known usual connexion 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. 1 § 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." 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 994 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 The 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. Act ii., sc. 4. 3 Act ii., sc. 3. whom they were drawn, and that the "circumstances which cannot 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 witnesseses, 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. § 67. Although it is not here proposed to take any part in the 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, Iago's story of the handkerchief, which goaded Othello to madness, will occur to everyone: “LAGO. Have you not sometimes seen a handkerchief, Spotted with strawberries, in your wife's hand? OTH ELLO. If it be that, IAGO. If it be that, or any that was hers, 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. 258 while its very simplicity renders it extremely difficult, on crossexamination, to detect the imposture. It is on this ground that the uncorroborated statements of single witnesses, especially when they testify to atrocious crimes, such as rape, &c., or are known, like accomplices, to be persons of bad character, and to have an interest in the result, have ever been regarded with merited distrust, and are now, in practice, generally deemed insufficient to warrant a conviction. § 68. With respect to cases supported by circumstantial evidence, & 59 ! juries should bear in mind, that, although the number of facts 3 drawn from apparently independent sources renders concerted perjury both highly improbable in itself, and easy of detection if attempted; yet, the witnesses in such cases are more likely to make unintentional misstatements, than those who give direct testimony. The truth of the facts they attest depends frequently on minute and careful observation, and experience teaches the danger of relying implicitly on the evidence of even the most conscientious witnesses, respecting dates, time, distances, footprints, handwriting, admissions, loose conversations, and questions of identity. Yet these are the links in the chain of circumstances, by which guilt is in general sought to be established. The number too of the witnesses, who must all speak the truth, or some link will be wanting, renders additional caution the more necessary. Besides, it must be remembered, that, in a case of circumstantial evidence, the facts are collected by degrees. Something occurs to raise a suspicion against a particular party. Constables and police officers are immediately on the alert, and, with professional zeal, ransack every place and paper, and examine into every circumstance which can tend to establish, not his innocence, but his guilt. Presuming him guilty from the first, they are apt to consider his acquittal as a tacit reflection on their discrimination or skill, and, with something like the feeling of a keen sportsman, they determine, if possible, to bag their game. Innocent actions may thus be misinterpreted,-innocent words misunderstood; and, as men readily believe what they 1 1 Hale, 635. Greenl. on Test. of Evang. 40. 2 R. v. Jones, 2 Camp. 132. 2 anxiously desire,' facts the most harmless may be construed into strong confirmation of preconceived opinions. It is not here asserted that this is frequently the case, nor is it intended to disparage the police. The feelings by which they are actuated, are common to counsel, engineers, surveyors, medical men, antiquarians, and philosophers; indeed, to all persons who first assume that a fact or system is true, and then seek for arguments to support and prove its truth. 3 § 69. But, admitting that the facts sworn to are satisfactorily 60 proved, a further, and a highly difficult duty still remains for the jury to perform. They must decide, not whether these facts are consistent with the prisoner's guilt, but whether they are inconsistent with any other rational conclusion; for it is only on this last hypothesis that they can safely convict the accused.‘ 1 This proposition cannot be more strikingly illustrated, than by referring to the credit that was given by the whole civilized world to the lying telegram which, in October, 1854, announced the fall of Sebastopol. 'Ante, 57. Waters v. Thorn, 22 Beav. 547, 556, 557, per Romilly, M. R. 'R. v. Hodge, 2 Lew. C. C. 227. CHAPTER V. PRESUMPTIVE EVIDENCE. $ 70. THE general head of PRESUMPTIVE EVIDENCE is usually & 61 divided into two branches, namely, presumptions of law, and presumptions of fact. PRESUMPTIONS OF LAW consist of those rules, which, in certain cases, either forbid or dispense with any ulterior inquiry. They are founded, either upon the first principles of justice, or the laws of nature, or the experienced course of human conduct and affairs, and the connexion usually found to exist between certain things. The general doctrines of presumptive evidence are not, therefore, peculiar to municipal law, but are shared by it in common with other departments of science. Thus, the presumption of a malicious intent to kill from the deliberate use of a deadly weapon, and the presumption of aquatic habits in an animal found with webbed feet, belong to the same philosophy, differing only in the instance, and not in the principle of its application. The one fact being proved or ascertained, the other, its uniform concomitant, is universally and safely presumed. It is this uniformly experienced connexion which leads to its recognition by the law, without other proof; the presumption, however, having more or less force, in proportion to the universality of the experience. And this has led to the distribution of presumptions of law into two classes, namely, conclusive and disputable. § 71. Conclusive, or, as they are elsewhere termed, imperative, 62 or absolute presumptions of law, are rules determining the quantity of evidence requisite for the support of any particular averment, which is not permittted to be overcome by any proof that the fact is otherwise. They consist chiefly of those cases 1 Gr. Ev. 14, verbatim. Gr. Ev. 15, verbatim. |