are facts of every kind, so that this is only a repetition of the same sophism. Although "circumstances cannot lie," the narrators of them may, and, like witnesses of all other facts, they may be biassed or mistaken. Burke appears to have adopted. without scrutiny, the notion I am combatting. "When circumstantial proof," says he, "is in its greatest perfection—that is, when it is most abundant in circumstances it is much superior to positive proof."* Paley says: "a concurrence of well-authenticated circumstances composes a stronger ground of assurance than positive testimony, unconfirmed by circumstances, usually affords."+ The fallacy of these passages is, that they select an extreme case for the support of a general position : they contrast slender or doubtful cases of positive evidence, with cases of circumstantial evidence of the strongest kind, and calculated to produce the highest degree of assurance. If evidence be so powerful as "necessarily to produce conviction" (in the language of Mr. Justice Buller on the trial of Donellan), it matters not by what kind of evidence the effect is produced: the proving power must be precisely the same whether the evidence be direct or circumstantial. But a judgment based upon circumstantial evidence cannot, in any case, be of a different nature from or more satisfactory than when the same result is produced by direct evidence free from suspicion of bias or mistake. Attempts have been made, more especially by the civilians, but with no advantageous result, to classify and tabulate individual facts under terms expressive of their intrinsic and relative value as presumptions. In matters of property, the laws of every country have created artificial legal presumptions, grounded upon reasons of policy and convenience, to prevent discord and to fortify private right. "The very essence of such matters depends on the arbitrary convention of men. Men act on them with all the power of a creator over his creatures." But in Morals and Jurisprudence, man, as a physical being and as a moral agent-such as he is by natural constitution, and by the influences of social condition-is the subject on which the legislator and the moralist have to operate; and with physical actions merely they have nothing to do. "The presumptions which belong to criminal cases, are those natural and popular * Burke's Works, v. ii., p. 624, ed. 1834. + Moral and Political Philosophy, b. iv., c. 9. + Burke, supra. presumptions which are only observations formed into maxims, like adages and apothegms, and are admitted, when their grounds are established, in the place of proof, where better is wanting, but are always to be overturned by counter proof."* It is impossible, therefore, to lay down arbitrary rules of presumption, where every case must be connected with peculiarities of personal character and concomitant circumstances, and therefore irreducible to any fixed principle. It would be as wise to lay down at Lloyd's positive regulations obliging a captain when within a certain distance of a rock to abandon his vessel. Who can recall without horror the bloody law of James I., which made the concealment by the mother of the death of her illegitimate child conclusive evidence of murder? whereas it affords not the slightest warrant for such a conclusion. Obnoxious enactments of a similar character, to the disgrace of our age, are yet in legal existence; but by a wise ordination, the feelings rebel against all barbarous laws and render them practically a dead letter. Other writers have proposed to divide presumptions into necessary, probable, and slight; but the scheme is fanciful rather than practical, since it is impossible thus to classify more than a very few of the infinite number of circumstances connected with human motives and conduct, and the terms of designation, although not destitute of utility, are yet, from the inherent imperfections of language, unavoidably defective in exactness. The mental and physical constitution of man, and his external relations, are the sources of evidentiary facts. In every inquiry into the truth of an alleged fact, of the existence of which we are required to judge on the foundation of secondary facts, there must exist certain connections and dependencies with the principal fact, which will be manifested by external phenomena. No action of a rational being is indifferent, solitary, or independent, but must necessarily be joined with antecedent and concomitant states of mind, and with external circumstances, and of their actual connection, though it may not be invariably apparent, there can be no doubt. There must be a voluntary agent, the act must have corresponding propinquity to some precise moment of time and portion of space, there must have existed inducing states of mind and material objects of desire; these, the means of flight or disguise, and a thou sand other particulars connected with individual conduct, and with moral, social, and physical relations, afford materials for the determination of the judgment. We assume the existence of an inducing motive for the voluntary acts of a rational agent as naturally and unhesitatingly as we look for secondary causes in material phenomena. The predominant desires of the mind are invariably followed by corresponding volitions and actions. It is indispensable, therefore, that, in cases of imputed guilt, we look at all the surrounding circumstances which connect the supposed actor with other persons and things, and may have influenced his conduct. The passions are great casuists, and to enumerate the infinite ways in which they had to act, even if it were possible, would not be relevant, and would trespass upon a distinct department of moral science. We must not, however, lay undue or even great stress upon the existence of motives, which can never supersede the necessity for precisely the same weight of proof as would be necessary in the absence of evidence of such a stimulus. The external circumstances which seem to present motives, may never have operated on the mind. Suspicion-too readily excited by unfavourable appearances- -is incompatible with that even state of mind which is indispensable to correct and sober judgment. Neither must we expect to discover the existence of motives which, on a just estimate of things, can be regarded as adequate. It is of the very essence of moral weakness that it forms a mistaken estimate of present good; and there must, therefore, be a want of proportion between the objects of desire and the sacrifices made to obtain them. The moral anatomist has, moreover, to encounter other and formidable difficulties in endeavouring to trace the invisible links which connect actions with their impelling motives. The desire of the approbation of our fellow men has a powerful, often a very auspicious, but sometimes a dangerous, influence upon the character. Hence the human mind is subjected to the action of antagonist principles, and the crafty are obliged to assume the semblance of characteristics of which they are utterly destitute, the natural inclination to truth being destroyed by overpowering inducements to dissimulation. It would be impossible to enumerate the infinite variety of circumstantial evidentiary facts, which are necessarily as various as are the modifications and combinations of events in actual life. "All the acts of the party, all things that 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-every thing 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 rules or brought under any classification."* All of these facts and circumstances are, however, susceptible of a general, though not of a perfect, arrangement under two classes ; namely, moral indications afforded by the language and conduct of the party, and secondly, facts which may be termed, for want of a more appropriate term, abstract facts—that is, facts apparently extrinsic and independent of moral conduct. This arrangement, 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, though it be not always practicable to trace the connection between them. These great divisions are capable of reduction to subdivisions, every one of which may be made the centre of an assemblage of curious and instructive cases, many of them of the most extraordinary and tragic interest. But, ample as are my materials, on this occasion I can do no more than thus briefly advert to the practicability of such an arrangement and classification. It is obvious, that, in all questions of moral evidence, where we seek for the hidden cause of observed phenomena, we impliedly or expressly assume and refer to a standard of probability, both as respects physical and phsychological facts. I need not remark upon the difference between mathematical and moral probability, nor observe that moral probability does not imply any deficiency in the proof, but only marks the particular nature of that proof, as contradistinguished from another species of proof.+-Moral probability is the accordance of facts which we receive upon testimony, with other facts with which we are previously acquainted. It would obviously be most erroneous and unsafe to be influenced in our reception of facts, solely by the results of our own observation and * Burke's Works, vol. ii., p. 623. + Stewart's Elements of the Philosophy of the Human Mind, vol. ii., p. 252. Abercrombie, On the Intellectual Powers, p. 74. experience. We may remember the incredulity of the King of Siam, who, when the Dutch ambassador, entertaining him with an account of his own country, told him that the water in cold weather was so hard that men walked upon it, and that it would even bear an elephant, replied, hitherto I have believed the strange things you have told me, because I look upon you as a sober fair man, but now I am sure you lie.* The Japanese who witnessed in 1803 the assent of Garnerin from Petersburgh, evinced no surprise, and being asked if they had seen any thing of the same kind in Japan, answered no, but that nothing was more common among them; and that the reason why they had not seen it was that the sorcerers in Japan traverse the air only during the night. How instructive are the circumstantial details contained in our own State Trials of cases of imputed witchcraft, and of communications with evil spirits! The venerable and excellent Hale consigned many persons to death for witchcraft. Upon the trial of two women at Bury St. Edmunds, in 1685, that good man said to the jury, that there were such creatures as witches he made no doubt, and left the case to them, with his prayer that "the great God of Heaven would direct their hearts in that matter." The learned Sir Thomas Brown, one of the first physicians and philosophers of his time, and the author of A Treatise on Vulgar Errors, declared himself" clearly of opinion that the persons were bewitched:" it is superfluous to add that they were executed. It is astonishing how prevalent is yet the common belief in witchcraft. It was formerly a current belief that a corpse would bleed in the presence of its murderer; and I could adduce some most curious cases of the unfavorable influence of this notion upon individuals of whose sincerity there can be no doubt, as well as upon the issue of judicial proceedings. A refusal to touch the corpse has often been advanced as cogent evidence of guilt; and, strange to say, the last few years have presented many cases which shew the deep belief still entertained on this subject amongst the uninformed. So late as 1754, in a trial before the Court of Justiciary in Scotland, two witnesses deposed to their having seen a spirit, which told them where the body was to be found, and that the accused was the murderer. How many great names might be adduced as believers in relations of apparitions, which may be admitted to have been grounded upon mental impressions so strong as to be undistinguish * Locke, On the Human Understanding, b. iv., c. 15, s. 5. VOL. VI.-NO. XX. AA |