limited portion of direct evidence to any fact, *especially [ *255 ] any fact of a criminal kind; and it is with the probative force of such limited portion of direct evidence that we now come to compare that of a chain of evidentiary facts, forming a body of presumptive proof. When the proof is direct, as, for instance, consisting of the positive testimony of one or two witnesses, the matters proved are more proximate to the point at issue, or, to speak more correctly, are identical with the physical facts of it, and leave but two chances of error, namely, those arising from mistake or mendacity on the part of the witnesses: while in every case of mere presumptive evidence, however long or apparently complete the chain, there is a third, namely, that the inference from the facts proved ever so clearly may be fallacious.(f) Besides, there is an anxiety naturally felt for the detection of crimes, particularly such as are either very heinous or peculiar in their circumstances, which often leads witnesses to mistake or exagerate facts, and tribunals to draw rash inferences; and there is also natural to the human mind a tendency to suppose greater order and conformity in things than really exist, and a sort of pride or vanity in drawing conclusions from an isolated number of facts, which is apt to deceive the judgment.(g) Accordingly, the true meaning of the expressions so frequently to be found in our books, that all presumptive evidence of felony should be warily pressed, admitted cautiously, &c.,(h) seems to be, not that it is incapable of [ *256 ] producing a degree of assurance equal to to that *derivable from direct testimony, but that, in the application of presumptive proof, tribunals should be on their guard against the peculiar tendency in the human mind which has just been mentioned.

§ 194. Such are its disadvantages. But then on the other hand, a chain of presumptive evidence has some very decided advantages over the direct testimony of a limited number of witnesses, and which are thus clearly stated by Mr. Bentham :-"First, by including in its composition a portion of circumstantial evidence, the aggregate mass on either side is, if mendacious, the more exposed to be disproved. Every false allegation being liable to be disproved by any such notoriously true fact as it is incompatable with; the greater the number of such distinct false facts, the more the aggregate mass of them is exposed to be disproved; for it is the property of the mass of circumstantial evidence, in proportion to the extent of it, to bring a more and more extensive assemblage of facts under the cognizance of the judge. Secondly, of that additional mass of facts, thus apt to be brought upon the carpet by circumstantial evidence, parts more or less considerable in number will have been brought forward by so many different deposing witnesses. But, the greater the number of deposing witnesses, the more seldom will it happen that any such concert, and that a successful one, has been produced, as is necessary to give effect to a plan of mendacious testimony, in the execution of which, in the character of deposing witnesses, divers individuals are concerned."(i) In short, a conclusion of guilt, deduced from a process of well-conducted rea

(f) 3 Benth. Jud. Ev. 249; Phill. Ev. 459, 8th ed. (g) Phill. Ev. 495, 8th ed.; Bacon, Nov. Organ., aphor. 45. See, also, per Alderson, B., in R. v. Hodge, 2 Lew. C. C. 227. (h) 2 Hale, P. C. 289; Blackst. Com. 358.

(i) 3 Benth. Jud. Ev.251.

soning upon *evidence purely presumptive, may be quite [ *257 ]

as convincing, and in some cases infinitely more so, than one arising from direct testimony.(k)

§ 195. The true principle of criminal jurisprudence is, that, whatever the nature of the evidence against an accused party, his guilt must be essentially connected with the facts proved, so as to flow from them by a species of moral necessity. In other words, conviction must not be grounded on suspicion, or even on a preponderance of probability on the side of delinquency in the accused, but must be based on such a moral certainty of his guilt, as, if not sufficient to destroy all contrary hypotheses, shall at least reduce them within the limits of physical possibility.(1) The nature of this moral certainty is, however, more easily conceived than de- [ *258 ] fined; (m) and, as applied to presumptive proof, will be best understood by attentive consideration of instances where the ends of justice have been successfully attained by well-conducted reasoning on evidence exclusively of that nature. The following cases are added for the purpose of illustration.

§196. Mary Ann Burdock was tried before the Recorder of Bristol, in April, 1835, for the murder of Clara Ann Smith, on the 23rd October, 1833.(n) The deceased, who was an elderly lady, possessed of some property, went to live with the prisoner, who kept a lodging

(k) 1 East, P. C. 223; per Mounteney, B., in Annesley v. The Earl of Anglesey, 17 How. St. Tr. 1430; per Buller, J., Donellan's case; Stewart's Letters to Lord Mansfield, letter 4, p. 16; Paley's Moral Philosophy, b. 6, c. 9.

(1) “You must have such moral certainty of the prisoner's guilt, as convinces your minds, as reasonable men, beyond all reasonable doubt," per Parke, B., to the jury, in R. v. Sterne, Surrey Sum. Assizes, 1843, MS. See, also, 1 Stark. Ev. 559, 560, 575, 3rd ed.; Wills on Circumstantial Evidence, 26; Theory of Presumptive Proof, 63, 64; Sir S. Romilly on the Criminal Law, n. (D), p. 73; per Alderson, B., in R. v. Hodge, 2 Lew. C. C. 228; per Bushe, C. J., in R. v. Forbes and others, printed report, Dublin, 1823, p. 350; per Lord Gillies in R. v. M'Kilney, 33 Ho. St. Tr. 506; Burnett's Criminal Law of Scotland, 522; Greenleaf's Law of Evidence, art. 1. And, however great the aberrations in practice on the continent of Europe, we find the same principle recognised by all the eminent foreign jurists. Huberus, Præl. J. C., lib. 22, tit. 3, n. 4 and 16; Matthæus de Probationibus, c. 2, p. 89 ; J. Voet ad Pand., lib. 22, tit. 3, n. 18; Domat, liv. 3, tit. 6; Works on Chancellor D'Aguesseau, vol. 12, p. 647, where the general principles of presumptive proof are beautifully summed up; Beccaria, s. 7. By the text of the Roman law, prosecutors were to be required to prove their charges, either" idoneis testibus, apertissimis documentis, vel indiciis luce clarioribus." Cod., lib. 4, tit. 19, 1. 25. See, also, the rescript of the Emperor Trajan, Dig., lib. 48, tit. 19, 1. 5; and, for the canon law, see Sanchez de Matrimonio, lib. 10; Disput. 12, No. 40 and 41. (m) Beccaria dei Delitti e delle Pene, Vienna, 1798, s. 7. "For which reason," (continues the author,) "I deem that the best judicial system, which associates with the principal judges assessors not selected, but chosen by lot; for in such matters the conclusion of an untechnical mind, judging by common sense, is safer than that of a learned one, judging by opinion. Where the law is clear and precise, the duty of the tribunal is limited to ascertaining the existence of facts; and although, in seeking the proofs of crime, ability and dexterity are required; although, in summing up the result of those proofs, clearness and precision are indispensable; still, in order to draw a conclusion from them, nothing more is required than plain ordinary good sense-less fallacious than the science of a judge accustomed to seek the proofs of guilt, and who reduces every thing to an artificial system formed by study." What a tribute to our common-law mode of trial by judge and jury, which, independent of its value on constitutional grounds, affords justice a double chance, by uniting the wisdom of a fixed, with the integrity of a casual tribunal, while it avoids in a great measure the inconveniences of both! See, also, the observations of Lord Tenterden, in R. V. Burdett, 4 B. & A. 162, (6 Eng. Com. Law Reps.); Paley's Moral Philosophy, b. 6, c. 8 ; and 1 Stark. Ev. 539, 3rd ed.

(n) Wills on Circumstantial Evidence, 226; Beck's Medical Jurisprudence, p. 869, 7th ed.; Annual Register, 1835, Law Cases, 283.

BEST ON PRESUMPTIONS OF LAW AND FACT.

house in Bristol, and was in rather bad circumstances. October, 1833, the deceased being confined to her bed from a cold, On the 23rd the prisoner was very urgent with her to take some gruel, which she [ *259 ] *refused for some time, but at last consented. Shortly after taking it, she was seized with the symptoms of poisoning from arsenic, and died in about two hours. No medical assistance was procured, nor were her relations made acquainted with her death by the prisoner, who caused her to be privately buried, telling the undertaker that an old lady had died in her house, who had no friends, and that she (the prisoner) must bury her, as the things belonging to her were worth little or nothing. The interment took place on the 31st October, 1833, and nothing further occurred till the month of December, 1834, when some circumstances, especially a change in the prisoner's habits and mode of life, having excited suspicion, the body was disinterred on the 24th of that month, and found to be in a state of considerable preservation. An anatomical exami nation of the body, and chemical analysis of a portion of it, both of which have met with great praise in the medical world, detected the [ *260 ] presence of arsenic, (o) and the prisoner was *accordingly put on her trial. In addition to the facts already stated,

(0) The following is the account of this given by Dr. Beck, Med. Jurisp. 869, 7th ed. "There was some water in the coffin, but the dress was tolerably firm. The face of the corpse was shrunken, and of a dingy yellow colour; the nose depressed, and the orbits sunk. The abdomen was considerably flattened, but the thorax maintained its usual convexity; the integuments of these were converted into adipocire. On opening the abdomen, the alimentary canal was found in a remarkable state of preservation. The intestines contained neither fluid nor gas; and some of their convolutions were matted together. The diaphragm was firm; the lungs and heart shrunk in size, of a dark blue colour; and the latter contained some dark coloured fluid, which was evidently decomposed blood. On separating the duodenum from the small intestines, its mucous membrane was observed to be covered with a large quantity of a viscid, yellow substance. This was carefully removed. The mucous membrane of the mouth and gullet was decomposed; the stomach and intestines, however, were firm, and appeared as little affected as if the person had been dead only a few days in cold weather." The odour was altogether peculiar, removed equally from their smell when examined in the fresh body, and from that of putrefaction. It was almost persistent, so that persons had great trouble in freeing their hands and clothes from it. The lining membrane of these viscera was sineared with a large quantity of an unctuous, yellow substance, which was readily scraped off; and it was seen to be more firm in the parts where the yellow matter was in contact. The large intestines bore the marks of inflammation, being more or less red in various parts. The soft parts of the brain were decomposed. Mr. Herepath, lecturer on chemistry at the Bristol Medical School, took a portion of the matter found in the stomach, applied heat to drive off moisture, and then mixed it with a little carbonate of soda and charcoal, and introduced the whole into a glass tube. On applying heat, metallic arsenic was condensed. The part of the tube that contained the metallic crust was then cut off, heat was freely applied, and, it being now in contact with the atmosphere, arsenious acid (or the white oxide of arsenic) was produced. A portion of this was now dissolved in a small quantity of water, and the solution divided into three parts. To these the ammoniated nitrate of silver, the ammoniated sulphate of copper, and sulphuretted hy drogen were respectively added, and they each gave their characteristic results. (These results are stated infra, Proof of the corpus delicti in cases of poisoning, and are as follow:The ammoniacal nitrate of silver, when brought into contact with arsenic in solution, will give the arsenite of silver; the ammoniacal sulphate of copper will, in like manner, give the arsenite of copper; and a stream of sulphuretted hydrogen gas passing through the solution will throw down the sulphuret of arsenic.) Subsequently, he treated some yellow-tinged matter washed from the stomach as follows:-thirteen grains were boiled in nitro-muriatic acid, which decomposed the animal matter, dissolved the phosphates and the arsenic, and converted the sulphur into sulphuric acid. Ammonia being added in sufficient quantity to super-saturate this acid, the mixture was then acidulated with acetic acid, and filtered. A stream of sulphuretted hydrogen passing over it, precipitated four grains of sulphuret of arsenic. This anatomical and chemical examination cannot be too highly commended, and confers the highest credit on Mr. Herepath, Mr. Kelson, and Drs. Riley and Symonds."

it appeared that she had, some days before the death of the deceased, purchased a quantity of the sulphuret of arsenic, under the groundless pretence of killing rats; and had also hired a girl to wait on the *deceased, whom she especially cautioned several times [ *261 ] to be very careful not to touch any thing after the deceased, falsely representing her as "a dirty old woman, who spat in every thing." It appeared also, by the testimony of this girl, that, before administering the gruel to the deceased, the prisoner brought it into an adjoining room, where she put some pinches of a yellow powder into it, telling the witness that her object in this was to ease the deceased from pain, but that witness was not to tell the deceased that there was any thing in the gruel, as, if she knew there was, she would not take it, and would think they were going to kill her. The prisoner then carefully washed her hands twice. While the deceased was in . the agonies of death, moaning and rolling about in her bed, the prisoner, who was in the room, opened a table-drawer, took out some bits of candle and rushlight, saying to the servant, "Only think of the old bh having these things." This expression she repeated after the death of the deceased, on finding some other articles of small value. She also cautioned the servant, on leaving her house after the death of the deceased, not to tell any thing of the deceased, or that she had lived with her, or that she had ever seen the prisoner put any thing into the gruel, as people might think it curious. On this evidence the prisoner was convicted and executed.

§197. William Richardson was tried at Dumfries, in 1787, for the murder of a young female in the stewartry of Kircudbright, in the autumn of 1786.(p) It appeared from the evidence, that the deceased, who lived with her parents in rather a remote part of the district, was on the day in question left alone in the cottage, her pa[ *262 ] rents having gone out to their harvest field. On their return home, a little after mid-day, they found their daughter murdered, with her throat cut in a most shocking manner. The circumstances in which she was found, the character of the deceased, and the appearance of the wound, all concurred in excluding any presumption of suicide; while the surgeons, who examined the wound, were satisfied that it had been inflicted by a sharp instrument, and by a person who must have held the instrument in his left hand. On opening the body, the deceased appeared to have been some months gone with child; and on examining the ground about the cottage, there were discovered the footsteps seemingly of a person who had been running hastily from the cottage, and by an indirect road, through a quagmire or bog, in which there were stepping-stones. It appeared, however, that the person had, in his haste and confusion, slipped his foot and stepped into the mire, by which he must have been wet nearly to the middle of the leg. The prints of the footsteps were accurately measured, and an exact impression taken of them; and it appeared they were those of a person who must have worn shoes, the soles of which had been newly mended, and which, as is usual in that part of the country, had iron knobs or nails in them. There were discovered also, along the tract of the footsteps, and at certain intervals, drops of blood; and

(p) Burnett's Criminal Law of Scotland, p. 524 et seq.

on a stile or small gateway, near the cottage, and in the line of the footsteps, some marks resembling those of a hand which had been bloody. A number of persons being present at the funeral, the stewart depute, with a view of obtaining some clue to the murderer, called all the men together, to the number of sixty. He then [ *263 ] caused the shoes of each of them to be taken off and measured; and after going nearly through the whole number, they came to the shoes of the prisoner, which corresponded exactly to the impressions, in dimensions, shape of the foot, form of the sole, apparently newly-mended, and the number and position of the knobs. (Up to this moment no suspicion hnd fallen on any one in particular.) The prisoner, on being questioned where he was on the day the deceased was murdered, answered, seemingly without embarrassment, that he had been all that day employed at his master's work. Some other circumstances of suspicion, however, having transpired, he was, in a few days after, taken into custody. On his examination, he acknowledged that he was left-handed; and some scratches being observed on his cheek, he said he had gotten them when pulling nuts in a wood a few days before. He still adhered to what he had said of his having been, on the day of the murder, employed constantly at his master's work, at some distance from the place where the deceased resided; but it appeared that he had been absent from his work about half-an-hour (the time being distinctly ascertained) in the course of the forenoon of that day; that he had called at a smith's shop under pretence of wanting something, which it did not appear he had any occasion for, and that this shop was in his way to the cottage of the deceased. A young girl, who was some 100 yards from the cottage, said, about the time the murder was committed, (and which corresponded to the time that the prisoner was absent from his fellow-servants,) she saw a person, exactly with his dress and appearence, running hastily towards the cottage, but did not see him return, though he might have gone round by a small eminence, which would intercept *him from her view, and which was the very track where

[ *264 ] the footsteps had been traced. His fellow-servants now

recollected, that, on the forenoon of that day, they were employed with the prisoner in driving their master's carts, and when passing by a wood, which they named, the prisoner said that he must run to the smith's shop, and would be back in a short time. He then left his cart under their charge, and they having waited for him about halfan-hour, which one of the servants ascertained, by having at the time looked at his watch, they remarked, on his return, that he had been longer absent than he said he would; to which he replied, that he had stopped in the wood to gather some nuts. They observed at this time one of his stockings wet and soiled, as if he had stepped into a puddle; on which they asked him where he had been. He said he had stepped into a marsh, the name of which he mentioned; on which one of his fellow-servants remarked, that he must have been either drunk or mad, if he stepped into that marsh," as there was a footpath which went along the side of it. It then appeared, by comparing the time he was absent with the distance of the cottage from the place where he had left his fellow-servants, that he might have gone there, com