the reader, naturally suggests two reflections; first, that, with man's finite knowledge, he should be slow to reject a narrative as incredible, merely because it is beyond, or even contrary to, his own very limited experience; and next, that progress in knowledge is not confined, in its results, to the simple facts ascertained, but has also an extensive influence in enlarging the understanding for the further reception of truth, and in setting it free from many of the prejudices which influence men, whose minds are limited by a narrow field of observation. Thus, Archimedes, deeply imbued as he was with science, might have believed an account of the invention and wonderful powers of the steam-engine, which unscientific Englishmen of the last century would have rejected as incredible and absurd.1 § 63.2 A fifth basis of evidence is the known and experienced § 54 connection subsisting between collateral facts or circumstances, satisfactorily proved, and the fact in controversy. This is merely the legal application, in other terms, of a process familiar in natural philosophy, showing the truth of an hypothesis by its coincidence with existing phenomena. The connections and coincidences in question may be either physical or moral; and the knowledge of them is derived from the known laws of matter and motion, from animal instincts, and from the physical, intellectual, and moral constitution and habits of man. Their force, which will be considered hereafter, depends on their sufficiency to exclude every other hypothesis but the one under consideration. Thus, the possession of goods recently stolen, accompanied with personal proximity in point of time and place, and inability in the party charged, to show how he came by them, would seem naturally, though not necessarily,5 to 1 Abercr. on Intell. Pow., Part 2, § 3, pp. 75, 76. So Voltaire shrewdly observes:-"Là où le vulgaire rit, le philosophe admire; et il rit où le vulgaire ouvre de grands yeux stupides d'étonnement." Vol. 42, p. 142. Gr. Ev. § 11, verbatim. 3 For an amusing example of a fact proved by a long chain of circumstantial evidence, see Voltaire's Zadig, ch. 3. 4 Post, §§ 64-69. 5 Joseph's cup was found in Benjamin's sack, Gen. c. 44, v. 1-17. The amusing story of the Hunchback, in the Arabian Nights, and the no less diverting story of the Baked Head, in Mr. Morier's Hajji Baba, both turn on exclude every other hypothesis, but that of his guilt. But the possession of the same goods at another time and place would warrant no such conclusion, as it would leave room for the hypothesis of their having been lawfully purchased in the course of trade. Similar to this, in principle, is the rule of noscitur a sociis, according to which the meaning of certain words in a written instrument is ascertained by the context. § 64. In considering this subject, it must always be borne in § 55 mind, that in the actual occurrences of human life nothing is inconsistent. Every event, which actually transpires, has its appropriate relation and place in the vast complication of circumstances of which the affairs of men consist; it owes its origin to those which have preceded it; it is intimately connected with many others which occur at the same time and place, and often with those of remote regions; and, in its turn, it gives birth to a thousand others which succeed. In all this system of inter-dependence perfect harmony prevails; so that a man can hardly invent a story, which, if closely compared with all the actual contemporaneous and successive occurrences, may not be shown to be false. From these causes, minds enlarged by long and matured experience, and close observation of the conduct and affairs of men, may, with a rapidity and certainty approaching to intuition, perceive the elements of truth or falsehood in the face itself of the narrative, without any regard to the narrator. Thus, an experienced judge may instantly discover the falsehood of a witness, whose story an inexperienced jury might be inclined to believe. But though the mind, in these cases, seems to have acquired a new power, it is properly to be referred only to experience and observation. § 65.3 In trials of fact, it will generally be found that the factum § 56 probandum is either directly attested by those who speak from their own actual and personal knowledge of its existence, or it is to be an erroneous presumption of guilt arising from recent possession. Smollett's Roderick Random, ch. xxi. 1 Gr. Ev. § 12, in great part. 21 St. Ev. 560; 3 Channing's Works, 133 340. 3 Gr. Ev. § 13, in great part. See, too, inferred from other facts, satisfactorily proved. In the former case, the proof rests upon the second, third, and fourth grounds of belief before mentioned; that is, it depends partly, upon faith in human testimony, as sanctioned by experience;-which faith will be increased or diminished in proportion to the apparent honesty and intelligence of the witnesses, and their opportunities for observation ;-partly, upon the exercise of reason on the consistency of the narratives given by different witnesses;-and here the value of the testimony will vary, according to the number of the deponents, and the apparent absence or presence of collusion;-and partly, upon the conformity of the testimony with experience. In the latter case,that is, when the fact in dispute is to be inferred from other facts satisfactorily established,—the proof rests upon the same grounds, with the addition of the experienced connection between the collateral facts thus proved, and the fact which is in controversy; which connection constitutes the fifth basis of evidence before stated. The facts proved are in both cases directly attested. In the former case, the proof applies immediately to the factum probandum, without any intervening process, and it is therefore called direct or positive testimony. In the latter case, as the proof applies immediately to collateral facts, supposed to have a connection, near or remote, with the fact in controversy, it is termed circumstantial; and sometimes, but not with entire accuracy, presumptive. Thus, if a witness testifies that he saw A. inflict a mortal wound on B., of which he instantly died, this is a case of direct evidence; and, giving to the witness the credit to which men are generally entitled, the crime is satisfactorily proved. If a witness testifies that a deceased person was shot with a pistol, and the wadding is found to be part of a letter addressed to the prisoner, the residue of which is discovered in his pocket, here the facts themselves are directly attested; but the evidence they afford is termed circumstantial; and from these facts, if unexplained by the prisoner, the jury may, or may not, deduce, or infer, or presume his guilt, according as they are satisfied, or not, of the natural connection between similar facts and the guilt of the person thus connected with them. In both cases, the veracity of the witness is presumed, in the absence of proof to the contrary; but in the latter case there is an additional presumption or inference, founded on the known usual connection between the facts proved, and the guilt of the party implicated. This operation of the mind, which is more complex and difficult in the latter case, has caused the evidence afforded by circumstances to be termed presumptive evidence; though, in truth, the operation is similar in both cases. § 66. Much has been said and written respecting the comparative § 57 value of direct and circumstantial evidence; but as the controversy seems to have arisen from a misapprehension of the real nature and object of testimony, and can moreover lead to no practical end, it is not here intended to enter into the lists further than to observe, that one argument urged in favour of circumstantial evidence is palpably erroneous. "Witnesses may lie, but circumstances cannot," has been more than once repeated from the bench, and is now almost received as a judicial axiom. Yet certainly no proposition can be more false or dangerous than this. If "circumstances mean, and they can have no other meaning,-those facts which lead to the inference of the fact in issue, they not only can, but constantly do lie; or, in other words, the conclusion deduced from them is often false. Thus, when at Melita the viper fastened on St. Paul's hand, the barbarians said among themselves, "No doubt this man is a murderer; " but when they saw that no harm came to him, "they changed their minds, and said that he was a god."2 Here, both conclusions were alike false. So, in Macbeth, the master poet of nature has described Lenox, Macduff, and the other chieftains as erroneously assuming, first, that the grooms had murdered the King, because "their hands and faces were all badged with blood, so were their daggers, which unwiped we found upon their pillows: "3 and next, that "they were suborned" by the king's two sons, who had "stolen away and fled." It is no answer to say that these are mere instances of hasty and illogical inferences, which display only the ignorance and presumption of the persons by whom they were drawn, and that the "circumstances which cannot 1 Annesley v. Ld. Anglesea, 17 How. St. Tr. 1430, per Mountenoy, B.; R. v. Blandy, 18 How. St. Tr. 1187, per Legge, B. 2 Acts, xxviii. 3-5. So, when Jacob saw Joseph's coat of many colours stained with kid's blood, "he knew it, and said, 'It is my son's coat; an evil beast hath devoured him; Joseph is without doubt rent in pieces.'" Gen. xxvii. 33. 3 Act ii., sc. 3. 4 Act ii., sc. 4. G lie are such as necessarily lead to a certain conclusion. Who is to decide on this necessity? Clearly those who have also to decide on the fact in issue. Throw a case of circumstantial evidence into the form of a syllogism, and it will be found that the major premiss rests solely on the erring experience of the tribunal to whom it is presented. Besides, these very circumstances must be proved, like direct facts, by witnesses, who are equally capable with others of deceiving or of being deceived. So that in no sense is it possible to say, that a conclusion drawn from circumstantial evidence can amount to absolute certainty, or, in other words, that circumstances cannot lie. 1 § 67. Although it is not here proposed to take any part in the § 58 controversy respecting the comparative weight due to direct and circumstantial evidence; still, it may not be without some advantage to point out briefly the dangers against which juries should especially guard, when called upon to decide cases supported by each of these species of testimony. For instance, in a case sought to be directly established, the witnesses are usually few, and consequently there is the more reason to apprehend conspiracy and fraud; since two or three persons are far more easily found than a larger number, who, from motives of interest or malignity, will combine to aggrandise themselves or to ruin an opponent. Their story, too, being for the most part simple, is readily concocted and remembered, 1 Iago's story of the handkerchief, which goaded Othello to madness, will occur to everyone : "IAGO. Have you not sometimes seen a handkerchief, Spotted with strawberries, in your wife's hand? OTHELLO. It speaks against her, with the other proofs. OTHELLO. Oh! that the slave had forty thousand lives— One is too poor, too weak for my revenge! Now do I see 'tis true." OTHELLO, Act iii., Sc. iii. |