nations affords lamentable memorials of judicial murders, the natural consequences of such mistaken and degrading views. Without adverting to other reasons, it is conclusive against all departure by the Supreme Being from the ordinary course of his administration in cases of this nature, that so many instances of erroneous conviction and execution have occurred in all ages and in all countries.

The course of external nature, and the mental and physical constitution of man, and his actions and moral and mechanical relations, are the only true sources of those facts which constitute circumstantial evidence.

In every inquiry into the truth of any alleged fact, as to which our means of judgment are secondary facts there must exist relations and dependencies, which are inseparable from the principal fact, and which will commonly be manifested by external appearances. No action of a rational being is indifferent or independent; and every such action must necessarily be connected with antecedent, concomitant, and subsequent condi[*35] tions of mind, and external circumstances, of the actual existence of which, though it may not invariably be apparent, there can be no doubt.

A crime, so far as it falls within the cognizance of human tribunals, is an act proceeding from a wicked motive; it follows therefore that in every such act, there must be one or more voluntary agents; that the act must have corresponding relations to some precise moment of time and portion of space; that there must have existed inducements to guilt, preparations for, and objects and instruments of crime;—and that these, the means of disguise, flight, or concealment, the possession of plunder or other fruits of crime, and innumerable other particulars connected with individual conduct, and with moral, social, and physical relations, may afford

materials for the determination of the judgment. It would be impracticable to enumerate the infinite variety of circumstantial evidentiary facts, which of necessity are as various as the modifications and combinations of events in actual life. "All the acts of the party, all things that explain or throw light on these acts, all the acts of others relative to the affair, that come to his knowledge and may influence him; his friendships and enmities, his promises, his threats, the truth of his discourses, the falsehood of his apologies, pretences and explanations; his looks, his speech, his silence where he was called to speak; everything which tends to establish the connection between all these particulars ;every circumstance, precedent, concomitant, and subsequent, become parts of circumstantial evidence. These are in their matter infinite, and cannot be comprehended within any rule, or brought under any classification."

Evidentiary facts of a circumstantial nature are susceptible only of a very general arrangement, into two classes; namely, first, moral indications, afforded by the relations, *and language, and conduct of the [*36] party; and, secondly, facts which are apparently extrinsic, and mechanical, and independent of moral conduct and demeanor: and each of these classes of facts may be further considered, as such facts are inculpatory or exculpatory. But this division, indefinite as it is, is grounded upon the apparent rather than the real qualities of actions, and cannot be regarded as strictly accurate; since all the actions of a rational agent are prompted by motives, and are therefore really moral indications, though it be not always practicable to develope their moral relations.

(b) Burke's Works, ii. 623.

*CHAPTER III.

INCULPATORY MORAL INDICATIONS.

[*37]

ALTHOUGH, for reasons which have been explained, any enumeration of facts as invariably conjoined with authoritative presumptions would be useless and nugatory, it is important in illustration of the general principles which determine the relevancy and effect of circumstantial evidence, to notice some particulars of moral conduct, of frequent occurrence in courts of criminal jurisdiction, which are popularly, and on that account judicially considered as leading to important and well-grounded presumptions.

These circumstances may be considered under the heads of motives to crime, declarations indicative of intention, preparations for the commission of crime, possession of the fruits of crime, refusal to account for appearances of suspicion, or unsatisfactory explanations of such appearances, evidence indirectly confessional, and the suppression, destruction, simulation, and fabrication of evidence.

SECTION 1.

MOTIVES TO CRIME.

As there must naturally pre-exist a motive to every human action, it is proper to comprise in the class of moral indications, those particulars of external situation which are usually observed, under given circumstances to operate as motives and inducements to the commis

sion of crime, as well as such more unequivocal indications from *language and conduct as directly and pointedly manifest a relation between the deed and the mind of the actor.

[*38]

Motives are with relation to moral conduct what physical power is to mechanics; and both of these kinds of impulse are equally under the influence of known laws. But in reasoning upon motives and their resulting actions, it is impracticable to obtain the same sure data, as when material phænomena only are involved, since it is not possible to discover all the modifying circumstances of human conduct, or to assign with unerring certainty the true character of the motives from which they spring. Nevertheless, we naturally, reasonably, and safely, judge of men's motives by their conduct, as we conclude from the nature of the stream the qualities of the fountain whence it proceeds.

An evil motive constitutes in law as in morals, the essence of guilt; and the existence of an inducing motive for the voluntary acts of a rational agent is assumed as naturally as secondary causes are concluded to exist for material phænomena. The predominant desires of the mind are invariably followed by corresponding volitions and actions. It is therefore indispensable, in the investigation of moral actions, to look at all the surrounding circumstances which connect the supposed actor with other persons and things, and may have influenced his motives.

The usual inducements to crime, are the desire of avenging real or fancied wrongs,-of obtaining some object of desire which rightfully belongs to another,— or of preserving reputation, either that of general character or the conventional reputation of sex or profession. Selfishness and malignity are subtle as well as importunate casuists; and even if it were possible to

enumerate the infinite ways in which they lead to action, it would be irrelevant to do so, since the subject properly belongs to a distinct department of moral science. It is always, however, a satisfactory circumstance of corroboration, when in connection *with convinc[*39] ing facts an apparently adequate motive can be assigned; but, as the operations of the mind are invisible and intangible, it is impossible to go further, and there may be motives which no human being beside the party himself can divine. Undue or even great stress must not be laid upon the existence of circumstances supposed to be indicative of motives; nor ought it in any case to supersede the necessity for the same quantity of proof, as would be deemed necessary in the absence of all evidence of such a stimulus. Suspicion-too readily excited by the appearance of supposed inducements-is incompatible with that even and unprejudiced state of mind, which is indispensable to the formation of correct and sober judgment. While true it is, that "imputation and strong circumstances lead directly to the door of truth," it must also be borne in mind, that

Trifles, light as air,

Are, to the jealous, confirmation strong
As proofs of holy writ."

To penetrate the mind of man, is totally out of human power; and circumstances which apparently present powerful motives, may never have operated as such. Who can say, that some "uncleanly apprehensions,' some transient thoughts of sinister aspect,-in the dimness of moral light momentarily mistaken for good, may not unbidden float across the purest mind? And how often is it that man has no control over circumstances of apparent omnipotence over his motives! But not