fection; but it is notwithstanding a humbling consideration, that, "even where there have been a number of concurrent and unconnected circumstances, which have appeared inexplicable upon any hypothesis but that of the accused being guilty, it has yet sometimes been made evident that he was innocent*."

SECTION 3.

CONCLUSION.

The rules of evidence are founded in man's nature, as an intellectual and a moral being; and they are the practical maxims of legal and philosophic experience, matured by a succession of wise men, as the best means of discriminating truth from error, and of contracting as far as possible the dangerous power of judicial discretion. Such rules must of necessity be substantially the same in every civilized country; and the inviolable observance of them is indispensable to social security and happiness. "It is pleasing to remark," observed Sir William Jones, "the similarity or rather identity of those conclusions which pure unbiassed reason in all ages

* Observations on the Criminal Law of England, by Sir Samuel Romilly, p. 74.

and nations seldom fails to draw, in such judicial inquiries as are not fettered and manacled by positive institution*."

The design of this Essay has been to investigate the foundations of our faith in circumstantial evidence, to ascertain its limits and its just moral effect, and to illustrate and confirm the reasonableness of the practical rules which are established in order to prevent the unauthorized assumption of facts, and to secure to relevant facts their proper weight. It has been maintained that the persuasion which circumstantial evidence produces, in the abstract, is inherently of a different and inferior nature from that conviction which is the necessary consequence of direct credible evidence; that such evidence, although not invariably so, is often superior in proving power to the average strength of direct evidence; and that under the qualifications which have been stated, it affords a secure ground for the most important judgements in cases where direct evidence is not to be obtained.

It must however be conceded, that "with the wisest laws, and with the most perfect administration of them, the innocent may sometimes be

* Sir William Jones's Works, vol. viii. p. 445, London, Svo. ed. 1807.

doomed to suffer the fate of the guilty; for it were vain to hope that from any human institution all error can be excluded*." But certainty has not always been attained even in those sciences which admit of demonstration; and still less ought unfailing assurance to be expected in investigations of moral and contingent truth. Nevertheless, these considerations ought not to produce unreasonable and indiscriminate scepticism: the legitimate consequence of such reflections is to inspire a salutary caution in the reception and estimate of circumstantial evidence, and to render the legislator especially cautious how he authorizes, and the magistrate how he inflicts, punishment of a nature which admits of no reversal or mitigation. The golden words of Bacon are most apposite in relation to this important subject: "If a man will begin with certainties, he shall end in doubts; but if he will be content to begin with doubts, he shall end in certainties+.” It is indispensable to the very existence of society that the magistrate should found many of his determinations upon circumstantial evidence. But the difficulty or chance of uncertainty is not

* Sir Samuel Romilly's Observations on the Criminal Law of England, p. 74.

Of the Advancement of Learning, book i.

greater in such cases, than when the maxims of evidence and judgement are applied to other important subjects of philosophical and judicial inquiry. The line has never been defined which separates unsoundness of mind from malignity of heart; no chart has marked every sunken rock; and even the indications of the needle are liable to disturbing agencies, and cannot always save the mariner from shipwreck. Infallibility belongs not to man; and his strongest degree of moral assurance must ever be accompanied by the danger of mistake: but after just effect has been given to sound practical rules of evidence, there will remain no other source of uncertainty or fallacy than that general possibility of error, from which no conclusion of the human judgement, in relation to questions of contingent truth, can be exempt.

297

APPENDIX.

Page 64.

A SENSE of injury and long-cherished feelings of resentment may ultimately induce a state of mind independent of self-restraint, and render their victim the sport of ungovernable impulses of passion*. But the distinction is evident and just between such actions as are the consequences of a voluntary abdication of moral control, and actions committed under the overmastering power of a delusion of the imagination, which, though groundless, operates upon the mind with all the force of reality and necessity t. Facts of this kind occasionally present themselves which are of a nature totally to perplex and baffle the understanding. The following interesting cases on this head are not generally known.

Thomas Milward Oliver was tried at the Stafford summer assizes, 1797, before Mr. Baron Perryn, for the murder of Mr. John Wood. The prisoner was a surgeon and apothecary, and attended in his professional character the family of the deceased for several years,

Rex v. Earl Ferrers, State Trials, vol. xix. p. 885; Rex v. Bellingham, Celebrated Trials, vol. vi. p. 102; and Report taken in short-hand by Mr. Fraser.

+ Rex v. Hadfield, State Trials, vol. xxvii. p. 1281; Martin's case, ut supra; Rex v. Offord, Carrington and Payne's Reports, vol. v. p. 168; Regina v. John Goode, Queen's Bench, 18th November 1837.