to one another this long while.  How very odd!’” (404).  The narrator continues in a mix of free indirect discourse offering Emma’s thoughts, and omniscient narration limited to Emma’s thoughts. 

It was, indeed, so odd; Harriet’s behaviour was so extremely odd, that Emma did not know how to understand it.  Her character appeared absolutely changed.  She seemed to propose shewing no agitation, or disappointment, or peculiar concern in the discovery.  Emma looked at her, quite unable to speak. 

“Had you any idea,” cried Harriet, “of his being in love with her?—You, perhaps, might.—You (blushing as she spoke) who can see into everybody’s heart; but nobody else—” 

“Upon my word,” said Emma, “I begin to doubt my having any such talent.” 

The phrase I am most drawn to here is “Her character appeared absolutely changed.”  This sentence, just like Mrs. Dashwood’s reference to Willoughby’s “‘departing from his character’” in Sense and Sensibility (79), should give us pause in a novelistic and social context in which character and reputation are often explicitly held to be constructed on the consistency of observed behavior.  The passage premises the idea of consistency of character; one could add to the phrase “Her character appeared absolutely changed” the finishing phrase “based on Emma’s experience of it.” 

If this passage makes anything clear, however, it is that neither character nor judgments of character can remain or have remained unchanged over the course of the novel, or even over the course of this one scene.  Immediately after Emma assesses Harriet’s demeanor as “seem[ing] to propose shewing no agitation, or disappointment, or peculiar concern,” Harriet’s “crie[s]” belie this very assessment.  Moreover, the reader knows by now that Harriet’s judgment of Emma as one “who can see into everybody’s heart” is just as erroneous, as Emma herself acknowledges in this passage and then even more drastically shortly afterward:  “With insufferable vanity had she believed herself in the secret of everybody’s feelings. . . . She was proved to have been universally mistaken” (412–13).  The novel’s realization of the problems attending the perception of character becomes entangled with the development of the protagonist’s own character and thus with the arc of Emma’s plot itself. 

This episode, beginning with the narrator’s noting Emma’s realization that Harriet’s “character appeared absolutely changed,” thus crystallizes the novel’s attempt to grapple with both the problem of character in the forming of judgments and the problem of forming judgments about character (404).  While Emma engages some of the same preoccupations of empiricism and evidence theory in its time and even echoes some of the terms and moments, Austen’s novel finally troubles the problematic assumption of character as consistent.  Inconsistency of character even comes to connote lack of character in Sense and Sensibility, just as it proposes substantial challenges to legal contexts of reputation that rely on an idea of consistently assessable, knowable character in order to compile juries and determine the credibility of witnesses or culpability of defendants.  In the arena of character, as in that of judgment based on both experience and report from others, Austen’s novels mobilize the same complexities as the courts and evidence theorists of her time.  Yet by finding deficient the static conceptions of character assumed in legal contexts, Austen suggests that such conceptions are inadequate both to the demands of narrative, in which character develops, and even more fundamentally to the demands of right knowledge of others.

NOTES

1Michael Giffin notes, for example, that “British Empiricism had become influential at Oxford by George Austen’s time there, was the style of thinking that pervaded Steventon and Chawton, and is a leitmotif in all of Austen’s novels” (12).  See Eva M. Dadlez’s “Aesthetics and Humean Aesthetic Norms in the Novels of Jane Austen” and “David Hume and Jane Austen on Pride: Ethics in the Enlightenment” as well as Nicole Coonradt.  To be fair, before 2004, too, several scholars had traced epistemological or thematic lines from Hume to Austen, including Hans Werner Breunig, Adela Pinch, Nancy Struever, and Tony Tanner.  The links are framed with varying degrees of directness.  Breunig, for example, writes cautiously, “I am far from maintaining that Austen is in a literal sense indebted to Hume.  But there is an undeniable kinship between these two 18th-century authors” (167).  Tanner, at the other extreme, points to the shared terminology of Pride and Prejudice and Locke and Hume—such as the word “impressions,” from the novel’s original title First Impressions—as evidence of a perhaps more direct engagement (105, 108).  Others, like Dadlez, have emphasized Austen’s Humean aesthetics and ethics, and even Knox-Shaw’s discussion of Sense and Sensibility focuses on Humean sympathy rather than on the empiricist epistemology I will consider.  Pinch, too, focuses on feelings, reading Persuasion for the manner in which it can “return us to some of the questions of empiricism that have been, since Hume, shaping the representations of feelings,” and later notes that “searches for the origins of [romantic feeling] always start with Locke and Hume” (10, 17). 

2A notable exception is the 1963 dissertation of David P. Demarest, which traces and lingers on the use of legal language in Austen in order to argue that she links enhanced perception to enhanced morality.  Demarest does not discuss actual legal theory or practice in her time, however.  For studies of Austen and the law, see, for example:  on inheritance, property, and entailment, Deirdre Gilbert, Christine Grover, Sandra Macpherson, and Luanne Bethke Redmond; on game laws Helena Kelly; on women and the law Phoebe Smith; on marriage laws Mary Jean Corbett and Vlasta Vranjes; on poor laws Sheryl Craig; and on Austen and propriety David Kaufmann.  Enid G. Hildebrand takes a more general look at Austen’s treatment of law, as does Richard A. Posner. 

3On the increasing cultural penetration of empiricist ideas, see, for example, Margaret C. Jacob.  George Levine notes Victorian concerns of “the metaphorical extension, implicit already in Hobbes and Locke, of scientific law to social and moral activities” (36).  Yet Struever highlights the ready adaptability of empiricist philosophy to institutions and individuals.  “The pragmatic nature of the eighteenth-century program exemplified by Hume’s Enquiries,” she writes, “helps explain its practical force; the program both shapes intellectual discipline and invests social behavior” (234). 

4Space will not permit extended inclusion of Hume here, though one could also dwell on his influence and on the number of times in Hume’s work that he draws on juridical analogies in explaining evidence.  From the Enquiry concerning Human Understanding (1748), for example: 

I need not mention the difficulty of detecting a falsehood in any private or even public history, at the place, where it is said to happen; much more when the scene is removed to ever so small a distance.  Even a court of judicature, with all the authority, accuracy, and judgement, which they can employ, find themselves often at a loss to distinguish between truth and falsehood in the most recent actions.  (183) 

Or, the assessment of contradictory testimonies, as “not in reality different from the reasoning of a judge, who supposes, that the credit of two witnesses, maintaining a crime against any one, is destroyed by the testimony of two others, who affirm him to have been two hundred leagues distant, at the same instant when the crime is said to have been committed” (178). 

5Though, as cultural historians and language historians like Barbara Shapiro and Jan-Melissa Schramm have stressed, a case can be made that these terms emerged originally from the language of legal or theological trials before their appropriation by empiricist philosophers to describe problems of knowledge.  And, as I noted above, Hume was fond of using courtroom problems as epistemological examples.