23 * 24 trary, and cannot be 'reduced to positive rules. It ha pens, sometimes, that the most probable things are false for, if they were always separated from falsehood, the would be certain, and not probable.-Or, as rendered b some other translators, The most probable things, sometimes prove false; be cause, if they were exempt from falsity, they would not b probable, but certaint. It is likely several things may happen, which are no likely. The ancient Romans were so sensible of the uncertaint of evidence, and the difficulty of always ascertaining th guilt of the prisoner, that their form of judgment, (or ver dict of the jury as we would style it,) merely expressed that he appeared to have done it, fecisse videtur. It is not the fact, always, that constitutes the *guilt, bu the opinion of the judge. "What have the laws ordere in such a case?" was asked of an advocate of Byzantium "What I please," was the answert. The end of a proof, is to establish the matter in debate In every case, whether by direct proof, or by that of cir cumstantial evidence, the jury ought always to be fully satisfied of the guilt of the prisoner, before they retur such a verdict. It is immaterial what the proof is, if it i not believed, and brings conviction to the mind of the jury. It has been, of late years, a favourite theme, to descan upon the certainty of circumstantial evidence. The prac tice of the law, like other things, has its prejudices; and the name of an eminent man, the success of a particular trial, will sometimes give sanction to a false theory. Circumstances, it is said, cannot lie. This is very true; but witnesses can. And from whom do you obtain circumstances, but from witnesses? Thus, you are liable to two deceptions: first, in the tale told by the witness; and, secondly, in your own application of those circumstances. Where a fact is positively sworn *to, as seen by the wit +Aristotle, Vide Bayle Dict. Agathon. ness, the conclusion or inference to be drawn from it, is generally obvious. But, where the inference is to be drawn from a long train of circumstances, it is a matter of judgment; it is an exercise of the understanding; and, as all men do not understand alike, very opposite conclusions are sometimes drawn from the same shades of probability. When the ancient prudence of the law denied to a prisoner the benefit of counsel, on a capital charge, to plead for him, it was understood that the proof should be so clear, as to be self-evident to the jury. It was understood that the judge should be counsel for the prisoner; that is to say, that he should see that the process was fair and regular, and that no undue advantages were taken; but that process is vitiated in its vital part, when a false principle is introduced. "A presumption, which necessarily arises from circumstances, is very often more convincing, and more satisfactory, than any other kind of evidence; it is not within the reach and compass of human abilities to invent a train of circumstances, which shall be so connected together as to amount to a proof of guilt, without affording opportunities of contradicting a great part, if not all, of these circumstances."-(Charge of Mr. Justice Buller, on the trial of Captain Donnellan.) * deny the position. I maintain, that the theory is repugnant to the received principles of jurisprudence; as known to the best foreign writers on the law of evidence. I maintain, that it is not warranted by experience,-the greatest test of every rule, the proof of proofs. And I may further assert, that it is new to the practice of the English law. First, I shall show, that the theory is repugnant to the received principles of jurisprudence, as known to the best foreign writers, on the law of évidence. The first to whom I shall refer is Mascardus, a writer of great eminence on the general theory of proof; regarding which, he has published four volumes. "Proof by evidence of the thing, is superior to every * 25 * 26 *27 other; and of all different kinds, none is so great as which is made by witnesses deposing to what they seen."† "Proof, by presumption and conjectures," he obse in another place, "cannot be called a true and pro proof." *The work of Menochius is entirely dedicated to doctrine of presumptions or circumstantial evidence ; although he displays that partiality for this species proof, which is natural to one who has dedicated his at tion to a particular subject, yet, in the very first chapte his work, he observes, that "the proof or credence wh arises from the testimony of witnesses, is superior to other." I shall not think it necessary to load this essay quotations from other writers on the civil law; the ab two possess the most eminent authority of any on the s ject of evidence. But the same opinion is expressed every other author, whom I have had occasion to consu no one has maintained the absurd position, that circu stances cannot lie; or, that conjectural proof is superio that of ocular demonstration. Secondly. I maintain, that it is not warranted by perience, the great test of every rule. It might appear invidious, to carry reference to cases modern occurrence, where fatal mistakes have been disc vered of persons too hastily convicted on mere circumsta tial evidence; *the history of the judicial proceedings this and in every other country, will afford too many illu trations. Some cases of this kind will be found well illustrated + Probatio per evidentiam rei omnibus est potentior, et inter omnes ej generis major est illa, quæ fit per testes de visu. (Mascardus de Proba tionibus, v. 1. q. 8. n. 8.) Probatio per presumptiones et conjecturas dici non potest vera et pro pria probatio. Probatio seu fides quæ testibus fit, ceteris excellet. (Menochius d Præsumptionibus, l. 1. q. 1.) Lord Chief Justice Hale's Pleas of the Crown, vol. 2. p. 289.† Various instances occur, of the fatal error having been too late discovered; but who can say, how many instances have occurred, where the mistake has never been discovered? It has often happened, that the real murderer has confessed the fact for which the innocent man has suffered; but, as real murderers do not always confess when innocent men suffer, it is impossible to say to what length this dangerous doctrine may have been carried. Thirdly. I have further to observe, that this principle is new to the practice of the English law. That great collection of criminal cases, which bears the name of the State Trials, contains a vast fund of legal knowledge. The opinions of the judges, however, as expressed in state prosecutions, are not always to be regarded as law, until we reach the period of the revolution. *New enactments of the legislature have changed some part of the law, and the improving experience of time has altered others. The first notice to be found of this principle, in sound and wholesome times, is on the trial of a Miss Blandy, for poisoning her father,--before Mr. Baron Legge, in 1752. The judge, in summing up the evidence to the jury, declares that circumstances are more convincing and satisfactory than any other kind of evidence; because "facts," he says, "cannot lie." That facts cannot lie, is sound logic no doubt. Men only lie. But as we only know facts through the medium of witnesses, the truth of the fact depends always upon the truth of the witness; so that, although he furnishes us with a thousand facts, it is of no consequence, if he himself is unsound. The next occasion on which this doctrine appears, is on + See Appendix. 28 * 29 * 30 the celebrated trial of Captain Donnellan, in 1781, bet The trial in question, will afford a most unparalleled Justration of the truth of this observation; it will show fallibility of circumstances, and the very opposite cond sions which different men will draw from the same appe ances. . I shall here give the general shape of the case : If shape it might be called, which shape had none,- Or, substance might be called, which shadow seemed. Sir Theodosius Boughton, a young man of a delicate co stitution, had sent to a country apothecary's shop for draught of medicine. Different phials appear to have be in his chamber, at the time he took the draught; whi was intended to be a composition of rhubarb, jalap, ai lavender water. He was suddenly seized with convulsions in his stomac and foaming at the mouth; and expired before he coul give any explanation. On rinsing one of the phials, th sediment gave the effluvia of laurel water, which is know to be a strong poison. Convulsions, foaming at the mouth and sudden death, are the natural effects of that liquid. But every man who dies in that way, is not, therefore poisoned. The apoplexy will produce the same effects and appearances: of which disease, the father of the young man was known to have died. No evidence whatever was produced as to the existence of the laurel water. |