servation, but the observations of mankind at large of every age and country. It would be absurd to disbelieve and reject as incredible the relations of events, because such events have not occurred within the range of individual experience. We may remember the unreasonable incredulity of the king of Siam, who, when the Dutch ambassador told him that in his country the water in cold weather became so hard that men walked upon it, and that it would even bear an elephant, replied, "Hitherto I have believed all the strange things you told me, because I look upon you as a sober, fair man, but now I am sure you lie." (s)

By experience facts or events of the same character are referred to causes of the same kind; by ANALOGY facts and events similar in some, but not in all of their particulars to other facts and occurrences, are concluded to have been produced by a similar cause: so that analogy vastly exceeds in its range, the limits of experience in its widest latitude, though their boundaries may sometimes be coincident and sometimes undistinguishable. It has been profoundly remarked that "in whatever manner the province of experience, strictly so called, comes to be thus enlarged, it is perfectly manifest that, without some provision for this purpose, the principles of our constitution would not have been duly adjusted to the scene in which we have to act. Were we not formed as eagerly to seize the resembling features of different things and different events, and to extend our conclusions from the individual to the species, life would elapse before we had acquired the first rudiments of that knowledge which

sophy, p. 150. Abercrombie's Philosophy of the Moral Feelings,

Prelim. Obs. s. ii.

(8) Locke on the Human Understanding, b. iv. ch. xv. s. 5.

is essential to our animal existence." (t) Every branch of knowledge presents instructive examples of the extent to which this mode of reasoning may be [*12] securely carried. Newton, from having ob

served that the refractive forces of different bodies follow the ratio of their densities, was led to infer the combustibility of the diamond, ages before the mechanical aids of science were capable of verifying his prediction; nor is the sagacity of the conjecture less striking, because this correspondence has been discovered not to be without exception. The scientific observer, from the inspection of shapeless fragments, which have mouldered under the suns and storms of ages, constructs a model of the original in its primitive magnificence and symmetry. A profound knowledge of comparative anatomy enabled the immortal Cuvier, from a single fossil bone, to describe the structure and habits, of many of the animals of the antediluvian world. In like manner, an enlightened knowledge of human nature often enables us, on the foundation of apparently slight circumstances, to follow the tortuous windings of crime, and ultimately to discover its guilty author, as infallibly as the hunter is conducted by the track to his game.

The following pertinent and instructive observations may advantageously close this part of our subject, comprehending, as they do, everything that can be usefully adduced in illustration of the necessity and value of the principle of analogy. "In all reasonings concerning human life, we are obliged to depend on analogy, if it were only from that uncertainty, and almost suspension of judgment, with which we must hold our conclusions. We can seldom obtain that number of instances which is requisite here to establish an inference indisputably.

(1) Stewart's Elements, vol. ii. ch. ii. s. iv.

The conduct of persons or of parties may have been attended by certain antecedents and certain results in the examples before us; still the state of the case may be owing, not so much to that conduct, as to other causes, which are shut out of our view, when our attention is fixed on the particular *examples ad[*13] duced for the purpose of the inference. We must thus be strictly on our guard against transferring to other cases, anything merely contingent and peculiar to the instances on which our reasoning is founded. And this is what analogical reasoning requires and enables us to do. If rightly pursued, it is employed, at once, both in generalizing and discriminating; in the acute perception at once of points of agreement and points of difference. The acmé of the philosophical power is displayed in the perfect co-operation of these two opposite proceedings. We must study to combine in such a way as not to merge real differences; and so to distinguish as not to divert the eye from the real correspondence." (t)

It may be objected, that the minds of men are so differently constituted, and so much influenced by dif ferences of experience and culture, that the same evidence may produce in different individuals very different degrees of belief; that one man may unhesitatingly believe an alleged fact, upon evidence which will not in any degree sway the mind of another. It must be admitted that moral certitude is not the same fixed and unvarying standard, alike in every individual; that scepticism, and credulity, are modifications of the same principle, and that to a certain extent this objection is grounded in fact; but, nevertheless, the psychological considerations which it involves have but little alliance

(t) Hampden's Lectures, ut supra, p. 178.

with the present subject; the argument, if pushed to its extreme, would go to introduce universal doubt and distrust, and to destroy all confidence in human judgment founded upon moral evidence. It is as impossible to reduce men's minds to the same standard, as it is to bring their bodies to the same dimensions; but in the one case, as well as in the other, there is a general agreement and similarity, any wide departure from which is instantly perceived to be eccentric and extravagant. The question is, *not what may be the [*14] possible effect of evidence upon minds peculiarly constructed, but what ought to be its result with men such as the generality of civilized men are.

It is of no moment, in relation to criminal jurisprudence that expression cannot be given to the inferior degrees of belief. The doctrine of chances, and nice calculation of probabilities, cannot, except in a few cases, and then only in a very general and abstract way, be applied to human actions, which are essentially unlike, and dependent upon peculiarities of persons and circumstances, which render it impossible to assign to them a precise value, or to compare them with a common numeral standard; nor are they capable in any degree, or under any circumstances, of being applied to actions which infer legal responsibility. In the common affairs of life, men are frequently obliged, from necessity and duty, to act upon the lowest degree of belief; and, as Mr. Locke justly observes, "He that will not stir, till he infallibly knows the business he goes about will succeed, will have little else to do, but to sit still and perish." (u) But in such cases our judgments commonly concern ourselves, and our own motives, duties, and interests: while in the adminis

(u) Essay on the Human Understanding, b. iv. ch. xiv. s. 1.

.

tration of penal justice, the magistrate is called upon to apply to the conduct of others a rule of action, applicable to a given state of facts, where external and sometimes ambiguous indicia alone constitute the grounds of judgment. In the application of every such rule, the certainty of the facts is pre-supposed, and is its only foundation and vindication; and upon any lower degree of assurance, its application would be arbitrary and indefensible.

[*15]

*CHAPTER II.

CIRCUMSTANTIAL EVIDENCE.

SECTION 1.

ESSENTIAL CHARACTERISTICS OF CIRCUMSTANTIAL EVIDENCE.

THE epithets DIRECT and INDIRECT or CIRCUMSTANTIAL, as applied to testimonial evidence, have been sanctioned by such long and general use, that it might appear presumptuous to question their accuracy, as it would perhaps be impracticable to substitute others more appropriate. But assuredly these terms have frequently been very indiscriminately applied, and the misuse of them, has occasionally been the cause of lamentable results; it is therefore essential, accurately to discriminate their proper application.

On a superficial view, direct and indirect or circumstantial, would appear to be distinct species of evidence; whereas, these words denote only the different modes