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• Rationale of Judicial Evidence.
• Book V.: —of Circumstantial Evidence.
• Chapter I.: Circumstantial Evidence, What—how Distinguished From Direct Evidence.
• Chapter II.: Of Probabilizing, Disprobabilizing, and Infirmative Facts—examples of Principal Facts, With the Corresponding Evidentiary Facts—improbability and Impossibility, How Distinguished From the Other Kinds of Circumstantial Evidence.
• Chapter III.: Of Real Evidence, Or Evidence From Things.
• Chapter IV.: Of Preparations, Attempts, Declarations of Intention, and Thrlats, Considered As Affording Evidence of Delinquency.
• Chapter V.: Of Non-responsion, and False, Or Evasive Responsion, Considered As Affording Evidence of Delinquency.
• Chapter VI.: Of Spontaneous * Self-inculpative Testimony, Considered As Affording Evidence of Delinquency.
• Chapter VII.: Of Confessorial and Otherwise Self-disserving Evidence, Extracted By Interrogation.
• Chapter VIII.: Of Confusion of Mind, Considered As Affording Evidence of Delinquency.
• Chapter IX.: Of Fear, In So Far As Indicated By Passive Deportment, Considered As Affording Evidence of Delinquency.
• Chapter X.: Of Clandestinity, Considered As Affording Evidence of Delinquency.
• Chapter XI.: Of Suppression Or Fabrication of Evidence, Considered As Affording Evidence of Delinqufncy.
• Chapter XII.: Of Avoidance of Justiciability, Considered As Affording Evidence of Delinquency.
• Chapter XIII.: Of the Situation of the Supposed Delinquent In Respect of Motives, Means, Disposition, Character, and Station In Life, Considered As Affording Evidence of Delinquency.
• Chapter XIV.: Posteriora Priorum—priora Posteriorum. Fact Indicated, a Prior Event; Evidentiary Fact, a Posterior Event In the Same Series: and E Converso.
• Chapter XV.: On the Probative Force of Circumstantial Evidence.
• Chapter XVI.: Of Improbability and Impossibility. *
• Chapter XVII.: Atrocity of an Alleged Offence, How Far a Ground of Incredibility. ‡
• Book VI: Of Makeshift Evidence.
• Chapter I.: Of Makeshift Evidence In General.
• Chapter II.: Of Extrajudicially Written Evidence.
• Chapter III.: Of Unoriginal Evidence In General.
• Chapter IV.: Of Supposed Oral Evidence Transmitted Through Oral, Or Hearsay Evidence.
• Chapter V.: Instructions Concerning the Probative Force of Extrajudicially Written and Hearsay Evidence. *
• Chapter VI.: Of Supposed Written Evidence, Transmitted Through Oral; Or Memoriter Evidence. *
• Chapter VII.: Of Supposed Oral Evidence, Transmitted Through Written; Or Minuted Evidence.
• Chapter VIII.: Of Supposed Written Evidence, Transmitted Through Written; Or Transcriptitious Evidence.
• Chapter IX.: Of Reported Real Evidence: I. E. Supposed Real Evidence, Transmitted Through Oral Judicial Testimony, Or Through Casually-written Evidence.
• Chapter X.: Of Evidence Transmitted Through an Indefinite Number of Media.
• Chapter XI.: What Ought, and What Ought Not, to Be Done, to Obviate the Danger of Misdecision On the Ground of Makeshift Evidence.
• Chapter XII.: Aberrations of English Law In Regard to Makeshift Evidence.
• Book VII.: Of the Authentication of Evidence.
• Chapter I.: Authentication, What. Connexion of This Subject With That of Preappointed Evidence.
• Chapter II.: Subject-matters of Authentication, What. Modes of Authentication In the Case of Real and of Oral Evidence.
• Chapter III.: Modes of Authentication In the Case of Written Evidence.
• Chapter IV.: Modes of Deauthentication In the Case of Written Evidence.
• Chapter V.: Distinction Between Provisional and Definitive Authentication. Rules For the Legislator and the Judge, Concerning the Authentication of Written Evidence.
• Chapter VI.: Aberrations of English Law In Regard to the Authentication of Written Evidence.
• Book VIII.: On the Cause of Exclusion of Evidence—the Technical System of Procedure.
• Chapter I.: Object of This Inquiry—its Connexion With the Subject of the Present Work.
• Chapter II.: Technical Or Fee-gathering, and Natural Or Domestic, Systems of Procedure, What?
• Chapter III.: Cause of the Vices of Technical Procedure, the Sinister Interest of the Judge.
• Chapter IV.: Particular Exemplifications of the Vices Introduced By the Fee-gathering Principle Into Technical Judicature.
• Chapter V.: List of the Devices Employed Under the Fee-gathering System, For Promoting the Ends of Established Judicature, At the Expense of the Ends of Justice. *
• Chapter VI.: First Device—exclusion of the Parties From the Presence of the Judge.
• Chapter VII.: Second Device—tribunals Out of Reach: Or, Swallowing Up the Inferior Courts.
• Chapter VIII.: Third Device—bandying the Cause From Court to Court.
• Chapter IX.: Fourth Device—blind Fixation of Times For the Oplrations of Procedure.
• Chapter X.: Fifth Device—sitting At Long Intervals.
• Chapter XI.: Sixth Device—motion Business.
• Chapter XII.: Seventh Device,—decision Without Thought; Or Mechanical Judicature.
• Chapter XIII.: Eighth Device—chicaneries About Notice.
• Chapter XIV.: Ninth Device—principll of Nullification.
• Chapter XV.: Tenth Device—mendacity-licence.
• Chapter XVI.: Eleventh Device—ready Written Pleadings.
• Chapter XVII.: Twelfth Device—principle of Jargon, Or Jargonization.
• Chapter XVIII.: Thirteenth Device—fiction.
• Chapter XIX.: Fourteenth Device—entanglement of Jurisdictions.
• Chapter XX.: Fifteenth Device—means of Securing Forthcomingness, Uselessly Divfrsified.
• Chapter XXI.: Sixteenth Device—creation of Needless and Useless Offices.
• Chapter XXII.: Seventeenth Device—sham Pecuniary Checks to Delay, Vexation, and Expense.
• Chapter XXIII.: Eighteenth Device—double-fountain Principle.
• Chapter XXIV.: Nineteenth Device—laudation of Jurisprudential Law.
• Chapter XXV.: Habitual Contempt Shown By Judges to the Authority of the Legislature.
• Chapter XXVI.: Opinion-trade.
• Chapter XXVII.: Extension of the Above Devices to Substantive Law, As Far As Applicable.
• Chapter XXVIII.: Remedies Suggested For the Above Evils.
• Chapter XXIX.: Apology For the Above Exposure.
• Book IX.: On Exclusion of Evidence.
• Part I.: On the Exclusionary System In General.
• Chapter I.: Exclusion of Evidence. Its Connexion With the Ends of Justice.
• Chapter II.: Disregard Shown to the Ends of Justice Under the Exclusionary System.
• Chapter III.: General View of the Mischiefs of the Exclusionary System.
• Chapter IV.: Dicta of Judges On the Exclusionary System.
• Chapter V.: Species of Exclusion.
• Part II.: View of the Cases In Which Exclusion of Evidence Is Proper.
• Chapter I.: General View of the Cases In Which Exclusion Is Proper.
• Chapter II.: Exclusion On the Ground of Vexation, In What Cases Proper.
• Chapter III.: Exclusion On the Ground of Expense, In What Cases Proper.
• Chapter IV.: Exclusion On the Ground of Delay, In What Cases Proper.
• Chapter V.: Exclusion of Irrelevant Evidence, Proper.
• Chapter VI.: Exclusion of the Evidence of a Catholic Priest, Respecting the Confessions Intrusted to Him, Proper.
• Chapter VII.: Remedies Succedaneous to the Exclusion of Evidence.
• Part III.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Ground of Danger of Deception. *
• Chapter I.: Cases Enumerated.
• Chapter II.: Danger of Deception, Not a Proper Ground For Exclusion of Evidence.
• Chapter III.: Impropriety of Exclusion On the Ground of Interest.
• Chapter IV.: Impropriety of Exclusion On the Ground of Improbity.
• Chapter V.: Impropriety of Exclusion On the Ground of Religious Opinions.
• Chapter VI.: Impropriety of Exclusion On the Ground of Mlntal Imbecility, and Particularly of Infancy and Superannuation.
• Chapter VII.: Of the Restoratives For Competency, Devised By English Lawyers.
• Part IV.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Ground of Vexation.
• Chapter I.: Vexation to Individuals Arising Solely Out of the Execution of the Laws, Not a Proper Ground of Exclusion.
• Chapter II.: Enumeration of the Sorts of Evidence Improperly Excluded On This Ground By English Law.
• Chapter III.: Impropriety of the Exclusion Put Upon Self-disserving Evidence By English Law.
• Chapter IV.: Inconsistencies of English Law In Regard to Self-disserving Evidence.
• Chapter V.: Examination of the Cases In Which English Law Exempts One Person From Giving Evidence Against Another.
• Part V.: View of the Cases In Which Evidence Has Improperly Been Excluded On the Double Account of Vexation and Danger of Deception.
• Chapter I.: Impropriety of Excluding the Testimony of a Party to the Cause, For Or Against Himself.
• Chapter II.: Examination of the Course Pursued In Regard to the Plaintiff’s Testimony By English Law.
• Chapter III.: Examination of the Course Pursued In Regard to the Defendant’s Testimony By English Law.
• Chapter IV.: Impropriety of Excluding the Testimony of a Party to the Cause, For Or Against Another Party On the Same Side. Examination of the Course Pursued In This Respect By English Law.
• Chapter V.: Probable Origin of the Above Exclusionary Rules.
• Part VI.: Of Disguised Exclusions.
• Chapter I.: Exclusion of Evidence For Want of Multiplicity.
• Chapter II.: Exclusion By Limitation Put Upon the Number of Witnesses.
• Chapter III.: Exclusion Put By Blind Arrangements of Procedure Upon Indeterminate Portions of the Mass of Evidence.
• Chapter IV.: Exclusion By Rendering a Particular Species of Evidence Conclusive.
• Chapter V.: Of the Rule, That Evidence Is to Be Confined to the Points In Issue. ‡
• Chapter VI.: Of Negative Exclusions.
• Book X.: Instructions to Be Delivered From the Legislator to the Judge, For the Estimation of the Probative Force of Evidence.
• Chapter I.: Preliminary Observations.
• Chapter II.: Of Interest In General, Considered As a Ground of Untrustworthiness In Testimony.
• Chapter III.: Of Pecuniary Interest, Considered As a Ground of Untrustworthiness In Testimony. *
• Chapter IV.: Of Interest Derived From Social Connexions In General.
• Chapter V.: Of Interest Derived From Sexual Connexions.
• Chapter VI.: Of Interest Derived From Situation With Respect to the Cause Or Suit.
• Chapter VII.: Of Improbity, Considered As a Cause of Untrustworthiness In Testimony.
• Chapter VIII.: Of the Comparative Mischief In the Event of Misdecision, to the Prejudice of the Plaintiff’s Or of the Defendant’s Side.
• Chapter IX.: Ulterior Safeguards Against the Inconveniencies Which May Present Themselves As Liable to Arise From the Abolition of the Exclusionary Rules.
• Chapter X.: Recapitulation.
• Conclusion.
• Note On the Belgic Code.

BOOK V.

—OF CIRCUMSTANTIAL EVIDENCE.

CHAPTER I.

CIRCUMSTANTIAL EVIDENCE, WHAT—HOW DISTINGUISHED FROM DIRECT EVIDENCE.

This book has for its subject, Circumstantial Evidence.

In relation to this, as to all other objects within the compass of this work, its business and aim is to bring to view the course which, it is supposed, ought to be taken by the legislator and the judge.

By the legislator, the result will be, that, under this head, in the way of regulation, very little ought to be done: done, viz. in such sort as to coerce, in the way of obligation (positive or negative,) the will and conduct of the judge.

What remains is, by apposite instructions, to hold up to view such considerations as promise to be of use, in the character of lights, to the understanding of the judge.

To the exercise of this function, power (political power) not being necessary,—it is capable, indeed, of being exercised by the legislator, but so is it of being exercised by anybody else. Addressed more immediately to the legislator, as the fountain of all authority, the judge is the person in whose conduct, if the instructions here endeavoured to be given are destined to have any influence, their influence will be more directly discernible. Instructions to the legislator, they are, at the same time, instructions as from the legislator to the judge.

Under the denomination either of circumstantial or of direct, everything to which the denomination of evidence is applicable stands included.

When all the evidence is of that sort which is termed direct, no part of it of the nature of circumstantial, the case is such as affords not room for any special inference—for any other inference than that general one, by which, from the discourse by which the existence of this or that fact is asserted, the existence of that fact is inferred, and credited.

When evidence of the circumstantial kind presents itself, and either no evidence at all of the direct kind, or none that is of itself sufficient without the aid of the circumstantial evidence; in every such case, inference—special inference—is necessary. Of some one fact at least (call it for this purpose the principal fact) the existence, with or without the aid of direct evidence applying immediately to that same principal fact, is inferred; viz. from the existence, as established by direct evidence, of some other fact; or more commonly from some cluster of other facts: call them, for this purpose, evidentiary facts.

In every case, therefore, of circumstantial evidence, there are always at least two facts to be considered:—1. the factum probandum, or say, the principal fact—the fact the existence of which is supposed or proposed to be proved—the fact evidenced to—the fact which is the subject of proof;—2. The factum probans—the evidentiary fact—the fact from the existence of which that of the factum probandum is inferred.

The principal fact is in its nature susceptible of two main distinctions: it may be—it cannot but be—either of a physical or of a psychological nature. If it be a simple one, it cannot be of both natures at once: if it include both, it must be distinguished by the name of a complex or compound fact; for in practice, its properties will in this case be found to be different from what they are in the other.

This same distinction is alike applicable, in every instance, to the evidentiary fact; and the occasions for applying it to that latter object will occur as frequently as the occasions for applying it to the other.

The same fact which, with relation to one fact, bears the relation of a principal fact, will, with relation to another (or even the same) bear the relation of an evidentiary fact.

In this way, a chain of facts, of any length, may be easily conceived, and chains of different lengths will be frequently exemplified: each such link being, at the same time, with reference to a preceding link, a principal fact, and with reference to a succeeding one, an evidentiary fact.*

In a chain of this sort, it becomes necessary to distinguish the several precedential or introductory facts (principal and evidentiary) from the ultimate principal fact. The ultimate principal fact occuptes that station only: it is the very fact sought: it is not viewed for the purpose of inducing a persuasion of the existence or non-existence of any other fact.

In all criminal cases, this fact is a complex fact; and in such case complex, as to include in its composition divers psychological facts, together with at least one fact of the physical kind, affirmative or negative.

In the case of direct evidence, the distinction between the principal fact and the evidentiary fact is alike applicable, and the union of the two alike indispensable, as in the case of circumstantial evidence. But in the case of direct evidence, the evidentiary fact is throughout of an uniform description. It consists in the existence of a person appearing in the character of a deposing witness, and, in the way of discourse, asserting the existence of the principal fact in question, on the ground of its having, in some way or other, come within the cognizance of his perceptive faculties.†

If, in order to make up a complete collection of the facts, the proof of which is necessary to afford a ground for the decision in question, there is no need of forming any conclusion—of drawing any inference—of deducing the persuasion of the existence of any one fact from the existence of any other fact—in a word, from any other source than the direct assertion of a deposing witness, speaking in the character of a percipient witness;—in that case, the proof consists wholly of direct evidence; and nothing that comes under the notion of circumstantial evidence forms any part of it.

But so long as the body of proof, to make it complete, stands in need of any inference (though it be but a single inference, and that ever so close and necessary a one,) in so far an article of circumstantial evidence forms a necessary part of it.

In a case regarded as criminal, the body of evidence (unless it consist of confessorial evidence) cannot, if complete, be composed solely of direct evidence: how satisfactory soever, it cannot but include a mixture of circumstantial evidence. For, to constitute a criminal act, one or more facts of the psychological kind are indispensably requisite: in most instances, the sentiment of consciousness, with relation to the existence of divers exterior facts; in all cases, intentionality, viz. the intention of bringing about the obnoxious event, or at least of doing the physical act by which it is produced or endeavoured to be produced.‡

To complete the body of evidence necessary to the proof of a criminal act, proof of psychological facts (one or more) is indispensable: but unless by the individual himself whose mind is the scene of them, no fact of the psychological kind can be proved by any direct testimonial evidence. Why?—Because, unless stated by the individual himself in whose mind the fact is considered as having place, the existence of any such psychological fact can only be matter of inference. What passes or has passed in my own mind, I know by my own internal consciousness, and without any inference: concerning what passes or has passed in the mind of Titius, I cannot know but by one or other of two means, viz. either from what he himself declares (so far as I credit what he says,) or from the observations I have had the opportunity of making on the subject of his exterior deportment.

In regard to a complex act of this class (the class of criminal offences,) direct testimony, therefore, consisting of extraneous testimony alone, cannot but be incompetent; or, at any rate, if a body of extraneous evidence be in itself complete, and (in its effects on the mind of the judge) satisfactory and persuasive, it will be so in part only, in the character of direct evidence; as to the other part (viz. in so far as any facts of the psychological class are proved by it,) in the character of circumstantial evidence.

In regard to the existence of facts considered in the character of principal facts, it is no uncommon case for the persuasion to be indicated, and to find credence, and that with reason, on the ground of circumstantial evidence alone, without the aid of any direct evidence. But it is seldom indeed that the body of evidence adduced in proof of any such principal fact, would, upon examination, be found to consist purely of direct evidence, unaccompanied by any admixture of circumstantial evidence.

This is so true, that, of a body of evidence (say the testimonial evidence of an individual deposing in the character of one who was at the time in question a percipient witness of the matter of fact in question)—of a body of evidence, delivered in the character of a body of direct evidence,—it is very rare that, upon examination, the whole would be found to consist of direct, without any admixture of circumstantial, evidence. Simple perception is the operation of sense; inference is the operation of the judgment. But, by the most constantly in exercise of all the senses, viz. sight, it is seldom that any belief of any matter of fact is produced, but that the judgment has been more or less at work in the production of it.*

The evidence afforded by any given mass of testimony is either direct or circumstantial, according to the relation it bears to the fact to which it is considered as applying. It is direct, in respect of any and every fact expressly narrated by it; and, in particular, every fact of which the witness represents himself as having been a percipient witness. It is circumstantial, in respect of any and every fact not thus expressly narrated by it; in particular, every fact of which the witness does not represent himself as having been a percipient witness, and the existence of which, therefore, is matter of inference, being left to be concluded from its supposed connexion with the facts spoken to by the testimony in its character of direct evidence.

The testimony of a witness operates as circumstantial evidence, not only in regard to all facts which, not having been actually perceived by him, are by him inferred from facts which he has perceived,—his testimony (or at least the fact of his giving utterance to such testimony) may operate further in the character of circumstantial evidence, in regard to facts which have neither been perceived nor inferred by him, but which are inferred by the judge, from the fact of his having uttered the testimony. In this case, the evidentiary fact is not the testimony itself, but the delivery of it by the witness.

In the character of direct evidence, the truth of any decision grounded on the testimony, will depend altogether upon the truth—the logical truth, the verity—of the testimony. If the facts are (whether knowingly or not knowingly) misrepresented by it, the decision will, in so far as the question of fact is concerned, be erroneous. In the character of circumstantial evidence, the truth of the decision will not depend upon the truth of the testimony: it will depend upon the truth, the justness, of the interence grounded on it; on the strength, the real strength of the connexion between the fact assumed (viz. the fact of the utterance of a mass of testimony, assertive of the fact purporting to be asserted by it,) and the fact inferred from that same assumed fact. If the inference grounded on the testimony be a just inference, the decision grounded on that inference may be a just decision, although the testimony which it has thus taken for its ground be false. A man suspected of a murder is interrogated on the subject of it by a judge: if, being guilty, he confesses the fact (including the several circumstances necessary to fix it upon himself as the author of it, and in the character of a crime,) there is no demand for inference—the testimony amounts to a full confession, and operates purely in the character of direct evidence:—if, being guilty, he does not confess the fact (he being at the same time pressed with the strings of questions which a man, acting on the occasion with an ordinary degree of zeal, probity, and intelligence, in the character of a judge, will not fail to ply him with,) the testimony thus extracted will almost always, or rather necessarily (in so far as he quits the intrenchments of non-responsion, or its equivalent, evasive responsion) contain a mixture of truth and falsehood. Now it is, that the testimony—not being, in respect of such part of it as is true, full enough to operate of itself with a conclusive force in the character of direct evidence—is consulted (as it were,) and made to operate further, in the character of circumstantial evidence; in which character it may be full enough to operate, and even conclusively; affording full satisfaction—generating a full persuasion,—although, in the character of direct evidence, it was deficient.

But on this occasion, such parts of the testimony as are false, may (in so far as they are understood to be false) contribute in support of the conclusion, just as much as the facts that are true. For, not only when the whole narrative is viewed together, in a general point of view, falsehood is, to the apprehension of every rational mind, a strong indication and symptom of delinquency—of whatever modification of delinquency the defendant on the occasion in question happens to be suspected of,—but, in respect of the details of the transaction, this or that particular falsehood (an assertion representing this or that fact as existing at the time and place in question, which did not exist at that time and place, or representing as not existing at the time and place in question a fact which, at that time and place, did exist) will afford an inference (and that frequently a conclusive and perfectly satisfactory one) establishing this or that particular truth—the existence of this or that fact which then and there did exist, or the non-existence of this or that fact which then and there did not exist.

From the foregoing elucidations, the definition of an article of circumstantial, as distinguished from an article of direct evidence, may be deduced as follows; viz.—

The principal fact being given, and being the same in both cases; the evidentiary fact, constituting the article of evidence—if it be of the nature of direct evidence (having for its source a person, to wit, a single person, and no more)—consists of an averment, statement, assertion, narration (all these mean the same thing,) made by that person, averring that, at a specified time and place, the principal fact in question came within the cognizance of his senses: such assertion being expressed either by words spoken, or by written discourse, or even by gestures (or modifications of deportment,) if such gestures were intended to convey an assertion to the effect in question, instead of its being conveyed by words.

In the same case (as above,) the evidentiary fact in question, if it be of the nature of circumstantial evidence, may consist either of some physical fact, from a real source, or (if from a personal source) a psychological fact;* such psychological fact having necessarily for its index, some physical fact, issuing from the same personal source.

CHAPTER II.

OF PROBABILIZING, DISPROBABILIZING, AND INFIRMATIVE FACTS—EXAMPLES OF PRINCIPAL FACTS, WITH THE CORRESPONDING EVIDENTIARY FACTS—IMPROBABILITY AND IMPOSSIBILITY, HOW DISTINGUISHED FROM THE OTHER KINDS OF CIRCUMSTANTIAL EVIDENCE.

When, of any principal fact in question, the existence is indicated by direct evidence (no objection presenting itself to the trustworthiness of the deponent by whom the existence of it is asserted,) it is said to be proved; and for the proof of every such fact by evidence of this description, a simple assertion, made by any one such person in the character of a deponent, is frequently (under English law at any rate) regarded as sufficient. The persuasion generated by it in the mind of the judge is of sufficient strength to give birth to a decision on his part; together with such acts of power, to which, on the occasion in question, a decision to the effect in question is in the habit of giving birth.

When, of the existence of the principal fact in question, no other indication presents itself than what is afforded by circumstantial evidence, it is seldom, very seldom, that by any single article of evidence of that description the fact is considered as being proved: it is seldom that by any one such article, standing by itself, a persuasion strong enough to constitute a ground for action is constituted in the mind of the judge.

By some greater number of such lots of circumstantial evidence, taken together, the fact may be said to be proved. Of the probative force of any one of them, taken by itself, the utmost that can be said is, that by means of it the fact is probabilized:—rendered, in a greater or less degree, probable.

As there are facts—evidentiary facts—by the force of which, a fact, considered in the character of a principal fact, is probabilized,—so it will generally happen that there are others by which the same fact may be disprobabilized:—the existence of it rendered more or less improbable.

When a principal fact is thus probabilized, it is by the probative force of the evidentiary fact: by the strength of the inference by which, the existence of the evidentiary fact being affirmed, the existence of the principal fact is inferred. A fact being, in the character of an evidentiary fact, deposed to and considered as proved, and the principal fact in question considered as being thereby, in a certain degree, probabilized,—it will often happen, that, by the bare consideration of some other fact, which is not proved, nor so much as attempted to be proved, the principal fact will be considered as being, in a greater or less degree, disprobabilized. Why? Because, if the existence of this disprobabilizing fact be supposed (it being itself, in the case in question, not impossible,) it will therefore be seen that, notwithstanding the existence of a probabilizing fact, the existence of the principal fact is not in so high a degree probable, as it would be if the existence of the disprobabilizing fact were impossible.

Speaking with reference to the probabilizing fact in question,—any such disprobabilizing fact, thus contributing to weaken, to render infirm, the probative force of the probabilizing fact, may be termed an infirmative fact.

There are few, if any, probabilizing facts, in relation to which, one or more (commonly, if not constantly, more than one) infirmative facts would not, in case of an adequately diligent scrutiny, be found.

If, in one point of view, it be of importance that—in relation to all facts which, with reference to any of those principal facts on the credit of which a man’s station in society is disposed of, are wont to be considered in the character of probabilizing facts—the probative force should be perceived and rightly estimated;—in another point of view, it is a matter of correspondent importance that the several facts, bearing upon such probabilizing facts in the character of infirmative facts, should also be perceived as capable of having place, and the probative force of them respectively, be rightly estimated.

Among the facts which will be brought to view in the character of principal facts, is delinquency. Among the facts which will be brought to view in the character of evidentiary facts, are various facts, the nature of which (supposing them proved) is to operate, with relation to any principal fact of that description, in the character of circumstantial evidence. Among the facts which will be brought to view in the character of infirmative, and thereby of disprobabilizing, facts, are various facts, the force of which applies itself to divers of the facts just mentioned in the character of probabilizing facts, operating in that character with relation to delinquency.

In the instance of a fact of either description, supposing it either unseen, or the probative or disprobative force of it undervalued, the effect of such oversight or error may be fatal, with reference to one or other of the direct ends of justice. If the fact overlooked be a probabilizing fact, in relation to delinquency,—a wrongdoer may escape the burthen of punishment or satisfaction to which it was the intention of the law to subject him: if it be, in relation to any such probabilizing fact, an infirmative fact,—an individual who is not a wrongdoer may be subjected to punishment or the burthen of satisfaction as if he were.

In the case of delinquency, as in the case of a principal fact of any other description, the probabilizing facts in question (be it observed) are, by the supposition, not only brought to view, but proved; so that, in regard to these, all that, for the instruction of the judge, can be done by human industry, is to give what little instruction can be given in relation to their respective degrees of probative force. But, of any regard paid to any of the infirmative facts that respectively apply to these several probabilizing facts, the nature of the case affords no such certainty: it is in this instance, therefore, that the need of instruction is the greatest: it is by bringing to view the facts of this description, that, by hands unclothed with authority, the greatest service may be rendered to justice under the head of circumstantial evidence.

Overlooked they are in many instances not unapt to be. Accordingly, in the instance of one of the most illustrious luminaries of English law, an example will be seen,* in which, for want of due notice taken of the infirmative facts that bore upon the case, delinquency of the deepest dye (viz. murder) was considered as certain, in circumstances in which, regard being paid to those infirmative facts, it will perhaps, to a discerning eye, appear not more probable than innocence; at any rate, not to a sufficient degree probable, to afford a just ground for a judgment of conviction.†

To exhibit every fact capable of being considered in the character of a principal fact, together with every fact capable of being, with reference to it, considered in the character of an evidentiary (i. e. either a probabilizing or a disprobabilizing) fact,—and, moreover, every fact capable of being considered (with reference to such evidentiary fact) in the character of an infirmative fact,—would be to exhaust the stores, not only of jurisprudence, but of everything else that has ever borne the name of science.

For the purpose of the present occasion, a selection must therefore necessarily be made, and this even among the cases liable to call for decision at the hands of judicature: for, in one way or other, to whatever branch of science it belongs, there is scarce an imaginable fact to which it may not happen to be an object of research, for the purpose of a decision sought at the hands of judicature. Patents, by which temporary monopolies are granted for the encouragement of inventions, suffice of themselves to subject to the dominion of judicature almost the whole practical department of the field of physical science: wagers have power to subject to the cognizance of the same authority every proveable fact without distinction. By a wager concerning the existence of phlogiston, the whole field of chemistry might have been laid at the feet of the judge.

In the selection here made, the object has been, to take such examples as, by the frequency of their occurrence, and the extent of the ground which they cover in the field of law, promise to be in a more particular degree serviceable towards the prevention of the erroneous conclusions to which the function of judication (so far as concerns the question of fact) is exposed.

Here follow examples of facts, which, in the character of principal facts (facts on the belief of which judicial decision depends) are susceptible of being probabilized or disprobabilized by correspondent evidentiary facts or groups of evidentiary facts, constituting so many articles of circumstantial evidence, such as are in use to be deposed to, and considered as proved, in a course of judicial investigation.

I. Principal facts considered as probabilized:—

1. Delinquency in general; viz. any act by which the ordinances or supposed ordinances of the law (i. e. of the supreme power in a state) are transgressed. An enumeration of the several facts capable of serving, in the character of evidentiary facts, to probabilize a principal fact coming under this description (viz. the description of delinquency,) will be given in the sequel of this Book.*

2. Intention of performing any individual act belonging to a modification of delinquency, i. e. to a species of acts forbidden by law; and thence (when the fact so intended to have place has taken place,) the existence of such physical acts, as, on the part of the person in question, were necessary to cause it to have place.

For the correspondent evidentiary facts, see Chap. IV. of this Book.

3. Unauthenticity or unfairness (on one or both sides,) in the instance of a written instrument expressive of agreement or conveyance.

Correspondent evidentiary fact, non-observance of formalities; viz. of the formalities the observance of which has been made by the law a condition to its binding force.

By the laws by which these formalities have been appointed, the evidentiary fact here in question has in general been considered as conclusive evidence of the principal fact. Concerning the propriety of so peremptory a conclusion, see the book on Preappointed Evidence, and the book having for its subject the exclusions customarily put on various modifications of evidence.

4. Unauthenticity (total or partial) of any instrument being, or purporting to be, of ancient date.

For the circumstances capable of serving in the character of evidentiary facts to probabilize this principal fact, unauthenticity.—or (which is the same things in other words,) to disprobabilize the authenticity of the instrument,—see a table of evidentiary facts of this description, taken principally from Le Clerc’s Ars Critica.*

5. Posteriora priorum: any supposed antecedent acts in a number of supposed successive acts (whether forbidden by law or not,) considered as following one another in a supposed naturally connected series: for example, as being, or being supposed to be, conducive to one and the same end; such as, in a lawsuit, success, viz. on either side of the suit.

Correspondent evidentiary facts,—any acts proved to have been performed, and considered as having been performed in consequence of such supposed antecedent acts; for example, in pursuit of the same end.

See a table of evidentiary facts of this description taken from Comyns’s Digest of English Law.†

6. Priora posteriorum: any supposed consequent acts in a number of supposed successive acts, considered as following one another in a supposed naturally connected series, as above.

Correspondent evidentiary facts,—any acts proved to have been performed, and considered as having been performed antecedently to, and with the intention of their being followed by, such supposed consequent acts, as being means conducive to the same end.

See a table of evidentiary facts of this description, also from Comyns.

II. Principal facts considered as disprobabilized:—

7. (1.) Any supposed act of delinquency: any act made penal, or though but disreputable: especially if in a high degree.

The correspondent disprobabilizing evidentiary facts, are situations: viz. situations in which the supposed delinquent is capable of being found placed. In the sequel of this Book it will be seen, what situations can be considered to operate as circumstantial evidence probabilizing the existence of delinquency. Now, whatsoever situation exhibits the supposed delinquent as in a certain degree exposed to the danger of falling into the species of guilt in question,—by a situation opposite to that seductive situation he will in a proportionable degree he guarded and fortified against that danger.

8. (2.) Any supposed physical fact whatsoever.

Short and general expression for all supposed facts, considered in the character of disprobabilizing facts with relation to the supposed fact,—physical impossibility or improbability. These disprobabilizing facts follow, in each instance, the nature of the supposed principal fact. Any facts, considered as affording the indication in question, being supposed to be established, whether by special proof or by their own supposed notoriety,—there remains in each instance for consideration the question, whether the existence of the supposed principal fact is incompatible with the existence of the disprobabilizing facts?

The principal fact being considered as proved (viz. by such special testimony as, if not opposed by counter-evidence, would be regarded as sufficient for the proof of it;) the decision will in this case turn upon the supposed preponderance of probative force, as between special testimony (the testimony of the witness or witnesses by whom the supposed fact is deposed to,) and the supposed general testimony by which those facts which are regarded as incompatible with it are considered to be (as it were) deposed to: at any rate, as established on sufficient grounds.

Of the applications capable of being made of this modification of circumstantial evidence, the principal is that in which the extraordinary interposition of supernatural power is supposed: as in the case of sorcery, witchcraft, and such other operations, real or supposed, as have been designated under the general name of miracles.

9. (3.) Any supposed psychological fact whatsoever; i. e. any supposed fact, the supposed seat of which is in the mind of this or that individual human being.

Corresponding disprobabilizing facts shortly designated as above, psychological improbability.

The term impossibility is in this case omitted. The reason is, the want of uniformity and consistency on the part of all psychological facts as compared with physical ones. Correspondent and opposite to impossibility, is certainty. But the case of insanity is of itself sufficient to prevent any state of the human mind from being considered in any instance as certain: and of insanity there are gradations innumerable; many of them, at that end of the scale which is next to sanity, scarce distinguishable from it.

The last-mentioned species of circumstantial evidence—improbability or impossibility—has in its nature something peculiar. In all the other kinds of circumstantial evidence, the evidentiary fact (whatever it be—positive or negative) is at any rate something entirely distinct from, and independent of, the principal fact, the fact to be proved. In the case of improbability or impossibility, the evidentiary fact is not another and a distinct fact: it is no other than a property, or supposed property, of the principal fact itself; to wit (as will hereafter be seen,) the property of being contrary to the order of nature.

Circumstantial evidence, therefore, may with propriety be distinguished into that which is afforded by other facts, and that which is afforded by the nature of the fact itself that is to be proved.

For the illustration of the first of these modifications of circumstantial evidence,—taking for the principal fact, delinquency, considered in a general point of view,—I shall bring to view the several classes of probabilizing facts bearing relation to it; accompanied with an indication of such facts as present themselves in the character of infirmative facts with relation to such of the above-mentioned probabilizing facts as are exhibited in a state particular enough to be susceptible of any such particular indications.

This done, from the mass of particular considerations thus brought to view I shall deduce such considerations of a general nature as promise to be of use in the way of instruction, either to the legislator or the judge; for which purpose, the matter afforded by such of the circumstantial evidences as have for their principal fact delinquency, will, it is supposed, suffice.

I shall then pass to the consideration of that kind of circumstantial evidence which is afforded by the nature of the principal fact itself; viz. improbability and impossibility.

CHAPTER III.

OF REAL EVIDENCE, OR EVIDENCE FROM THINGS.

§ 1.

Of the nature and extent of real evidence.

Byreal evidence, I understand all evidence of which any object belonging to the class of things is the source; persons also included, in respect of such properties as belong to them in common with things.

The properties of things are the subject-matter of the different branches of physical science. A work having for its subject any such branch of science, is, as to a great part of its contents, a treatise on circumstantial evidence. In this point of view, this comparatively small portion of our field of inquiry is of itself infinite.

On the present occasion, the inquiry is limited to the field of law. Even after this limitation, however, there is scarce an imaginable distinction or observation, an indication of which could, with reference to the subject of the present work, be charged with being altogether irrelevant: for, in one way or other, and even in each instance in various ways, there is not an imaginable fact, the existence of which is not capable of being taken for the subject of inquiry in a court of judicature. No imaginable fact (for example,) the existence of which may not (unless in case of legal prohibition interposed for special reasons) have been taken for the subject of a wager: on which occasion, whether the wager has been won or no by Titius, may become a question to be determined by a court of law. Add to this, the case of a premium offered for an invention or discovery; the case of a claim put in to the sort of temporary monopoly granted to inventors for the encouragement of inventions; and the case of a question whether a contract, respecting the practice of any branch of art, or the affording instruction in relation to any branch of science, has been properly fulfilled. Of the evidence that on any of these occasions may come to be exhibited, a portion more or less considerable (if not the whole) will come under the notion of the species of evidence already distinguished under the appellation of scientific evidence: but it is not the less true that the facts brought to view on such occasions respectively, are brought to view in the character of evidentiary facts, and are included in the field of legal evidence. If, therefore, the whole Encyclopædia were to be crowded into the body of this work, and into this part of it in particular, there is not a page of it, that (if relevant with reference to the particular branch of art or science of which it undertook to treat) would, strictly speaking, be irrelevant—could be justly chargeable with being altogether irrelevant—with reference to the subject of this work. But, as the duration of human life, as well as human powers (psychological and physical,) has its limits; it becomes matter not only of convenience but of necessity, to mark off and abandon to the labours of their respective professional and other appropriate cultivators, these several distinguished and pre-eminent portions of the field of evidence.

Even in the more limited field opened by the penal branch of law,—a prodigiously ample and diversified demand, a demand scarce susceptible of limitation, will be seen to present itself. Cases of homicide and personal injury (not to mention at present a great variety of other cases,) are sufficient of themselves to draw deep upon the stores of medical science: cases of monetary forgery upon the metallurgic branch of chemistry: cases of scriptural forgery, upon the arts of the engraver, the paper-maker, the letter-founder, the ink-maker, and (through one or other channel) upon the stores of chemistry.

Of all modifications of real evidence, the human body is that source which will serve best for exemplification: the matter afforded by it being at the same time of the most interesting nature, susceptible of the greatest variety, and capable of being brought to view in the smallest compass, proportionally to the importance of the instruction conveyed by it. The following table is a translation, nearly literal, of the heads offered in Plink’s Elementa Medicinæ et Chirurgicæ Forensis, Vienna, 1781. A few articles are omitted; some as not being applicable to the present design; others as referring to vulgar errors, which, at this time of day, no longer threaten to be productive of errors in judicature.*

Questions belonging to the cognizance of criminal tribunals:—

• I. Signs of homicide, by
  • 1. Wounds.
  • 2. Contusion.
  • 3. Hanging.
  • 4. Drowning.
  • 5. Suffocation.
  • 6. Poison.
  • 7. Unskilful practice (medical or chirurgical.)
  • 8. Suicide.
• II. Signs of infanticide, by
  • 1. Wounds.
  • 2. Contusion.
  • 3. Suffocation.
  • 4. Starving.
  • 5. Cold.
  • 6. Heat.
  • 7. Drowning.
  • 8. Omission to tie the navel-string.
  • 9. Omission to administer medical remedies against debility.
  • 10. Abortion purposely procured.
• III. Signs indicative of ability or inability to endure divers corporal inflictions, for the purpose of punishment or compulsion.
• IV. Grounds of exemption from punishment on the score of infirmity (bodily or mental) existing at the time of the act of delinquency.

Questions belonging to the cognizance of civil tribunals:—

• 1. Signs disproving alleged paternity.
• 2. Signs disproving alleged maternity.
• 3. Signs of a child’s being born alive.
• 4. Signs of a child’s being born dead.
• 5. Signs of a child’s being born at full time.
• 6. Signs of prematurity of birth to a degree not inconsistent with continuance of life.
• 7. Signs of prematurity of birth to a degree inconsistent with ditto.
• 8. Signs of birth at a period so late as to be incompatible with alleged paternity.
• 9. Signs of a supposititious child.
• 10. Signs of a child conceived in the way of superfœtation,
• 11. Signs of the first born among twins, &c.
• 12. Signs of fictitious pregnancy.
• 13. Signs of concealed pregnancy.
• 14. Signs of real parturition.
• 15. Signs of fictitious parturition.
• 16. Signs of defloration.
• 17. Signs of rape.
• 18. Signs of particular ages.
• 19. Signs of divers fictitious diseases.
• 20. Signs of divers concealed diseases.
• 21. Signs of false imputation of disease, in divers instances.

Questions belonging to the cognizance of ecclesiastical tribunals:—

• 1. Signs of barrenness in females.
• 2. Signs of impotence in males.
• 3. Signs of monstrosity.
• 4. Signs of doubtfulness in regard to sex.

For the reasons already stated, the inquiry is in the present instance limited to the penal branch of law. The fact sought, and concerning which on each occasion the question is, whether it be evidenced or no, is delinquency: the evidentiary facts are any and every fact, considered as capable of operating in that character with reference to the fact sought.

Division of things, considered as sources of real evidence: the source of the division being the nature of the relation they respectively bear to the fact of delinquency, considered as the fact indicated.

I. Subject-matter of the offence itself.—1. The person killed or hurt. 2. The thing stolen or otherwise taken in the way of depredation, or damaged, or destroyed. 3. The instrument of contract fraudulently uttered or fabricated. 4. The genuine money diminished: the counterfeit money fabricated.

II. Fruits of the offence.—In the case of depredation above mentioned, it is the goods taken in the way of depredation which constitute the immediate fruits of the offence: in the case of forgery of written instruments, and monetary fabrication, it is the profit, in whatsoever shape obtained: in the case of subduction by monetary forgery, it is the quantity of valuable matter subducted.

III. Instruments of the offence.—Examples:—1. In the case of homicide or other bodily injury,—the pistol, sword, club, knife, or other weapon: in case of poisoning,—the poison. 2. In case of depredation by house-breaking,—the picklock keys, the crow or chisel, the ladder. 3. In case of incendiarism,—the combustibles. 4. In case of forgery,—the engraved plates, the instruments for the fabrication of the appropriate papers. 5. In case of monetary forgery,—the coining tools.

IV. Materials of the subject-matter of the offence, or of the instruments of the offence, when they happen to have anything appropriate in their nature, exclusively or peculiarly fitting them for being converted into instruments of the offence.—Examples:—1. Silver or gold, in plates, or other suspicious forms, where coining is the offence in question. 2. Laurel leaves for distillation, where poisoning is the fact in question. 3. Drugs calculated for the purpose of adulteration, found in large quantities in the possession of a dealer in the article which such drugs are capable of being employed to adulterate.

V. Receptacles inclosing or having inclosed (as above)—1. The subject-matter; 2. the fruits; or 3. the instruments, of the offence.—Example:—1. The clothing of the person killed or hurt; 2. the house, ship, room, closet, stable, waggon, chest of drawers, package, case, in which the goods stolen, damaged, or destroyed, or the instruments or materials of the offence, were contained.

VI. Circumjacent (detached) bodies. Bodies circumjacent (though detached,) with reference to any of the objects above enumerated.—Examples:—The floor on which the person killed or wounded was standing; the chair on which he was sitting; the bed on which he was lying; the pathway spotted by his blood.

It is in virtue of some peculiarity in their condition, that the things in question are qualified to become sources of real evidence; evidentiary facts, with reference to the modification of delinquency in question—the fact indicated.

This condition may to the purpose in question be distinguished into relative and absolute: relative, bearing to the person in question any such relation as has the effect of indicating him in the character of the delinquent; absolute, indicating (without any indication of the person) the existence of the obnoxious event (the death, the damage to property by fire or other cause,) coupled or not with the indication of its being referable to human delinquency as its cause.

Physical real evidence (whether issuing from a real or from a personal source) requires to be distinguished into immediate, and reported. I call it immediate, in the case where the thing which is the source of the evidence is made present to the senses of the judge himself. I call it reported, in the case where it is not made present to the senses of the judge himself,—but the state of it in respect of the evidence, the evidentiary facts, said to be afforded by it, is presented to the judge no otherwise than by the report made of it by a person, by whom (in the character of a percipient witness) the state and condition of it in respect of the evidentiary facts in question is reported by him to have been observed.

In the case of immediate real evidence (as above described,) the evidence is of the circumstantial kind purely: it is a case of purely real, purely circumstantial evidence. In the case of reported evidence, it is of a compound or mixed kind, composed of supposed real evidence exhibited through the medium of personal; of circumstantial, exhibited through the medium of direct, evidence. To the reporting witness indeed, if his report be true, it was so much immediate, so much pure real evidence: but to the judge it is but reported real evidence.

The distinction is far from being a purely speculative one: practice requires to be directed by it. Reported real evidence is analogous to hearsay evidence, and labours more or less under the infirmities which attach to that modification of personal evidence, compounded of circumstantial evidence and direct,—of real evidence, and ordinary personal evidence (evidence given in the way of discourse:) it unites the infirmities of both. The lights afforded, or said to have been afforded, by the real evidence, are liable to be weakened in intensity, and altered in colour, by the medium through which it is transmitted: a topic which will come to be considered in the Book which treats of makeshift evidence.

From this infirmity results an obvious practical rule—viz. not to receive real evidence in the form of reported real evidence, when, without preponderant inconvenience, it can be had in the form of immediate real evidence: a rule exactly analogous to that which is alike obvious in the case of the analogous species of evidence called hearsay evidence. But of this elsewhere.

§ 2.

Infirmative five facts applicable to real evidence.

The evidentiary (i. e. the criminative or inculpative) facts belonging to this class being in so prodigious a degree multifarious,—in a correspondent degree multifarious must be the facts that apply to them respectively in the character of infirmative facts.

Yet, except in so far as the connexion between the principal fact and the evidentiary fact is necessary, there is not one such evidentiary fact but must have its correspondent infirmative facts, by the possibility of which its probative force is diminished.

Not that facts are altogether wanting, which (the evidentiary facts being by the nature of the principal fact so many criminative or inculpative facts) are applicable in common to all evidentiary facts belonging to the class of real evidence.

Of the infirmative facts of this description, five examples may be designated as follows, viz.—

1. Accident. The appearance unquestionable, but not having for its cause any agency of the supposed delinquent, directed to the production of the forbidden result in question: being produced either by causes purely physical, or (if with the intervention of any human agent acting in pursuit of any end) produced either by some other person, or by himself in pursuit of some unforbidden end.

2. Self-exculpative forgery in relation to real evidence (viz. the evidence composed of the appearances in question,) committed by some other person, guilty either in respect of the offence in question or some other offence. See, further on, Forgery in relation to Real Evidence.

3. Like forgery committed by some other person, who—though not guilty in respect of the offence indicated by the real evidence in question in its genuine state—yet, under the apprehension of the indications it affords to his prejudice, alters the appearance in question, with a view to the doing away of those indications.*

4. Like forgery committed by another person, in the view of subjecting the defendant to the imputation in question for a malicious purpose; i. e. for the purpose of causing him to suffer (either at the hand of the law or in the way of reputation) as if the offence in question had had him for the author of it or a partaker in it.

5. Like forgery committed in sport; i. e. without any design to subject the individual in question either to legal punishment or lasting disrepute, but only to momentary alarm.†

§ 3.

On the circumstantial evidence of delinquency, afforded by the possession of an article of criminative real evidence.

Nothing is more familiar than the word possession; nothing more variable and indistinct than the ideas which are wont to be attached to that word: but, in so far as on any occasion it is considered as being applicable in such sort that a thing considered as a source of criminative real evidence, being such in relation to the supposed delinquent in question, is considered as being in his possession,—in so far is the relation indicated by the word possession apt to be considered as evidentiary of delinquency in his instance. Of this species of criminative circumstantial evidence, possession of stolen goods affords the most obvious and frequently exemplified case.

Of possession of criminative evidence, the probative force will be liable to be varied according to a distinction expressible by the terms actual and antecedent: actual, when at the very time in question, the thing in question is supposed to be found in possession of the supposed delinquent; antecedent, when it is only supposed to have been in his possession at some antecedent point of time.

In the latter case, its identity is supposed, but is liable to become the matter of an additional question: in relation to which question, this or that supposed intrinsic mark of ownership, designed or undesigned, will frequently present itself in the character of an article of real evidence, serving to probabilize the supposed fact in question; viz. that the thing which is not now, was at some antecedent point of time, in the possession of the supposed delinquent.

To possession of criminative real evidence, in its character of a fact evidentiary of delinquency, apply, in the character of infirmative facts, those five which we have seen applying to real evidence itself when considered as criminative.

Additional infirmative facts applying to possession of criminative real evidence, and not to the real evidence itself, are—

6. (1.) Unconsciousness: when, though the situation of the thing in question is or has been such as to warrant its being said to be or to have been in the possession of the supposed delinquent, he himself has never been conscious of its being so: a state of things that may naturally enough have been brought into existence by any of the five causes enumerated (as above) under the head of real evidence.

7. (2.) Clandestine introduction. Subsequently to the introduction of the thing into the place by its introduction into which it is put into his possession, he becomes conscious of its being there; but, of the operation by which it was introduced, he had not, while the operation was going forward, any knowledge.

8. (3.) Forcible introduction: when it was with his knowledge indeed, but against his declared or known will, that the thing in question was placed in that situation in which it is considered as being in his possession: as, if by conspiracy among three men against one, one lays hold of both his hands, another puts into his pocket a stolen handkerchief, which the third, running up during the scuffle, finds there.

By the circumstance of force, supposing it proved, the criminative effect of possession (as above) would be destroyed altogether: but what may happen is, that the possession shall have been proved, when the force is not proved.

9. (4.) In case of supposed antecedent possession (as above)—non-identity of the thing in question. The man is seen running, and, on the path which he has been taking, a handkerchief is seen lying. A handkerchief resembling it had been seen in his hand; but though similar, it was not the same.

10. (5.) Furtherance of justice: receipt or seizure of the thing in question, in the view of applying it to its use in the character of a source of criminative evidence: as in the case of an official minister of justice so demeaning himself in the execution of his office, or an individual volunteering his services to the same effect.

Nothing can be more persuasive than the circumstance of possession commonly is, when corroborated by other criminative circumstances: nothing more inconclusive, supposing it to stand alone. Receptacles may be contained one within the other, as in the case of a nest of boxes: the jewel in a case; the case in a box; the box in a bureau; the bureau in a closet; the closet in a room; the room in a house; the house in a field. Possession of the jewel, actual possession, may thus belong to half a dozen different persons at the same time: and as to antecedent possession, the number of possible successive possessors is manifestly beyond all limit.

Connected with this subject, is the consideration of the probative force of possession of criminative written evidence.

When written evidence—such as (supposing it to have for its author the supposed delinquent) would, in the character of confessorial evidence, tend to induce a persuasion of his being guilty of the offence in question—is found in his possession,—the mere circumstance of its being in his possession will of itself, if separated from the circumstances that are so apt to be connected with it, scarce be capable of possessing criminative force sufficient to entitle it to the denomination of criminative evidence.

If, indeed, possessing with regard to him this criminative tendency, and speaking in his own person, it appears upon the face of it to be written with his own hand (as in the case of a memorandum written for his own use, or a letter written by him and intended to be sent to the person to whom it is addressed, but not sent;) there is no doubt that—if, being spoken, it would have amounted to self-criminative (i. e. to confessorial) evidence—it will, being written, amount to no less. But, in this case, its criminative force depends altogether upon what it contributes in the character of confessorial evidence, towards inducing a persuasion of his having been concerned in the forbidden act. From the circumstance of its being found in his possession, it can scarce be said to derive any probative force over and above what it would have possessed if found anywhere else: if, for example, being a letter, it had been sent to the person for whom it was designed, and by him produced in evidence.

It being still of such a nature as (had it for its author, as above, the supposed delinquent, and were it spoken in his person) would operate against him in the character of confessorial evidence; suppose it were to have for its author another individual, writing and speaking of the criminal transaction in question, whether in the character of an accomplice or an accuser. With a probative force proportioned to the strength of the indication afforded by it, and to the trustworthiness of the writer, it would operate in the character of the weak and makeshift species of evidence which will be brought to view in the next Book, under the name of casually-written or written casual evidence. But, from the circumstance of its being found in the possession of the supposed delinquent, it would scarcely derive any probative force, over and above what it would have possessed, if, in its way to his house, it had been intercepted—(for example, at a post-office.)

Addressed to him by word of mouth—or even, although not addressed to him, if spoken in his presence—a discourse of exactly the same tenor might have operated against him with a considerable degree of probative force. Why? Because—when the supposed delinquent and the virtual accuser were (at the time of uttering the virtual accusation) in presence of each other—not only the motive to contradict the accusation in case of its falsity, but the opportunity, the opportunity for immediate contradiction, exists. Noncontradiction of criminative discourse operates therefore as evidentiary of confession; though not without standing exposed to the debilitative force of various infirmative facts. But, where the form of the criminative discourse was in writing, and the parties not in presence—the opportunity of immediate contradiction not having place—the circumstance of the writing’s being found in the possession of the individual so addressed by it, scarce affords, of itself, any the slightest inference.

In the case of real evidence, possession may indeed, and not unreasonably, be considered as operating in the character of a criminative circumstance. Why? Because, by possession of things fit for use, a most natural (though sometimes not an infallible) presumption is afforded of actual use and ownership: including under the head of use, in the case of a mercantile man, sale, as being a mode of using particularly adapted to his situation in life.

But, as in the case of real evidence a man’s having possession of a thing of any sort affords of itself scarce any presumption of his having made it,—so, in the case of written evidence, mere possession of a manuscript of any kind, not being in his own handwriting, affords scarce any presumption of his having been the author of it. In regard to writings, as in regard to chairs and tables, possession is good evidence of ownership: but of the possessor’s being the author of the writings, it is not much better evidence than of his having made the chairs and tables.

True it is, that, where the authorship has for its proof similitude of hands (which is a sort of real evidence.) possession adds probable force to it. Why? Because, if it be extraordinary that writing, bearing such a degree of resemblance to that of Reus, should not be his, it is still more extraordinary that writing bearing such a degree of resemblance to that of Reus, and moreover found in his possession, should not be his.

Taken by itself, so weak is the probative, the criminative force of written evidence (understand all along such written evidence the tendency of which is to fix the imputation of the offence in question on the individual in whose possession it happens to be found,) that it is scarce susceptible of being rendered weaker by the consideration of any facts operating in the character of infirmative facts. But the infirmative facts capable of applying to it are of the same nature as those which have been seen applying to the case of possession of real evidence at large, when considered in respect of the criminative force with which it is capable of operating.

So far as concerns clandestine introduction (so it exceed not a certain magnitude,) a mass of written evidence possesses a means peculiar to itself for being introduced into a man’s possession without his consent or privity. It may have come, for example, by the post, addressed to himself: it may have come by the post addressed to some inmate of his, and thus remain in his possession for any length of time without his knowledge.

“On such an occasion” (naming it,) “my dear friend, you failed in your enterprise;” an enterprise (describing it by allusion) of theft, robbery, murder, treason: “on such a day, do so and so, and you will succeed.” In this way, so far as possession of criminative written evidence amounts to crimination, it is in the power of any one man to make circumstantial evidence of criminality in any shape, against any other.

It has perhaps very seldom happened that written evidence, tending to criminate a man in respect of the crimes in question, has been found in his possession, but there has been good and sufficient reason for regarding him as guilty. But, in these same cases, the principal reason has been constituted, not by this of possession, but by similitude of hands, or by other evidence.

Supposed facts that belong not to this head are apt to be urged in the character of infirmative facts, for the purpose of encountering the criminative circumstantial evidence constituted by possession of written evidence of the nature here in question. Such are—

1. Irrelevancy of the discourse, either with reference to delinquency in general, or with reference to the particular species of delinquency, or individual act of supposed delinquency, in question.

2. Unauthenticity of the script purporting to be in the handwriting of the supposed delinquent.*

§ 4.

Of interrogation, as an instrument for supplying the deficiencies of real evidence.

In the character of criminative evidences, besides the special and contingent infirmities to which they are respectively liable, the several mute evidences which compose the subject of this chapter have, as such, several infirmities in common:—1. The indications they afford are particularly apt to be incomplete. By written evidence, to which it happens to be found in the possession of the supposed delinquent, the lights afforded may be to any degree broken, imperfect, inconclusive. 2. From the intrinsic nature of these mute evidences, by which their criminative force is exposed to the opposition of so many infirmative facts, arises the question—a question that forces itself upon every rational mind,—these several possible infirmative facts, in the individual case in question, have they, or any of them, actually had place?

For filling up the above-mentioned deficiencies, for clearing up these last-mentioned doubts, the nature of things has provided one and the same natural and naturally efficacious instrument—interrogation.

On this, as on all other occasions, the way to know is to inquire: a proposition that from the beginning of the world to the present day has never been a secret to any human being, unless it be to English lawyers. And of whom to inquire? Of whom, but of the one person in the world, who, if the fact be in existence, cannot fail to know of it?—the one person in the world, in comparison with whose evidence, every other imaginable species of evidence, direct or circumstantial (except in so far as this naturally best evidence happens, by the force of sinister motives, to be driven into mendacity,) is a miserable makeshift: insomuch that if, on the score of hardship to the person so interrogated, there were any rational objection capable of applying to the extraction of the evidence from this most direct, and (in case of confessorial responsion) most trustworthy, of all sources,—it would operate, and with augmented force, to the exclusion of all other evidence.

The case in which the written evidence is confessorial, as compared with the case in which it is extraneous, here presents a difference. In the case of confessorial written evidence, the author of the writing and the possessor of it are but one person: there is not, therefore, of necessity more than one person of whom to inquire concerning it. In the case of extraneous written evidence, there are at least two persons: the person in whose possession it is supposed to be, and the person whose writing it is supposed to be. These two at the least: add to whom (in the case of a script purporting or supposed to be a transcript, or written from dictation,) the original writer or dictator, on the one hand; the transcriber or amanuensis, on the other.

Of these two persons, the possessor and the writer (dismissing, for simplicity’s sake, the accidental decomposition of the writer into the original and the derivative writer as above,) it may happen to the latter to be no longer forthcoming in such sort as to be subject to inquiry: death, imbecility, or expatriation, may have put him out of reach. In this case, the imperfect evidence, which to false science and blind prejudice has been the object of exclusive choice, is left by necessity in the character of the only receivable, because the only obtainable, evidence from that same source.

But, in the case of confessorial evidence, where the possessor of the evidence and the writer are one and the same person, if he be also the defendant, and in that character forthcoming, this first resource, the faculty of inquiring, remains accessible.

On this same occasion, there remains in both the above cases yet another sort of person, who, when the process of inquiry is going on, ought not to pass unheeded. This is the person, whosoever he may be (in the ordinary course of things, an official person,) by whose instrumentality the papers, which it was so much the interest of other persons to conceal, have been brought under the eye of justice. The papers produced in the character of criminative evidence, whether confessorial or extraneous, are all genuine. Be it so:—but the papers which thus are produced, are they all the papers that, in the character of evidence in relation to this same supposed delinquency, could have been produced? These are criminative: but did the same possession, or any other within the reach of the searchers, afford no others that were exculpative? These are questions which common sense, in aid of common probity, cannot fail of pressing upon the minds of all parties concerned; but to which the system of English procedure affords no adequate and all-comprehensive means of obtaining answers.

In pursuance of one of the most mischievous conceits that ever entered into a lawyer’s head—one of the most absurd if justice, one of the best imagined if injustice, were the object,—the above sources of necessary explanation have in great measure been cut off: and always to the prejudice of justice, on whichever side of the cause seated.

By the responsive testimony of the defendant, the existence of the criminative fact cannot be established, nor the clouds that hung over it be cleared up, because no man is to be compelled to accuse himself.

By the responsive judicial testimony of the same person, neither can the existence of any of the above-mentioned infirmative facts be established, nor the clouds that hung over it be cleared up; because no man is to be a witness in his own cause.

If it were by a plaintiff in the cause that a mass of evidences—partly inculpative, partly infirmative with relation to the criminative facts, or in any other way exculpative—were discovered and made forthcoming,—he produces what he pleases, he suppresses what he pleases: master at the same time of an accusation and a defence,—he produces the accusation, he suppresses the defence. Why?—Because no man is, with or against his will, to be a witness in his own cause.

Of these mischievous maxims, the breach is as notorious, and perhaps as extensive, as the observance, but, broken as they are, there remains force in them to do mischief in deplorable abundance, as well by their application to this topic, as to a multitude of others.*

§ 5.

Forgery of real evidence.

When the appearance of things leads to wrong conclusions, the deceit will sometimes be the pure work of nature, at other times the work of human artifice.

The former case is exemplified but seldom; when it is, its birth may, in the language in use among naturalists, be ascribed to the play of nature.

The irrational animals may be ranked, and to this purpose without injury, in the class of things. A case which, whether real or fictitious, is famous in the history of French jurisprudence, may serve for illustration to an English eye. There, as elsewhere, magpies have been remarked for a propensity to pick up and hide not food only, but other articles, though of a nature not applicable by these hoarders to any ascertainable use. An innocent person was accused of stealing from the house of a neighbour several pieces of gold, and, being convicted, suffered an ignominious death. The real thief was a magpie, which, without the privity of its master, had taken the money at different times, piece by piece, from the too accessible hoard of a neighbour, and deposited it in a place inaccessible to any other than the unfortunate person who suffered as for stealing it.

When the deceit is the work of art—has human artifice for its cause—it may be ranked with forgery: the act by which deceit is produced, or endeavoured to be produced, may be termed forgery of real evidence.†

In another, though a nearly related, point of view, forgery of real evidence is to real evidence what subornation is to personal: it is an attempt to pervert and corrupt the nature of things, of real objects, and thus force them to speak false. Of themselves the things are silent, or, if they speak, speak to the inculpation of the defendant: by the force he applies, a thing that was silent is made to depose falsely—a thing that was speaking against him is either made to speak in his favour, or at least put to silence.

As well in the case of real evidence as in the case of written evidence, forgery is susceptible of one main distinction—into fabricative and obliterative. The case where, in the employment of expedients of this kind, the endeavour of the criminal is simply to remove the imputation from himself, without seeking to fasten it on anybody else, is as common as the other case is rare. Whatever be the crime, a main object of the endeavour of the criminal is of course to expunge, as effectually as possible, all traces of the commission of it. The hands, the garments of the murderer, have they received a stain from the blood of the deceased? The most obvious reflection suggests the removing the stain from everything from which it can be removed, and the destroying or hiding anything from which it cannot be removed. To superinduce upon any object an appearance, the tendency of which shall be to disprove the commission of the crime,—whether by disproving the existence of the criminal act or some criminative circumstance, or by proving the existence of some justificative, or extenuative, or exemptive, circumstance;—an artifice of this tendency would suppose an ulterior degree of refinement, and would come under the denomination of fabricative forgery of real evidence.

As it is only through the medium of physical facts that psychological facts can be brought to view, it is, consequently, through the medium of physical facts alone, that any deceptitious representation of psychological facts can be conveyed. Physical facts alone, and not psychological facts, are the only one of the two sorts of facts upon and in respect of which forgery can, properly speaking, be committed—to which the operations indicated by the term forgery can bear any direct and immediate application.

As to physical facts; although, among the several modifications of which real evidence of the evanescent kind is susceptible—evidence consisting of motions, sounds, colours, smells, tastes, and (if the word may be used) touches,—there is not perhaps a single article that has not, at one time or other, been taken for the subject of that sort of deceptitious operation which, applied to other subjects, has received the name of forgery; yet it is among the modifications of permanent real evidence that we are to look for that modification of forgery which is most in use, most readily apprehended, and most apt to present itself under that name.

The beautiful history of the patriarch Joseph will afford us one exemplication of forgery respecting real evidence. Preparatory to the affectionate forgiveness he meditated to extend to his brethren, his plan required that an alarm should be raised in their guilty bosoms—an apprehension of being punished, not indeed for the barbarity of which he had formerly been the victim, but for a supposed offence of recent date, of which they were altogether innocent. In this view it was, that, into one of the sacks that had been filled with the corn which they had been buying, he caused a cup to be introduced, which, not having bought it, they had never meant to take. Here then we have an example of forgery of real evidence of theft—forgery of real evidence of the permanent kind—forgery of evidence presented by the permanent situation of a certain material object, a certain real body, principal object and subject-matter of the supposed theft, the imputation of which it was intended thus to fix upon them, though for a time only, and for a generous and friendly purpose.

Another example may be afforded by the modern case of Captain Donnellan. The smell afforded by the laurel-water, the poison supposed to have been employed by him as the instrument of death,—this important phenomenon, susceptible of permanence in respect of the substance itself and its odorous power, evanescent when considered in respect of the sensations of which, on any given occasion, it might have been productive,—was, at any rate (so long as the phial continued impregnated with it,) a lot of real evidence—a lot of evidence indicative, at once, of the physical act by which the poison was applied to the organs of the patient; of the intention, the murderous intention, in pursuance of which these acts were performed; and of the criminal consciousness with which that intention was accompanied. Conscious of all these facts, as well as of the punishment annexed by law to such crimes, Donnellan, on observing how the phial had become the subject of observation, took it up, and, with the apparent view of doing away the instructive smell, poured water into it, and rinsed it out. The forgery thus actually committed was of the kind that has been distinguished by the name of obliterative. Suppose now that, instead of simply clearing the phial of the existing smell, it had been his plan, for further security, to superinduce another—the smell, for instance, of some highly-scented medicine, such as would have been suitable to the patient’s case,—fabricative forgery would thus have been added to obliterative.

In the case where guilt, guilt on the part of the forger, really exists,—the inculpative fact, of which the act in question operates as evidence, is a psychological fact—the existence of culpable consciousness—consciousness that the act, whereby the effect is intended to be produced, is of the number of those which stand proscribed by one at least of the two guardian sanctions, the political and the moral, if not by both.

The presumption thus afforded by this species of circumstantial evidence—the presumption of correspondent delinquency—is obviously a strong one; it is, however, far from being a conclusive one. Cases, supposable cases, are not wanting, in which (supposing them realized) the failure of the presumption, the erroneousness of the inference, will be obvious and indisputable; nor are instances wanting in which these several supposable cases have been exemplified in real life.

1. Forgery (exculpative) in self-defence against a false accusation; forgery having for its object the removal of appearances tending to fasten the imputation of delinquency upon an individual really innocent. The party in question being innocent,—suppose at the same time a number of natural appearances tending to induce a persuasion of his being guilty. Take away the pre-existing source of deception, the forgery in question is true evidence of guilt: add the pre-existing source of deception, the forgery by which the deception from this source is endeavoured to be done away, is, in the character of evidence of guilt, fallacious.

No system of established procedure is yet known that does not afford instances—instances in greater numbers than an eye of sensibility can contemplate without concern and apprehension—where individuals, really innocent, have sunk under a load of imputation heaped upon them by fallacious circumstantial evidence. Suppose an article of this description, pregnant with false inferences,—an article exhibiting appearances susceptible of permanence:—the dagger employed by a murderer, conveved into the pocket of an innocent man; one garment of an innocent man stained, by design or accident, with blood from the body of a man who has been murdered. Suppose the innocent man detected in his endeavours to rid himself of the dagger, to wash away the blood: the dagger, the blood, fallacious as they are, are, notwithstanding, evidence: these endeavours, innocent as they are, will accordingly be, in appearance at any rate, and in a certain sense in reality, forgery of real evidence.

The case of the unfortunate Calas affords an exemplification of more than one of the incidents by which the conclusiveness of an inculpative presumption may be proved. A son of his had received a violent death from his own hands: the father was brought to trial on a charge of murdering the son. As far as the confusion of mind into which he was plunged permitted, he had obliterated or changed some of the appearances about the body of the deceased, and other circumjacent bodies: here was forgery of real evidence. On his examination, he denied some of the facts by which the non-naturality of the death was indicated: in this mode, as in the former, he concealed—not indeed the fatal act itself, the act by which the process of strangulation was effected (for in that he had neither part nor privity,)—but some of the evidentiary facts by which it was indicated: here was clandestinity. To what end all these aberrations from the line of truth?—to cover guilt?—No; for there was none anywhere. The object was to save the reputation of his departed child, and thereby the reputation of the family, from the ignominy which, had the direct truth been known, would (he was but too well assured) be stamped upon it by a most mischievous and endemial prejudice.*

2. Forgery (inculpative) acted in sport: forgery committed in endeavouring, for a sportive purpose, to fasten upon an innocent person the imputation of delinquency in this or that shape for a time.†

In the story already referred to—the story of Joseph and his brethren—we may find an exemplification of this case; though the sport was there not of the mirthful, but of the serious and moral—not of the comic, but of the tragic kind. Suppose the patriarch,—minister as he was to an absolute king,—suppose him, notwithstanding, amenable to the ordinary dispensations of justice: suppose his fraternal and generous project observed, and mistaken for a serious hostile one:—the ultimate innocence of intention would, when demonstrated, have been sufficient to repel the presumption afforded by the apparent indications of a design deceptitious and injurious, and to add to the instances by which it is proved that, in the character of inculpative evidence, this, any more than any other species of evidence, is never entirely exempt from the danger of proving fallacious.

Penal justice is not the only theatre of a fraud of this complexion: it is equally applicable to non-penal cases. It may have for its object the subjecting a man to punishment, or to the burthen of making satisfaction, when undue: it may have for its object the exempting a man from punishment when due: it may equally have for its object the causing a man to be put into possession of some right to which he has no just claim: it may have for its object the exempting a man from some obligation, which, as necessary to the collation of a correspondent right, some other person has a just claim to see imposed upon him.

The clandestine removal of a land-mark affords an example of a case of forgery of real evidence, having for its object the acquisition of a proprietary right. Considered in respect of its most obvious and most frequent motive and efficient cause, it is a contrivance for stealing land: it is a succedaneum to the forgery of a deed, designed to serve as evidence of a title to land. Considered as the act of a person to whom the loss would not be productive of any profit, it would at any rate be a contrivance for injuring a person in his property, by destroying his title to land.

By the foregoing theoretic views, a few practical instructions are obviously suggested.

The first is, that it is an office incumbent on the legislator, and, under his authority and guidance, on the judge,—whenever any material objects present themselves as capable of affording real evidence in the cause (be it penal, be it non-penal,)—to take such measures as may be suitable to the nature of the case, for securing their continuance in that state in which they shall be still exhibitive of the evidence which they appeared to exhibit at the time of their being first observed; and to prevent them from either passing of themselves, or being purposely or accidentally brought, into any other state, in which the evidence exhibited by them might be in danger of proving fallacious.

The attention bestowed upon this object, is, in the French law, particularly conspicuous: more so than in the English. In the former, the judge has general explicit duties presented to him, and explicit rules for his guidance, with commensurate powers. In the English law, no special powers extensive enough to embrace the object are possessed by any magistrate; and in the exercise of his powers, so far as they happen to be adequate, he is left to his own unassisted discretion, without any instruction for his guidance.

Before any suspicion has arisen—before any steps have been taken, in the view of bringing the delinquent to justice—the field for this species of forgery is open to him; and no provisions taken by the legislator can be of any use, the moment for making application of them not being yet come. But as soon as suspicion has told her tale to justice, and the servants of justice have been put upon the search for evidence, then it is that things as well as persons may in this view be fit objects of their care.

2. Another subject for the consideration at least of the legislator, is, the putting (where practicable) this species of forgery, under its several applications, upon the same footing in respect of prohibition and punishment, as forgery of written evidence, when directed to the same ends.

By the compilers of the books of Romano-German law, Prussian* as well as Austrian,† removal of land-marks constitutes an independent species of delinquency, under a title by itself, not referred to frand, the crimen falsi, or any other genus. Under the same denomination, mention had been found to be made of it in the original books of ancient Roman law.‡ This, it is evident, is a case of forgery of real evidence, in which the obliterative and the fabricative species are combined. In so far as the designation that had been given of the real boundary is done away by it, it is obliterative; in so far as an indication of a false boundary is presented, by setting the mark down again in a wrong place, it is fabricative.

In this spot, and in this alone, the penal law of these two German states has covered a portion, important indeed in its nature, but comparatively minute in its extent, of the wide field of this modification of forgery.

Neither the English nor the old French law have made so much as this small advance towards the comprehension of this fraud. The French, in their adoption of the Roman law, seem somehow or other to have dropt what the more faithful Germans have copied.

In French jurisprudence, however, instances are not wanting of the application, real as well as suspected, of this species of fraud, to the most mischievous and flagitious purposes.

In the case of Le Brun,∥ who died of the torture that had been unjustly inflicted on him for his supposed participation in the murder of his mistress, the judicial officers, when possession had been taken of an old key that had been in his occupation, were charged by his advocates with having altered it into a master-key, for the purpose of his appearing to possess a facility, which in fact he did not possess, for the commission of the crime.

Under the Roman law, the word stellionatus served as a head to comprise a hodge-podge of offences, chiefly of the predatory class, bearing scarce any other resemblance to each other. Out of six, the third is si quis imposturam faciet in necem alterius—if any one shall have employed imposition in the view of depriving another of his life. Under this head, forgery of real evidence for that particular purpose may probably have been meant to be comprised.

A lizard is a cunning animal, and a stellio is the most cunning of all the lizards, as Pliny, the most accurate of natural historians, assures us. It is upon the ground of this anecdote of natural history, that the Roman lawyers have jumbled together so many other offences which require no contrivance, under the name of stellionatus. Stellionatus should, by this description of it, have been synonymous to fraud, or been used to express exclusively some modification of fraud.

CHAPTER IV.

OF PREPARATIONS, ATTEMPTS, DECLARATIONS OF INTENTION, AND THRLATS, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUENCY.

§ 1.

Probative force of these circumstances considered in themselves.

I. Preparations;—viz. acts done in the intention of giving birth to the act considered as the principal fact, the fact said to be evidenced.

The event having actually taken place,—if the acts considered as preparations with regard to that event were such as properly come under that name, their probative force with reference to it is out of dispute, and they are assumed to be conclusive.

Of acts of this description, and those others that follow them under the same more extensive denomination of precedential acts, it may be of use at the outset to observe, that—although in point of time the acts themselves are essentially prior to the principal act or other fact—it will frequently happen, that the time when they are understood to be such, the time when their connexion with the principal fact is perceived, and even the time when they themselves come to light, is of later date.* That it should be so is the more natural, inasmuch as—if the design, being of a criminal or in other respects an obnoxious nature, is understood (or though it be but suspected)—a natural though not a necessary result is, that it should be frustrated: that the obnoxious event should be prevented from taking place.

It is in the penal law that acts of this description have been most frequently brought to notice: the purchasing, the collecting, the fashioning, the instruments of mischief; the repairing to the spot destined to be the scene of it.

Not that the facts which are apt to come in question in a non-penal cause are in their nature by any means destitute of this species of circumstantial evidence:—1. Preparations for the ceremony of interment have been brought forward as circumstantial evidence of expected, though more naturally of precedent, death; most commonly to prove a death which really took place: rarely, but not without example, to afford a fallacious proof of the death of a person at that time still in existence.* 2. Preparations for birth (i. e. for parturition) have been brought forward, sometimes to repel the charge or suspicion of the destruction of an illegitimate child by the mother, sometimes to afford proof of filiation, real or pretended. 3. Preparations for the marriage ceremony have been brought forward, sometimes as presumptive proof of the subsequent performance of the ceremony; sometimes as proof of an engagement to that effect, when satisfaction for the breach of it has been claimed.†

When the act projected is of a criminal nature, or where on any other account the discovery of the design threatens to be followed either by the frustration of it, or by any other inconvenience, either to the agent in question, or to any other person or persons, whose welfare is regarded by him with an eye of sympathy,—the natural state of things is, that the preparations should be endeavoured to be concealed. Understand, the preparations for bringing about the event which is particularly and for its own sake endeavoured to be brought about. But in this main and direct design, are involved by accident a various and almost indeterminate multitude of incidental and collateral ones: 1. Preparations for giving birth to productive or facilitating causes, of all kinds and degrees of propinquity or remoteness; for removing obstructions of all kinds from all quarters, and, among others, for obviating suspicion of the design itself; 2. Preparations as it were of the second order, for preventing discovery or suspicion of the preparations of the first order, viz. of those which are pointed most immediately to the accomplishment of the principal design; 3. To these preparations of the second order, imagination will easily add preparations of the third and fourth order, and so on. For it is evident, that to this chain of preparations—to the chain of eventual or intended causes, capable of being thus spun out of the stores of wayward industry—there can be no certain limit.

The measures thus taken for concealment or illusion—for involving facts in darkness, or covering them with false colours—will sometimes appear in the form of discourse, oral or written; sometimes in the shape of deportment,—physical acts at large. Whatever a man does, he does either by his own hands, by his own immediate operative powers, or by the hands of others. When he gives motion to the hands of others, it will generally be by words. So, if the hands or the lips of others be prevented from raising up obstructions to his designs: and, among the persons thus wrought upon—the persons prevented from becoming or continuing to act in the character of opponents, or converted into coadjutors—may be the intended sufferer himself.

On March 30th, 1781, at the assizes at Warwick, Captain Donnellan was convicted of murder, committed by poisoning Sir Theodosius Bonghton, in whose estates he had an interest in right of his wife. Under the present, as well as several succeeding heads, this case will be found pregnant with a variety of instructive illustrations. The determination was formed, that, in some way or other, the death of the young man should take place. To shut the door against suspicion, a notion was to be propagated, that his state of health was desperate; that death—speedy death—was certain; that his imprudence was continually heaping up causes upon causes.‡ The poison employed was distilled laurel water. The plant was to be found of course in the garden; and the murderer, not to have poison to buy, had provided himself with a still for the fabrication of it. He practised distillation frequently; and the room in which he operated was kept by him locked up.∥ The young man had a trifling complaint, for which he was taking medicine: the contents of one of the phials were to be got rid of, and the poison substituted. The phials, as they came in, used to be placed by him in an inner room, which he had been in the habit of locking up. He happened once to forget to take his medicine. “Why” (says Donnellan) “don’t you set it in your outer room? you would not then be so apt to forget it.”—The fatal advice was taken: and thus the necessary opportunity was prepared.

Preparations capable of a specific description are frequently and properly made the subject of a separate prohibition;—converted into distinct offences.

Where the connexion between any such preparatory act and its correspondent principal act is looked upon as sufficiently intimate—where the existence of the former is looked upon as sufficiently conclusive with regard to the existence of the latter—the vigilance of the legislator has not uncommonly exercised itself in laying hold of the preparatory act, and converting it, by his prohibition and punishment, into a separate offence; instead of taking the chance of the judge being able to treat it upon the footing of an evidentiary act, with reference to the corresponding principal act, and so bringing it within the punishment already attached to such principal act. Forgery, coining, but, above all, smuggling, afford so many instances of this line of legislative practice.* Under the head of Indirect Legislation, it has been brought to notice in another place.†

To an operation of this sort an objection presents itself, which, when it is not conclusive as a bar, may at any rate be useful as a caution. Such an operation, it may be said, will be either useless or mischievous: useless, if the effect of it be not to cause a man to be convicted of the offence in a case where otherwise he could not have been convicted; mischievous, in the opposite case. To the judge alone it belongs to be informed of the circumstances of each individual case; to the legislator not. If, in any given instance, to him who is thus informed of those circumstances, the evidentiary act, even with the addition of whatever other evidence the case may happen to furnish, does not appear to afford a sufficient ground for pronouncing the existence of the principal act,—the operation of the legislator—the obligation which he lays on the judge to act as if the ground were sufficient—is an act of injustice: it is productive of punishment where not due:—and, in the only remaining case, justice, at any rate, does not gain by it.

To this objection three answers may be applied.

1. In the first place: the act of the legislator—the act whereby the prohibition is issued, together with its punishment—is (as such) prior in its date to the occasion by which any act in disobedience of it can be produced. The subject has complete and effectual warning of it (for, if not, the answer, it must be confessed, does not apply:) the subject has complete warning of the prohibition put upon the newly-prohibited act, the formerly unprohibited and amply evidentiary act; and the abstaining from it is as much in his power as the abstaining from the principal act. If indeed the law—instead of being a law precedent to the offence, a law issued with the ordinary precedent notice—were a law subsequent to the offence—were, in a word, in the language of English jurisprudence, and after the fashion of every decision of jurisprudence in a new case, that monster of iniquity an ex post facto law;—then, indeed, the objection would be not only applicable, but unanswerable. But this is not supposed to be the case.

2. In the next place: the more effectually to secure innocence from the punishment levelled against guilt,—when an act that accidentally might now and then, in the character of an evidentiary act, have involved the agent in the punishment appertaining to the principal act,—when such an act is taken in hand by the legislator, and converted into a principal and independent offence, care ought to be, and commonly is, taken, to interweave in the description of the new-created offence, explanations, serving to limit it, and make sure of confining the application of the punishment to the case where the quondam evidentiary act, the supposed act of preparation, is really such—is really connected in the mind of the agent with the intention of committing the principal act.

3. In the third and last place: to the last-mentioned precaution may be, and not unfrequently is, added another,—viz. the reducing to a degree below that of the original or principal offence, the punishment annexed to the evidentiary, the new-created offence. Instances of this sort, in no inconsiderable number and variety, would probably be found in the laws of all countries relative to smuggling: they certainly are to be found in the British laws relative to that multifariously-diversified species of offence.

What has been said of preparations may apply, with little variation, to attempts; since—with reference to the ultimate object of intention, the ultimate result—all attempts, all motions previous to consummation, may be considered as preparations. By attempt, we understand action, carried beyond mere preparation, but falling short of execution of the ultimate design, in any part of it.

Between preparations and attempts, the distinction will (it is evident) be, in many cases, very indeterminate; and in different cases it will be widely different. In penal cases, it will be different according to the nature of the species of offence: in offences of the same species, it will be different again, according to the different circumstances in which, the different means by which, the individual offence in question is endeavoured to be committed. In case of homicide, for example,—according as the intended scene is laid on shipboard or by land; on the public way or in a private chamber; by drowning, fire-arms, or poison.

Fortunately, on the present occasion, these distinctions are as useless, as, on any occasion, they would be nice and intricate. So the ultimate design be evidenced, whether the act by which it is evidenced come under the denomination of an attempt, or only of an act of preparation, makes in this respect no difference.

II. Second example of circumstantial evidence decidedly precedent to the fact evidenced, Declarations of Intention:—of the intention to perform the act, the performance of which constitutes the principal fact, the fact evidenced, as above.

This species of circumstantial evidence bears a close analogy to the foregoing. Declarations of intention are expressions of intention purposely conveyed by words: by preparations, purposely or not, the intention is expressed by acts. The former belong to the head of personal evidence by discourse; the latter to that of personal evidence by deportment.

III. Threatening, or Menacement. A threat, an act of menacement, is a name given to a declaration of intention, in the case where the act declared to be intended is of the number of those of which it is supposed that the effects would be of a painful nature, with reference to the person to whom the declaration is addressed.

The reason for giving to a declaration of intention in this case a separate mention under a separate name, is, that it necessarily assumes a separate name in every system of penal law; inasmuch as, where the act declared to be intended is considered and treated as an offence, so is (or at any rate, in cases of a certain degree of importance, so ought to be) the declaration likewise.

A declaration to this effect may be expressed by any other signs as well as by words. Preparations, when open, may have for a collateral object this collateral result.

It matters not whether the threat be addressed immediately to the person on whose mind the unpleasant impression is intended (or declared to be intended) to be made,—or to any other person or persons, to the intent that, in one way or other, at some time or other, it may reach his notice. In a word, if it be in the shape of a discourse, oral or written, that the threat is meant to be conveyed, it matters not whether he be mentioned in the second person or the third.

For the reason given above, menacement is presumptive evidence of the act; i. e. that it was by or with the co-operation of the threatener that the act was done: but, for the reason also given above, the evidence is not of itself absolutely conclusive.

§ 2.

—Infirmative circumstances applicable.

I. Preparations and Attempts:* infirmative circumstances applicable to them.

These circumstances have been already considered in the character of criminative circumstances, evidentiary of the part supposed to have been taken by the supposed delinquent in the production of the noxious result.

Remain to be brought to view the several possible facts by which, in the character of infirmative facts, their probative force, in regard to the part supposed to have been taken by him, is capable of being diminished.

1. Intention different ab initio;† in which case, the result intended to be produced may have been either—1. altogether innoxious;‡ 2. less noxious than the result that actually took place; or, 3. equally or more noxious.∥

2. Intention overshot by the result. But in this case the disprobabilizing, the infirmative force of the infirmative fact, applies, not to the whole of the result, but only to the excess of the result produced over the result intended.*

3. The intention changed; viz. at a time posterior to the attempt or course of preparation, which, being proved, is exhibited in the character of a probabilizing circumstance, evidentiary (as against the supposed delinqent) of a participation in the production of the mischief. Here, as above, it is only on the supposition of the fresh design’s being less mischievous than the original one, that the possibility of the infirmative fact in question can have (or at least ought to have) any influence in practice.

4. Intention persisting, power failing: the result, though intended to be produced by the supposed delinquent, having in fact been produced, not by any act of his, but by other means.†

5. Among co-delinquents, the operation of the immediate criminal agent varying from the common design agreed on. This, a case frequently exemplified, includes the three first cases, being distinguished by no other circumstance than that of the number of the offenders.

Two or three engage in a plan of robbery: one of them, in prosecution of the design, commits a murder—on his part intentional, but not necessary to the design. Whether, in the intention of committing the greater crime, the accomplices in the lesser did or did not take part, is among the questions which (in a case of homicide on the occasion of a design of robbery) have been passed over as not worth notice by the unfeeling negligence of English judges.‡

In an early and rude state of society, the attention of those on whose will the fate of their fellow-creatures depends, has everywhere been almost exclusively pointed to physical facts, regardless of psychological ones. In the instance of the Chinese lawyers, Englishmen being the eventual or intended victims of it, this barbarity has attracted notice. But it, on this score, the first stone be due to the head of the Chinese lawyer, the second is, on a multitude of similar accounts, due to those of his learned brothers on the English bench.

II. Declarations or other expressions of intention: infirmative facts applicable.

To the criminative force of discourse expressive of an intention to commit an offence of the nature of that eventually committed, the supposable facts that apply in the character of infirmative considerations, are, in species and denomination, the same that have been seen applying in the case of preparations and attempts. But, forasmuch as words are apt to be uttered with less consideration than a course of preparation attended with labour and hazard is wont to be engaged and persevered in,—the probative force of the criminative circumstance seems in general less considerable, and at the same time the disprobative force of the infirmative consideration more considerable.

Being of the nature of confessorial evidence, viz. of that species of it which is extra-judicial and spontaneous, differing only in respect of relative time (the confessorial evidence being subsequent to the event, the evidence here in question antecedent,) it stands exposed to the disprobative force of the same infirmative considerations as confessorial evidence, which see.*

1. If the state of things expressed in the former instance by the words intention different ab initio be exemplified here, this is as much as to say, that the declarations that have place here (viz. the declarations of an intention to commit the crime that in fact was afterwards committed) were false. Supposing such to be the case; the inferences that may be drawn from them, and the infirmative considerations that apply to their probative force in the character of criminative circumstances, are the same as in the case of false extra-judicial and spontaneous confessorial evidence, or false responsion, which see.†

The supposition that these declarations are false, may, at first view, be apt to appear inconsistent with the supposition all along made; viz. that the crime in question has actually been committed, and that by whom committed (or rather, whether committed by the supposed delinquent) is the only remaining subject of inquiry. But, whether the crime actually committed, by the supposition, had or had not the supposed delinquent for a sharer in it,—the declarations made of an intention to commit a crime of that or a similar description may, at the time when made, have been false: and declarations of an intention to commit a crime are no less susceptible of being false, than declarations of the opposite cast, viz. declarations of an intention to abstain from the commission of that or a similar crime.

See Chapter VI., in which the various inducements by which a man may have been engaged to avow the commission of a crime, committed or not committed, are brought to view.

III. Threats:—infirmative considerations applicable.

To threaten to do a criminal act is to express an intention of committing it. The only difference is, that, when a man threatens to commit a crime, he not only expresses an intention of committing it, but declares this intention in the design that such his declaration should come to the knowledge, and be productive of fear in the mind, of some person in whose mind (if committed) he expects it would be productive of grief.

Of course, whatsoever infirmative considerations apply to declarations of intention taken at large (viz. declarations of an intention to commit the crime afterwards committed,) apply to threats; viz. to threats bearing relation to the same crime. But in the case of threats, these infirmative considerations seem in some instances to apply with superior disprobative force.

In the case of threats, very commonly the result really intended to be produced is,—not the mischief of the crime, nor, therefore, the crime itself,—but only the apprehension of it—the alarm, the terror naturally attendant on the expectation of it—on the contemplation of it in the character of a mischief likely to take place. If so, it is in this way that the state of things expressed by the words intention different ab initio is here verified.

The consideration that contributes to render the falsehood of the declaration in question in this case probable, and consequently to weaken the probative force of this circumstance in the character of a circumstantial evidence of the imputed delinquency, as against the supposed delinquent, is, the tendency of such a prediction to obstruct and frustrate its own accomplishment. By threatening a man, you put him upon his guard; and force him to have recourse to such means of protection, as the force of the law, or any extra-judicial powers which he may have at command, may be capable of affording to him.

Whatever may be the disprobative force with which, in the character of an infirmative fact, this tendency on the part of an antecedent threat may operate in opposition to its probative (viz. to its criminative) force,—the indication afforded by this infirmative consideration can never be peremptory and conclusive. By the testimony of experience, criminal threats are but too often, sooner or later, realized. To the intention of producing the terror, and nothing but the terror, succeeds, under favour of some special opportunity, or under the spur of some fresh provocation, the intention of producing the mischief; and (in pursuance of that intention) the mischievous act.

Note, that among the tendencies of menacement is that of operating at the same time as an evidence of an ulterior and distinguishable evidentiary fact; viz. operation of corresponding motives, existence of corresponding dispositions: permanent sources of the delinquency in question, in the instance of the supposed delinquent. As to this point, see further in an ensuing chapter.‡

A question which may occasionally arise is, how far mendacity on the part of a witness may be considered as probabilized by evidence proving him to have previously threatened to prejudice by his testimony a party on a side opposite to that on which he is called: in particular, in a criminal case, to have threatened to give such testimony as should render certain, or more or less probable, the conviction of the defendant.

In this supposed circumstantial evidence of mendacity may be seen a very frequent source of delusion, and a very useful instrument in the hands of delinquents and their advocates.

If the threat be conditional, next to nothing is proved by it: if absolute, still less. “If you do not so and so as I would wish, I will testify against you.” With superior and refined morality, it certainly is not consistent for a man thus to render dependent on a compliance with his personal wishes a service which he owes to justice. But does it follow that, because—out of court, and before you have been called upon for your testimony by the official ministers of justice—you reserve to yourself (or rather declare yourself to have reserved to yourself) the faculty of making or not making, as you think fit, the preliminary disclosure which may eventually lead to prosecution,—that therefore, if by the power of justice called upon for your testimony, you will perjure yourself?

A threat, however, of this kind—though, taken by itself, it operates with very little force in the way of presumptive evidence of mendacity—may be of considerable efficacy in corroboration of other circumstantial evidence to the same effect.

CHAPTER V.

OF NON-RESPONSION, AND FALSE, OR EVASIVE RESPONSION, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUENCY.

I. First article of that class of circumstantial evidence, the nature of which is to present itself at a period of time subsequent to that of the principal fact,—non-responsion judicial: silence on the part of an individual (being a party to the cause) at the time of his being subjected to examination in due form of law: wilful forbearance to make answer, in the character of a deposing witness, to any relevant question put to him in the course of a judicial examination. In this case is involved the supposition of the establishment of the practice in question, in the instance of both parties, plaintiff and defendant, in both sorts of causes, penal and non-penal: and, in the supposition of the establishment of that practice, is again involved the supposition of the propriety of it—of the propriety of it, in the utmost latitude of which it is susceptible, as above. Is it then proper, and to an extent thus unlimited? Yes: and that for two sorts of reason. In the first place, because the notions by which, in one of the four cases (viz. that of the defendant in a cause of a penal nature,) it stands condemned, are mere prejudices—groundless and utterly indefensible prejudices—conceits, founded not on the principle of utility, but solely on the principle of caprice. In the next place, because, in this case, as in the three others, the practice in question is the most powerful as well as the safest of all instruments that can be employed for the discovery of truth. The reasons in favour of the former of these positions will be exhibited under other heads:* the reasons which the latter has for its ground will now appear as we advance.

The fact of which this sort of behaviour operates as evidence—the conclusion to which it tends, the inference which it appears to warrant—varies in its description, as already intimated, according to the quality of the cause, penal or non-penal, and the relation which the party, plaintiff or defendant, bears to it.

Case 1.—Let the cause be a penal one, and the person examined in the character of a witness, the defendant. In this case the conclusion will naturally be, that he is guilty of the offence of which he stands charged. Thus stands the proposition: the proof will be exhibited further on.

Case 2.—Let the cause be a non-penal one, and the party examined be the defendant, as before. The conclusion is of the same kind, varying only with the nature of the cause. The predicament he stands in is of the number of those in which a man stands bound by law to take upon him the obligation sought to be imposed upon him by the plaintiff’s claim.

Case 3.—Let the cause be a penal one, as before, but the party the plaintiff. In this case, if it be a cause purely penal,—the demand made by the plaintiff being purely the infliction of punishment, and that a punishment not including any effect of a nature to afford personal satisfaction to himself; as is the case where the plaintiff prosecutes for the public merely, in which case he is a public officer, acting without personal interest; in this case it cannot fall to the share of the plaintiff to be examined. If by accident (and it could happen only by accident) it did fall to his lot to be examined, wilful forbearance to answer is a result that can scarcely be supposed, it being difficult to suppose a motive that should engage him to it: and supposing it to take place, no conclusion can in the nature of the case be drawn from it. If the cause be of the mixed kind, in which a non-penal demand is combined with the penal one—a demand of satisfaction for the benefit of the individual, with the demand for punishment to be inflicted for the benefit of the public,—in this case, so far as concerns the non-penal part of the demand, the case coincides with the case next following. The conclusion turns to the prejudice of the plaintiff, in the same way as we saw it turn to the prejudice of the defendant in the preceding non-penal case.

Case 4.—Cause, non-penal; party, the plaintiff, as before. Conclusion, the plaintiff’s claim ill-founded: the defendant not in fact in that situation which it is necessary he should be in, to give legality to the demand made upon him by the plaintiff—the demand that he shall be compelled to submit to the obligation sought to be imposed upon him at the instance of the plaintiff, the obligation correlative to the plaintiff’s pretended right.

Now then as to the proof—the grounds, of the conclusion, that the party refusing to make answer to questions put to him by authority of justice, was in the wrong, in respect of the point in controversy in the cause. And, first, where the party in question is the defendant, and the cause a penal one.

1. Supposing him not guilty, such silence cannot but be detrimental to him: supposing him guilty, it cannot but be advantageous to him; that is to say, supposing the judge were to abstain from drawing the inference which no individual viewing the matter in the same point of view ever fails to draw, on the ground of the known principles of human nature and common sense.

To answer one way or other, cannot but be in his power. No question whatever to which a man, any man whatsoever, is not able to make an intelligible answer of some sort. Quest. What do you know about this business? Ans. So and so: or, I know nothing about the matter. Whatever be the question, whosoever be the individual to whom it is propounded, an answer to one effect or the other may in every case be given by him. The answer may be true or false: if false, the case belongs to the head next considered.

The party is exposed to suspicion—to a strong and serious suspicion, of having been really guilty of the offence of which he stands accused. Followed or not followed by punishment,—the persuasion entertained respecting the truth of the accusation—entertained by every man to whose cognizance the particulars of the examination present themselves, will be the same. The part that will be in general acted on such occasion by a man who feels himself guilty, being made known to all mankind by reason grounded on experience,—so sure as that part is acted by any man, so sure will he be looked upon as guilty by all who know of it: and, being so looked upon, the disrepute attendant upon the offence—the punishment attached to it by the popular, or say the moral sanction—the forfeiture of a correspondent portion of esteem, and consequent good-will, attaches upon him of course.

Supposing him not guilty, every fact and circumstance that he knows, will contribute (if known) to manifest his innocence: for, that he has not done the act charged upon him, is certain by the supposition. Between facts that are all true, there cannot be any incompatibility, any inconsistency: if, therefore, there be a single true fact with which the fact charged upon him is inconsistent, that fact cannot but be false. Speaking, therefore, from memory, and not from invention,—by every fact he discloses he gives himself an additional chance of manifesting the falsity of the imputation cast upon him. Forbearing to put in for this advantage, he makes manifest by as plain a token as it is possible for a man to display—as plain as he could by any the most direct confession that were to confine itself to general terms,—that the situation he is in, is of that sort that does not suffer a man to put in for that advantage: the situation of him whose memory holds up to him the picture of his own guilt.

Such are the grounds of the inference, spread out at full length. But where is the individual, male or female, high or low, rich or poor, who, being of ripe years and of a sound mind, is not in the habit of drawing the same inference with equal correctness and security, though by a shorter process, and without the trouble of clothing it in words? Where is the master or mistress of a family, who seeing reason to suspect a child or servant of any forbidden act, does not, for the confirmation or removal of such suspicion, employ this species of evidence, and with more confidence than any other?—Silence is tantamount to confession, is accordingly an observation, which, whether it may happen or not to have been yet received in any collection of proverbs, is repeated and acted upon with not less confidence and certainty, with not less safety, than the most familiar of the sayings which have been thus distinguished.

Could the existence of a set of human beings have been conceived, endowed with any particle of the attribute of rationality, in whom a conceit of any kind should to such a degree have extinguished the lights of reason and common sense, as to have disposed them to shut the door of justice against this surest, safest, and most satisfactory species of evidence? Yes: two have already been indicated:—English lawyers,—and a people whose boast it is, with eyes hermetically closed, to be led by a hook put into their noses by the interested hands of English lawyers.

In the character, or at any rate the guise, of an objection or exception, one consideration has here a claim to notice. A case (it may be said) there is, in which, in the instance of a defendant under examination, the inference from muteness to delinquency will not be just;—understand, the individual act of delinquency of which he stands suspected: for it is relatively to that, and that alone, that decision pronouncing delinquency can be pertinent and just. His conduct will be just the same, if, instead of the motives furnished (as above) by appropriate delinquency, there be any others to which it can happen to bind him to silence with equal force. And, without having been guilty in respect of the individual act of delinquency imputed to him, may it not happen to a man to be bound to silence by the pressure of other equally coercive, or even more than equally coercive, motives?

Yes, certainly it may: but of what nature can be these hypothetical and just possible motives? Motives derived from delinquency; motives not derived from delinquency. Under one or other of these divisions they cannot but be comprised.

Say, in the first place, motives derived from delinquency. The delinquency from which they are derived will then be of an order inferior, equal, or superior (understand, as indicated and measured by the degree of punishment,) with reference to the act of delinquency upon the carpet. To motives derived from delinquency of an inferior order, it cannot happen to have produced this supposed equal pressure: sooner than expose himself to the superior punishment, as he would by silence, a man will make answer, though such answer be confession, and though the effect of such confession be to expose him to punishment,—such punishment being, by the supposition, inferior to that to which he would expose himself by silence.

Put the case of equal delinquency and punishment, the silence will be quite natural: put the case of superior delinquency and punishment, it will be still more so. But what follows to the prejudice of the conclusion, at least in respect of the utility of the practical conduct proposed to be grounded on it?—Absolutely nothing.

1. In the first place, a coincidence of this sort, though possible, is much too rare and too improbable to constitute a valid objection to the practical conduct to which the inference leads. If valid as an objection to conviction and execution in this case, it would be an objection at least equally valid to conviction and execution in every case: it would be an objection more than equally valid to every other species of circumstantial evidence; in a word, to every other species of evidence. False testimony—even false criminative testimony—at least, false testimony amounting to mere incorrectness, and not accompanied with criminal consciousness,—is more common than the sort of coincidence here supposed. False testimony in cases non-penal is abundantly more so: in penal causes, false testimony on the exculpative side still more so. Cases of this rare sort have now and then appeared; but as often as they have appeared, they have been cited, not for their probability, but for their extraordinariness.

A story I have often heard or read of (no matter which) may serve for illustration. An entertainment was given by some great personage to a numerous and mixed company: in the course of it a trinket was displayed, the value of which had, by I know not what operation of the principle of association, been raised in his imagination and affections above all ordinary estimation. On a sudden, an alarm was given that the precious article was missing. “Let every man of us be searched,” said one of the company. “Yes; let every man of us be searched,” said all the rest. One man alone refused: the eyes of all were instantly upon him: his dress betrayed symptoms of penury: no doubt remained about the thief. He entreated and obtained of the master of the house a moment’s audience in a private room. His pockets were turned inside out, when in one of them was found—not the lost thinket, but something eatable. He had a wife who for such or such a time had gone without food.

The story may be true or not true: but supposing it ever so true, would it afford any valid objection against the universally-prevailing law which authorizes the making search about the persons, abodes, and other receptacles, in the occupation of suspected persons, for stolen goods? It would afford a better argument in such case against such search, than the possibility of the coincidence in question can afford against the examination of a defendant.

2. Another consideration is, that—supposing the coincidence realized, the inference drawn (and that by the supposition an erroneous one,) and the decision followed by the practical measures which are the proper consequences,—still there is no harm done.* A man suffers for an offence indeed of which he is not suspected or accused, but not for an offence of which he is not guilty. The consequence is good in all its shapes:—prevention by example—prevention by incapacitation—reformation—compensation, if the case calls for it, and furnishes matter for it:—the good, in all its shapes, that is looked for in penal justice; none of the alarm that reverberates from injustice.

Remains the case of the absence of all delinquency. But if the former case is so rare, how much rarer is this latter case! To a suffering, equal or superior to that which is fastened upon a man by the given delinquency with the punishment annexed to it, he would expose himself, were he to make his conduct known:—expose himself, without being justly chargeable with any act of delinquency—without having done any of those acts in virtue of which the punishment would be just. This, indeed, is possible, but still more improbable.

Innocent himself, a man chooses to be treated as if he were guilty, rather than to expose the secrets of a mistress or a friend:* an act of martyrdom perfectly heroical, and the more heroical, the fitter a subject for a play or a romance. But the more heroical, the more rare; and therefore the less fit a subject to constitute a ground for the steps of the legislator.

The secret protected at this price, the secret of the mistress or the friend,—was there any spice of delinquency mixed with it? The muteness, heroical or otherwise, is at any rate criminal: it is the common case of an unwilling witness, unwilling to expose a friend to the punishment which his delinquency has incurred: that sort of contumacy which, wheresoever it exists, it is incumbent on the law to get the better of at any price.

Without any the least guilt on any part—on the part of the examinant himself, on the part of his mistress or his friend,—of a true and full account of his own proceeding, out of his own mouth, will the effect be to subject them or him to punishment? Of a conduct which, not being tainted with delinquency, exposes a man to suffer as for delinquency, are any examples to be found? Not impossibly: but, once more, the case is too extraordinary to afford any tolerable ground for the rejection of so instructive a species of evidence—a species by far less exceptionable, less liable to give birth to undue decision, than any other that can be named.

Appearances are against him (to borrow a phrase from the title to a play:) appearances are against him; and, by the disclosure of these appearances, he subjects himself to punishment for an offence of which he was innocent. Appearances are against him? Yes, some of the appearances: but are there none that are for him? The same examination which calls upon him to disclose the one, calls upon him to disclose the other: of those which are against him he is called upon to give an explanation: the explanation, if favourable to himself, will, by the supposition, be conformable to truth: being conformable to truth, is the conclusion to be that it will be disbelieved? That by possibility it may be so, is not to be denied; but, once more, probabilities, and not improbabilities, constitute the true ground for legislative practice.

II. Non-responsion extra-judicial: in a penal case, the act (the negative act) of him who, understanding himself to be suspected of an offence, and being interrogated concerning it, forbears to make answer to such judicial questions as are put to him in relation to it.

The tendency of this case is evidently to afford an inference of the same nature as is afforded in the case just mentioned. In degree, however, the inference will most commonly be weaker, and is capable of existing in all degrees down to 0. The strength of it depends principally upon two circumstances: the strength of the appearances (understand, the strength they may naturally be supposed to possess, in the point of view in which they present themselves to the party interrogated)—the strength of the appearances, and the quality of the interrogator. Suppose him a person of ripe years, armed by the law with the authority of justice, authorized (as in offences of a certain magnitude persons in general commonly are, under every system of law) to take immediate measures for rendering the supposed delinquent forthcoming for the purposes of justice.† —authorized to take such measures, and to appearance having it in contemplation so to do;—in such case, silence instead of answer to a question put to the party by such a person, may afford an inference little (if at all) weaker than that which would be afforded by the like deportment in case of judicial interrogation before a magistrate. Suppose (on the other hand) a question put in relation to the subject, at a time distant from that in which the cause of suspicion has first manifested itself,—put at a time when no fresh incident leads to it,—put, therefore, without reflection, or in sport, by a child, from whom no such interposition can be apprehended, and to whose opinion no attention can be looked upon as due: in a case like this, the strength of the inference may vanish altogether.

In the three remaining cases (that of the plaintiff in a penal cause, that of the plaintiff and that of the defendant in a non-penal cause)—from what has been said it will be easy to deduce the nature and strength of the inference afforded by this same modification of circumstantial evidence. In all these cases, the evidentiary fact being non-responsion, the fact evidenced will be want of right,—unfoundedness of the pretensions advanced by them in their respective situations. In all these cases, the relation—the connexion—between fact and fact, on which the presumption grounds itself, is the same: the cases in which the presumption is liable to fail, are also much the same: but the injury liable to result to the individual from a decision to his prejudice, in the case where such decision, in respect of its being grounded on such presumption, is undue, being by possibility not so great,—the inference will be drawn with so much the greater freedom in any of these three latter cases then in the case first mentioned.

III. False responsion. The inference is of the same nature; and in point of strength, whenever in this respect there is any difference between this case and that of non-responsion, it is in this case that the inference (the probability of guilt will be the strongest.

In the case of judicial interrogation, the particular inference applying to the particular case will be strengthened by the general unfavourable inference, the shade thrown upon a man’s character by the additional circumstance of falsehood: supposing it always to have acquired the tinge of mendacity by the infusion of criminal consciousness.

In the case of non-judicial interrogation, whatever counter-inference may be deduced from the topic of incompetency on the part of the interrogator, will, by the additament here in question, generally speaking, be repelled.—A question, an idle question, put to me by a child? A question from such a quarter,—could I have conceived that it would be thought to have any claim to notice? In justification of simple silence, the defence might be pertinent, and even convincing: to false responsion, the application of it could scarce extend. Of the claim it had to notice, you yourself have borne sufficient testimony: so far from grudging the trouble of a true answer, you bestowed upon it the greater trouble of a lie.

False answers are, naturally enough, interspersed more or less with self-contradictory ones. The case is no otherwise varied by the intermixture than by this, viz. that in the case of self-contradiction the falsehood is more palpable and incontestable. Of any two contradictory propositions, the one or the other will of necessity be false. Take away this internal and irrefragable proof, the detection of the falsehood must rest upon the basis—the more or less precarious basis, of other evidence.

IV. Evasive responsion, is responsion in words and appearances, non-responsion in effect: it may be termed virtual non-responsion. Under this head may be comprised all answers, in so far as they are irrelevant to the interrogatories: all answers in which nothing is contained that has in any respect the effect of a compliance with the requisition (or say command) which every interrogatory, as such, involves in its very nature.*

Responsion is either relevant or irrelevant. If irrelevant, and after admonition persisted in, it is evasive: if evasive, it is tantamount to silence; or rather, in the case of evasion (if there be any difference) the inference is stronger. Silence may be ascribed to stupidity: evasion is the work of art—the natural resource of self-condemning consciousness.

But evasion,—to what circumstance, when successful, does it owe its capacity of having the effect of silence; that is, the desired effect without the undesired? To indistinctness: everything is referable to this cause.

In some instances it will now and then happen that indistinctness, designed or undesigned, shall have the effect of false statement, affirmative or negative. In that case, upon a first view, and for the advantage of his design, he is taken to have said something;—while, upon a second view, and to the disadvantage of his design, he is not found to have said anything: as against punishment or other burdensome infliction, he is secure; when, perhaps, by means of some false and fallacious conceptions conveyed by these same words to the mind of the judge, he has produced the same desired effect that would not have been produced if any assertion had been hazarded by him in express words.

But the most common deceptitious effect and use of indistinct language (understand, to the deceitful deponent,) is to operate as a succedaneum to silence: to prevent the judge, or whoever on this occasion stands in the situation of the judge, from observing, among the several points to which a man could not have spoken truly without speaking in the way of confession, what there may be, to which he has forborne to speak.

Evasion is a sort of middle course between non-responsion, false exculpative responsion, and confessorial responsion. Compelled to say something, on pain of the consequence which cannot fail to attach upon his virtual refusal to say anything, a man keeps saying what amounts to nothing; partly in the hope that the imposition may pass undetected, and the insignificant discourse be accepted as if it were significant; partly to give himself time to consider into which of the two other paths—confessorial truth or exculpative falsehood—he shall betake himself.

The effect of indistinct language, in the character of an advantageous substitute to false statement or silence, depends greatly upon the magnitude of the mass—the voluminousness of it, in the case of written language. Take a single short proposition,—be the language of it ever so indistinct, it will commonly be seen to be so: the insignificance of it, and (in case of mala fides) the evasiveness, will be seen through. But, in psychological as in physical objects, as the mass increases, the transparency diminishes: and since, along with the indistinctness of the object, the exertion of the mind in its endeavour to see through it increases, it will not unfrequently happen that the sinister purpose of the manufacturer of the chaos shall be effected, by the mere lassitude of the eye which has the misfortune to stand engaged to look into it.

Order—method—is among the instruments which intellectual vigour has to construct for the assistance of intellectual weakness, and which, when made, intellectual weakness assists itself by, in its endeavours to surmount the difficulties it has to contend with. But as, on one hand, the labour and difficulty of producing order, so, on the other hand, the demand for it, increases with the magnitude of the mass—with the multitude of the elementary particles which compose it. Order—meaning good order—order the best adapted to the purpose—consists in the selecting, out of the whole number of changes capable of being rung upon the number of elementary parts in question, that one of the whole number that will place the aggregate mass in the most intelligible point of view. The number of changes capable of being rung upon an assemblage of elementary parts, increases with the number of those parts:—increases with that rapidity of increase which is so familiarly and precisely known to mathematicians, and which is matter of so much astonishment to persons altogether unconversant with the first rudiments of that science. But, with the number of changes capable of being rung upon the elementary parts of the mass in question, increases the chance in favour of disorder and confusion,—the difficulty of producing order,—the difficulty of detecting the want of it,—the difficulty of pointing out the remedy for the want of it, for the purpose of insisting on the application of the remedy,—the facility of producing that sort and degree of disorder which shall weary out the energies of the inspecting eye, and force it to withdraw from the subject altogether, to save itself from the labour (perhaps the fruitless labour) of persevering in the endeavour to discover what has and what has not been said and done.

It is in written language alone that the art of evasion finds a favourable field for its operations. Let the deposition be delivered vivâ voce, any attempt of this sort is soon rendered abortive. Though accepted in such abundant instances in the ready-written form, in masses of any magnitude,—testimony is never accepted in the spontaneous mode, in the form of vivâ voce testimony, in a mass of any considerable magnitude. Delivered in the vivâ voce form, and thence in the presence of the judge; if indistinct, and by law not capable of being subjected to interrogation (for to this pitch of opposition to common sense has legal usage soared,)—no better purpose—none more favourable to the design of the malâ fide deponent—will be answered by it, than would have been answered by silence. But, if subject to interrogation, by interrogation it would immediately be clarified, and reduced either to false statement or to verbal silence. Delivered in the shape of written language, a mass of indistinct matter runs on to any number of pages or volumes: delivered vivâ voce, in the presence of a person having power to interpose at any time by interrogation, it is stopped at the first indistinct word.

CHAPTER VI.

OF SPONTANEOUS* SELF-INCULPATIVE TESTIMONY, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUENCY.

§ 1.

Confession, and confessorial evidence, what—distinction between them.

When the supposed delinquent is really guilty—the offence the subject of discourse between himself and another person—and he himself the speaker,—in the natural course of things, the composition of the discourse will be a mixture of falsehood and truth: fear of detection, and the view of the criminative force with which (in so far as followed by detection) falsehood never fails to act, being sufficient to prevent it from being willingly recurred to in any other case than where, to repel suspicion, it seems altogether indispensable. But, though in the discourse itself these elements will generally be found in a state of combination, yet, for the purpose of explanation, it will be neither useless nor impracticable, to separate them in idea, and examine them apart.

Moreover, on the occasion of any such discourse,—howsoever it should have happened that the discourse was begun by the supposed delinquent, whose conduct, by the supposition, is the subject of it,—yet it will seldom happen but that, in the view taken of it by the hearer or hearers (say, for simplicity’s sake, the hearer,) it will in this or that part appear obscure, ambiguous, or (if not incorrect) at any rate more or less imperfect; in every one of which cases,—if, on the part of the hearer, discourse as well as thought is free,—interrogation on that part, responsion on the other, will, in some shape or other, take place of course.

In the ordinary colloquial intercourse between man and man, it is, however, not less natural for the discourse to take its commencement without interrogation than by interrogation: having been thus begun, it may happen to it to continue upon that same footing for any length of time: and, so long as upon that same footing it does continue, it will be conducive to distinctness of conception to consider in what shape the sort of evidence in question—self-disserving and self-criminative verbal evidence—is capable of presenting itself by itself, and without any admixture of that sort of evidence in the extraction of which interrogation has been the instrument employed.

When, on the part of a supposed delinquent, discourse of the self-regarding kind, and (with relation to the offence in question) of a self-disserving, and thence (it being a case of supposed delinquency) of a self-criminative or self-inculpative tendency, is considered as sufficient of itself to justify a judgment of conviction, declaring him convicted of that offence,—such discourse is, when taken in the aggregate, styled in judicial practice a confession.

In regard to the two modifications of evidence distinguished from each other by the denominations of direct and circumstantial, it has already been remarked how intimate the connexion is—how faint, and oftentimes scarce determinative, the boundary line which separates them.

A confession, if so it really be that it is particular enough to form a sufficient ground for conviction, cannot fail to contain more or less of that sort of evidence which, requiring no ulterior inference to be drawn from it, may with propriety be considered as being of the nature of direct evidence. But, moreover, what can scarcely happen is, that it should not contain any admixture of circumstantial evidence; viz. of propositions, each of which (coming as they do from the supposed delinquent,) supposing it to have stood by itself, might have operated with more or less probative force towards conviction, by means of some inference for which it would afford a ground,—by means of some such inference, and not otherwise.

When it amounts to a confession, the mass of discourse in question is full and satisfactory, as above. But even when, so far as it goes, the tendency of it is disserving, and, in respect of the occasion, self-criminative; yet, when delivered in loose and casual fragments, it may happen to it to possess this tendency in any the slightest degree imaginable; operating with any degree of probative force, from the highest to the lowest.

In the case where the whole mass, being complete, would have amounted to a confession; if any fragment is broken off, the remaining force may be styled a mass or article of confessorial evidence.*

This, it will be seen presently, is far from being the only species of imperfect self-disserving, and thereby self-criminative or self-inculpative, evidence, exemplified in practice. It is, however, one species of self-disserving evidence: and forasmuch as a mass of simply confessorial evidence (i. e. a mass of confessorial evidence not amounting to a confession) does not of itself form a sufficient ground for conviction, while a mass of confessorial evidence amounting to a confession does of itself form a sufficient ground for conviction,—it would be of no small utility in practice, if a criterion was established, whereby, without danger of dispute or misconception, it might upon every occasion be pronounced of a mass of self-disserving and self-inculpative evidence, whether it was a complete confession, or nothing more than a mass more or less considerable of confessorial evidence.

Let this criterion be constituted by the application of the process of interrogation: interrogation, oral or epistolary (as shall be determined,) but at any rate judicially performed: insomuch that,—be the mass of confessorial evidence, upon the face of it, ever so correct as well as complete,—yet, until and unless, for the assurance of its correctness as well as completeness, it has had that security which it is not in the power of anything but the process of interrogation to afford, let it not be considered as amounting in any case to a confession, for any such practical purpose as that of conviction, as above mentioned.

Short of a confession—although (so far as it goes) confessorial—it may of course be, after and notwithstanding interrogation; but without interrogation let it never be considered as amounting to a confession, in what degree soever, upon the face of it, ample and instructive.

Another condition which it might, perhaps, be proper to add to the description of a confession, is this: viz. that, to amount to a confession, although extracted by judicial interrogation, it ought to be such as would have been sufficient to warrant a conviction had it been delivered by an extraneous witness.

Self-regarding evidence, as has been observed in a former chapter, is the only species of direct testimonial evidence which, with reference to a complex act of the description in question (a criminal act,) can be complete, without comprehending any article whatever of circumstantial evidence—without leaving any fact to be made out by inference. When it is thus complete—mention being made in it of every fact (psychological as well as physical) which is necessary to complete the description of the offence (this deponent, the person whose testimony it is, being the defendant, the person who stands accused or suspected of that offence;) such body of evidence may be termed plenary confession. If there be any one such fact, of which express mention is not contained in the mass of evidence so denominated, the confession, whether satisfactory or not, is, at any rate, short of plenary. In practice it may very well happen that in this or that instance it may, without being strictly speaking plenary, be considered as being equivalent to plenary, and as satisfactory as if it were so. As, for instance, if Reus, being accused of the murder of Occisus, on being interrogated, says, “Yes; it was indeed I who struck the fatal blow.” In this example, nothing more is necessarily deposed to than the physical act: but, from the confession thus made of the physical act, the existence of the correspondent intention (a psychological fact) will naturally enough be inferred of course.*

There is no imaginable lot of testimonial evidence which may not (as hath already been observed) operate in the character of direct as well as in that of circumstantial evidence. As this is the case with extraneous, so is it, and more particularly, with self-regarding evidence. Direct with reference to one fact (the fact asserted by it,) it may be circumstantial with regard to another fact, a fact inferred from the assertion. But its being capable of operating in the character of direct evidence, does not lessen the force of the demand which calls upon us to consider it in the character of circumstantial evidence. There is, therefore, no possible modification of confessorial evidence, that will not require to be considered here under the head of circumstantial evidence. In truth, it is only in its character of confessorial evidence—in respect of its capacity of affording inferences, meant or not meant by the party to be drawn from it—that it admits so great a variety of modifications. Consider it purely and simply in the character of direct evidence—consider the asertion as evidentiary of the fact asserted by it, and nothing more,—all these distinctions vanish. By the assertion in question, the fact asserted is proved, or not proved,—that fact, and that fact alone,—according as the testimony is regarded as true or false.

In considering whether a given lot of self-regarding evidence belongs or not to the head of confessorial evidence, regard must be had, not to the conception entertained or not by the confessionalist himself, in regard to the consequences of it (whether to himself or others,) but merely to the use eventually made of it when exhibited in the course of the cause. The application of which it is regarded as susceptible being considered, the idea of reluctance on the part of the confessionalist will naturally enough be presented by the term confession, and its several conjugates. But if reluctance were looked upon as a necessary component circumstance, the extent of the idea thus annexed to the term would be found to fall far short of the extent that will be found necessary to be given to it on many of the occasions on which the demand for it presents itself. These occasions will be distinctly brought to view, when we come to speak of the different modifications of confessorial evidence. The case where the utterance of it is attended with reluctance, is but one out of many distinguishable modifications.

§ 2.

Of spontaneous confessorial evidence extra-judicially delivered.

Of this species of evidence it being one characteristic property that the tendency of it is prejudicial, and that in any degree up to the highest, to him to whom it owes its birth; and another, that it comes out spontaneously, and without any application of the instrument, with the help of which, evidence of the same tendency is capable of being extracted from the unwilling mind by the hand of power; two doubts naturally present themselves as seeking for satisfaction: viz. to what causes it is capable of owing its birth? and to what others its introduction to the theatre of justice?

To the first of these questions an answer may be conveyed by so many specific denominations, each of them having the effect of indicating the cause (the psychological cause) to which the species so denominated owes its birth. To the other, an answer will be afforded by an indication given in each instance of the causes of transpiration; incidents, by the force of which it has been found in practice that evidence of the species in question has made its way to the theatre of justice.

1. First species of self-inculpative or self-criminative evidence, conspiratorial evidence. Discourse held amongst delinquents as to the time, place, means, and other circumstances, of the offence; whether already committed, or as yet but meditated.

Examples of the causes of transpiration:—1. Over-hearing; 2. Loss of papers by accident, by interception, by seizure; 3. Disclosure, with or without treachery, on the part of one or more of the co-delinquents.

2. Simply confidential. A disclosure made (whether from any interested view, or merely in expectation of sympathy) by one or more of the co-delinquents, before or after the commission of the offence, to an individual who either was or was expected to be a partaker in it.

Transpiration causes, the same in this second case as in the first.

3. Jactitantial—directly or purposely jactitantial. The supposed offender, taking a pride in the offence, or in the reputation of having committed it, makes an intentional and unreserved statement of it, in a manner more or less circumstantiated, to one on whose part he expects on that account esteem or sympathy.*

Transpiration causes still the same.

4. Jactitantial through unadvisedness. In the view of conciliating esteem or sympathy, a man relates some act of his, in itself not criminal or otherwise obnoxious, but which (in one way or other) becomes evidentiary of the principal act—the act of delinquency in question.

Transpiration causes, still the same.

5. Simply unadvised, or unadvisedly colloquial. In the way of ordinary conversation, without any design of boasting, a man speaks either of some act of his own, or of any other incident, any other matter of fact, which—in virtue of some connexion, that he is not aware of, with the principal fact in question, the fact of his delinquency—operates in the character of an evidentiary fact in relation to it: for example, his having been in such a place at such a time.

Transpiration causes, still the same, except that there is no place for treachery, no confidence having been placed.

6. Unadvisedly exculpative. Finding or apprehending himself exposed to the imputation of the act of delinquency in question,—the supposed delinquent, in the view of wiping off the imputation, or screening himself from it, mentions in discourse some matter of fact, which, without his being aware of such its tendency, contributes to the contrary effect, as above.

Transpiration causes, as per last; no room for treachery.

7. Penitential, or penitentially confessorial. Though, by the supposition, the occasion on which it is delivered is here extra-judicial, it may happen to it to have been delivered in contemplation of its being judicially produced in evidence. If so,—here, as in the case of a confession or confessorial evidence judicially delivered, transpiration is out of the question. If so it were that the communication was made in confidence, it then, in respect of transpiration causes, coincides with simply confidential self-disserving evidence, as above. But, in this case, as in that other, it remains for inquiry, by what causes a course so repugnant to the universally-prevalent principle of self-preservation was produced.

8. Superior-benefit-seeking. By the pursuit of some benefit, it may happen to a man to make known some fact, which—without his being aware of it, or even though he be aware—may happen to contribute, in the character of an evidentiary fact, towards his being convicted of the offence in question. Probability and nearness, as well as magnitude, considered on both sides, it may happen that the value of the benefit shall be in his eyes so great, as to more than compensate for the risk of the whole mass of evil, punishment included, which he beholds attached to the offence.

The infirmative considerations applicable to the probative force of criminative circumstantial evidence of this class, seem capable of being designated in general terms by three words: viz. 1. Misinterpretation; 2. Incompleteness; 3. Mendacity.

1. Misinterpretation has in this case the effect that incorrectness on the part of the evidence itself has, if not misinterpreted: inasmuch as, though the evidence itself be not incorrect, yet the conception produced by it (either in the mind of the judge, or in the mind of the extra-judicially percipient witness, the ear-witness of the discourse, and through him in the mind of the judge) is incorrect and deceptitious; causing the supposed delinquent to be believed to have committed an act of delinquency which in truth he did not commit.

2. As to incompleteness; it depends upon the manner in which it is incomplete, whether the effect of it shall, to the prejudice of the supposed delinquent, be the same as that of incorrectness, or whether it shall amount to nothing more than the rendering the probative, the criminative, force of it, less considerable than if it had been nearer to the being complete.

3. By mendacity (here as elsewhere) is to be understood wilful and purposed incorrectness; where the evidence thus delivered, the discourse thus used, is incorrect, being rendered so wilfully, and on purpose.

1. Misinterpretation. By misinterpretation on the part of the judge, the deceptitious effect produced by circumstantial evidence of this description is susceptible of modifications, analogous to that already mentioned as producible by misinterpretation of preparations and attempts, directed in appearance, but (as in the case supposed it happened) not in reality, to the act of delinquency eventually committed. Instead of the act which, by means of the misinterpretation, is supposed and concluded to have been committed—under the supposition of its having been virtually acknowledged to have been committed,—the act really performed may have been—1. Blameless, though seeking secrecy; 2. Blameless, and not so much as seeking secrecy; 3. Imaginary: as, if the intimation given of it, whether directly or in the way of allusion or insinuation, was meant in the way only of sport or jest; or, if the act committed by the supposed delinquent, and meant by him on the occasion in question to be spoken of, was an act which, though culpable, was culpable in a different manner, or in less a degree, than the act which, from the consideration of such his discourse, is inferred from it, and believed to have been committed.

Many cases may be put, in which that which really is not a confession might be taken for and acted upon as such.

A paper is found, in the defendant’s handwriting, charging him, the defendant, with a crime. Though written by the defendant’s hand, it may have been the discourse of another person, and all of it false: simple curiosity, or even the intention of refuting it, in a private way, or with the assistance of justice, might have been his motive for copying it.

The poet Jean Baptiste Rousseau wrote a virulent libel, aspersing a multitude of respectable characters, Saurin’s among the rest, and circulated it in manuscript. Saurin, having borrowed one of these manuscripts, copied it with his own hand, for the purpose of answering it, or instituting a prosecution on the ground of it. Rousseau, hearing of this, or suspecting it, got possession of Saurin’s copy, and on the ground of it, with the help of some false evidence for the explanation of it, instituted a prosecution against Saurin, charging him with being the author of it. The truth was discovered by the vivâ voce examination of the false witnesses: and this, too, without the benefit of that sort of examination which, under the name of cross-examination, they would have undergone had it been in England.*

The confession may have been given in the way of jest: the whole of it, or any part, devoid of truth: neither, in fact, conformable to the truth of things, nor so much as meant to be taken for such.

A case of this description happened, if I have been rightly informed, not many years ago in England. From I know not what circumstances, a person, whom I will call Juraturus, was expected to be put upon the jury, in a cause of public expectation, in which the affections of political parties took an interest. A letter was written to him by Jocosus, conjuring him to see the defendant convicted, right or wrong. For this letter Jocosus was prosecuted, as for embracing (the name given by the English law to the act of extra-judicial solicitation, where the sort of ephemeral judge, called a juryman, is the subject of it.) The matter being somehow explained, Jocosus escaped conviction, or at least punishment administered under that name; but the costs of prosecution were in effect a punishment, and a very severe one. Had the testimony of the defendant been receivable in law, and known to be so, the prosecution would hardly have been instituted.

2. Incompleteness. It is evident that an extra-judicial confession may be incomplete to any imaginable degree. For—1. In the shape in which the discourse flows from the lips of the confessionalist, it may be loose and imperfect up to every conceivable degree of imperfection. 2. The interlocutor—who may be sensible, or to the highest conceivable degree insensible, of such its deficiency—may accordingly let it pass in such its imperfect state, without applying himself in any way to render it more complete. 3. Though he possessed, in ever so high a degree, the requisite inclination; the power, the effective power, of commanding and producing the requisite explanations, may on his part be deficient, in any conceivable degree.

3. The case of mendacity requires more explanation. To a first view, nothing can be more paradoxical than the case of a man’s having recourse to falsehood for the purpose of subjecting himself, perhaps to the punishment, at least to the disrepute, attached to a supposed act of delinquency which in fact he has not committed. In the relation between the sexes may be found the source of the most natural exemplifications of this as of so many other eccentric flights. The female umarried,—punishment as for seduction hazarded, the imputation invited and submitted to, for the purpose of keeping off rivals, and reconciling parents to the alliance. The female married,—the like imputation, even though unmerited, invited, with a view to marriage, through divorce. Even without view either to marriage, or to possession without marriage,—vanity, without the aid of any other motive, has been known (the force of the moral sanction being in these cases divided against itself) to afford an interest strong enough to engage a man to sink himself in the good opinion of one part of mankind, under the notion of raising himself in that of another.*

False confessions, from the same motive, are equally within the range of possibility, in regard to all acts regarded in opposite points of view by persons of different descriptions. I insulted such or such a man: I wrote such or such a party-pamphlet, regarded by the ruling party as a libel, by mine as a meritorious exertion in the cause of truth: I wrote such or such a religious tract, defending opinions regarded as heretical by the established church, regarded as orthodox by my sect.

In many cases, probably in most, the infirmative facts above brought to view will be seen to have no place: the import of the discourse, and its applicability to the purpose for which it is adduced, will be out of dispute. Though not complete (for it is seldom that a lot of extra-judicial evidence will be endowed with that completeness with which it is the object of judicial examination to endow it,) it will, as far as it goes, be thus far complete, that it will be sufficiently manifest that no addition which it could have received could have been of a nature to destroy, or materially to change, the inference. The act, to the imputation of which the confessionalist was exposing himself by this his discourse, was really his act—really done by him; nor was he, on the occasion of holding such discourse, acting in prosecution of any such eccentric and perilous a design as that of subjecting himself to an imputation known by himself not to be merited.

A distinction requires here to be noted, between the case where the evidence may be said to be designedly furnished, and that in which it may be said to be undesignedly furnished, having been obtained, as it were, surreptitiously, by the party by whom it is produced or offered to be produced, without the consent of the party whose confession is contained in it.

In the former case, it partakes, in a great measure, of the nature of judicial confessorial evidence: the person to whom it is delivered, though not a magistrate, yet, by the relation he bears (casual and momentary as it is,) may be considered as standing, in many respects, in the situation of a magistrate. The proprietor of stolen goods, having, by a train of indicative evidence, been led to the discovery of the thief, makes up to him, and charges him with the theft: the delinquent, through remorse, confusion of mind, or hope of favour, confesses the offence in all its circumstances, in a degree more or less particular. To extend the illustration, substitute for the case of theft the case of any other offence, of that class which supposes the existence of an individual exposed to special injury; and to the case of the proprietor of the stolen goods substitute that of the individual so injured.

The reason and use of the distinction is, that when, as here, the confessorial evidence is furnished ex propasito confitentis, the same causes that are capable of giving birth to false confession, when judicially exhibited, are capable of producing the same effect in the case where it is furnished extra-judicially, as here:—confusion of mind,—hope of commuting a severer punishment for a less severe one,—hope of obtaining mercy,—despair of acquittal, produced by prospect of false evidence.

The opposite case, the case where the confession was obtained imprudentiâ confitentis, is the case which, on the former occasions referred to, was principally in view. The party, the confessionalist, has made a memorandum in relation to the fact, for his own use; this falls into the hands of the adverse party, who thereupon produces or offers it in evidence. In terms more or less particular, either direct or more or less indirect, the confessionalist has mentioned the fact in a letter to an accomplice or a friend: the letter falls into the hands of the adverse party, who produces it, or offers it, in evidence. The confessionalist has been overheard to mention the matter in conversation with an accomplice, a friend, or even (for no species or degree of imprudence is altogether without example) an utter stranger: through the medium of the extra-judicially audient witness, it comes round to the adverse party, who (with or without his good will) engages him to come forward with the information, in the character of a judicially-deposing witness.

From the differences that exist in respect of the mode in which the evidence was obtained in the two cases, result several other differences. When of a nature approaching to judicial, the extra-judicial confession (having conviction, or, at least, full information, for its object, either on the part of him who delivers it, or on the part of him to whom it is delivered) will naturally be more or less effectually shaped and adapted to that purpose. When obtained, as above explained, in a manner by surprise, neither the confessionalist, nor (in the case of hearsay evidence) his interlocutor or auditor, has any such object; nor has the interlocutor or auditor, generally speaking, any means of shaping the evidence to that object. The shape in which it presents itself will naturally be that of some broken scrap, variable ad infinitum in respect of form, and quantity of information.

In the case where, as above, it is furnished by a man as it were with a halter about his neck, the language will necessarily be direct and explicit; and in that respect, whatsoever it may be in point of precision (for precision will depend as much upon the party receiving the information as upon the party furnishing it,) nearly upon a par with that which it assumes when extracted by an official hand. In the case where it is furnished without apprehension of the use eventually made of it, it may indeed happen to the language of it to be equally direct and explicit (as is apt to be the case with libels;) but it is equally capable of existing in a form to any degree mysterious and indirect. It may consist of nothing but mere allusion; and, in any case, to find out a key to it, and apply it to the proof of the fact endeavoured to be proved from it, may be the task of argumentation and conjecture.

§ 3.

Of spontaneous confessorial evidence, judicially delivered.

For the advantage of viewing objects one at a time, the species of criminative evidence in question has hitherto been considered as being delivered as well without the intervention of interrogation, as without the intervention of the authority of a judge, present at the time. Of the intervention of these two circumstances, the consequences will be seen to be material.

If the self-criminative discourse be conceived to be held in the presence of the judge, it is not natural that (adequate power not being wanting) the use of so efficient a security for correctness as well as completeness should be foregone. But that which, in respect of its manifest mischievousness and absurdity, will be apt to appear most unnatural, is, under the influence of the sinister interest which gave birth to the technical system of procedure, but too frequently realized: for example, under English law, in the case of all those modifications of delinquency in relation to which the evidence is delivered in no other shape than that of affidavit evidence.

The scene of intercourse being now removed from the closet to the theatre of justice,—one consequence is, that, of the eight modifications of self-disserving evidence above brought to view, five stand excluded, as being incapable of finding entrance into a place so defended. These are—1. conspiratorial; 2. simply confidential; 3. purposely jactitantial; 4. unadvisedly jactitantial; and, 5. simply and unadvisedly collognial. Superior-benefit-seeking, a modification under all circumstances rare and eccentric, is, by the authority of a present (though mute and inactive) judge, rendered still more unlikely to be hazardeo, still more so by the presence of an interrogating judge.

Remain, as the only two modifications of self-disserving evidence natural to the spot now in question,—1. unadvisedly self-exculpatire evidence; and, 2. penitential or penitentially confessorial evidence.

To ground conviction, confession (it has been said) ought to be perfectly free, not produced either by hope or fear. Such is the language we frequently meet with in English law books. Reason is here obscured by a covering of absurdity. Accused or suspected of a crime, guilty or innocent,—what but hope or fear should induce a man to speak? Guilty, in particular, what but hope or fear should induce a man to confess? Confession without hope or fear, is an action without a motive, an effect without a cause. It is more: it is an action without an inciting motive, overcoming a force (and that a mighty one) of restraining motives. It is as if, on a level billiard-table, a ball should run into one of the pockets, not merely without being struck with the mace or cue, but in spite of the impulse of the instrument striking it in a direction exactly opposite.

What there is of reason in the rule amounts to this:—A judge, in examining an accused or suspected person, should be upon his guard against the sinister inducements, to the action of which a man in such a situation is exposed.

The causes which may be capable of giving birth to evidence of the description in question, when it is not true, come now to be enumerated.

I. Causes capable of giving birth to untrue confessorial evidence, even when plenary.

1. Guilty of a greater crime (i. e. a crime more severely punished than the crime now charged,) a man makes a confession of the crime now charged, in order to avoid the severer punishment: or, being charged with two crimes, he confesses the less, to avoid being punished as for the greater: and so in regard to facts subjecting a man to non-penal damage, or otherwise to an obligation of an unpleasant cast.

2. Not guilty of the crime charged, nor, consequently, being justly subjectable to the punishment annexed to it,—but exposed, or conceiving himself exposed, to undergo some severer suffering (whether on the score of criminality or any other) at the hands of the prosecutor, or some other man in power, to whom it would be acceptable that he should suffer as for the offence in question,—he makes confession of it accordingly, in the hope of thereby escaping such severer suffering.

Various is the description of the person by whose power (i. e. by the hopes and fears that point to it) a man may be drawn into a false confession. It will depend in a considerable degree upon the nature of the offence: an ordinary offence, or a political offence. It may, accordingly, be a private individual; it may be, in a monarchy, the monarch, or one or more of his ministers; in a commonwealth, some officer or some individual invested by law or influence with appropriate power; it may be (though without atrocious abuse of judicial power it cannot be) even the judge.

3. If, in the case above supposed—hoping, as above, to mollify the enmity of his too potent adversary—he regards the stream of the evidence as likely to run against him, and with a force sufficient for conviction (though this be what, by the supposition, cannot take place without falsehood somewhere;) an adequate motive—a cause adequate to the production of the supposed effect, viz. that of a false confession—will in this way too be exemplified.

4. Lastly, the same effect is capable of being produced by mere confusion of mind; the state of mind producible in a man by terror—by the contemplation of his impending fate.

The case of false confession is a case which, in the present state of jurisprudence among civilized nations (including a century or so under the notion of present time,) has seldom been exemplified: so at least one wishes and hopes to be able to believe, for the honour of governments and of human nature. The only instance in which it has been in any degree frequent, even for some centuries past—and in this instance it has been but too frequent—is that of a case in which the fact was not only false, but impossible, I speak of the case of witchcraft. Turn which way we will—to France, to England, to North America—we shall find wretched women not only convicted, but confessing themselves guilty, of that imaginary crime. So at least say the accounts that have been transmitted to us. In these deplorable instances, in what shape has the confession been conceived? To produce a frantic cry of guilty—to produce the mark of a trembling hand to a paper full of calumnious lies, contents known or unknown—these are effects to the production of which confusion of mind may be fully adequate, in the instance of the weakest and most ignorant certainly not less than in that of the strongest and best-informed minds. But to produce, and produce extempore, a circumstantial and consistent account of intercourses and conversations with an imaginary being,—this would be scarce possible even to the strongest; and, if possible, where should be the inducement, when the consequence was the being hanged or burnt?

To guard against false confessions, therefore, the two following rules ought to be observed:—

1. One is, that, to operate in the character of direct evidence, confession cannot be too particular. In respect of all material circumstances, it should be as particular, as, by dint of interrogation, it can be made to be. Why so? Because (supposing it false) the more particular it is, the more distinguishable facts it will exhibit, the truth of which (supposing them false) will be liable to be disproved by their incompatibility with any facts, the truth of which may have come to be established by other evidence. The greater the particularity required on the part of the confession, the greater is the care taken of the confessionalist,—the greater the care taken to guard him against undue conviction, brought on upon him by his own imbecility and imprudence.

2. The other rule is, that, in respect of all material facts (especially the act which constitutes the physical part of the offence,) it ought to comprehend a particular designation in respect of the circumstances of time and place. For what reason? For the reason already mentioned: to the end that, in the event of its proving false (a case not impossible, though in a high degree rare and improbable,) facts may be found by which it may be proved to be so. “I killed such a man” (says the confessionalist, mentioning him,) “on such a day, at such a place.” “Impossible” (says the judge, speaking from other evidence:) “on that day neither you nor the deceased were at that place.”

But time and place are both infinitely divisible. To what degree of minuteness shall the division be endeavoured to be carried for this purpose? A particular answer, that shall suit all cases, cannot be given. The end in view, as above stated, must be considered, and compared with the particular circumstances of the case, in regard to either species of extension, ere the degree of particularity proper to be aimed at by the interrogatories can be marked out. Under the head of time, the English law, in the instrument of accusation, admits of no other latitude than what is included in the compass of a day. The nature of things did not, in this instance, render uniformity impossible: the parts into which time is divided are uniform and determinate. Place—relative space—is not equally obsequious: the house? yes; if the supposed scene of the supposed transaction be a house: the street? yes; if the scene were in a street: but a field, a road, a common, a forest, a lake, a sea, the occan; any of these may have been the scene.

The question therefore still recurs upon us, and at the same time the difficulty of finding a general answer for it recurs undiminished. Supposing the confession—the narration—false,—will the intimation which it has been made to include of time and place be sufficiently particular to enable the judge, supposing it to be false, to extract sufficient proof of the falsity of it from other evidence?

Between the degree of particularity to be looked for in the article of place, and the degree of particularity to be looked for in the article of time, there will be a mutual dependence. Supposing it clear from other evidence, that, on a given day, the confessionalist and the deceased were upwards of two days’ journey distant from one another,—the specification of the day on which, in the false confession, the murder is stated to have been committed, will be sufficient to prove the falsity of the confession—to prove the non-delinquency of the confessionalist. But suppose the distance no more than two hours’ journey,—the specification of the day will, it is evident, not be sufficient for the same purpose: he should be called upon to fix the very hour: the hour becomes as material in this second case, as the day was on the first.

In the wording of the instrument of accusation, particularity in respect of both species of extension is insisted upon, and evidently for the reasons above given, by the English law. But, between the case of an indictment (a statement of the offence, as drawn up by an accuser,) and a confession, whereby the defendant himself becomes as it were his own accuser, there is in this respect a great difference. In the case of the instrument of accusation, compliance with this requisition, however desirable, may, in respect of this or that degree of particularity, be impossible. Why? Because, antecedently to the exhibition of the whole mass of obtainable evidence (though ultimately that evidence should prove ever so satisfactory,) it is but natural that an accuser should be in the dark; while (supposing the charge true, and the defendant willing to confess the fact,) that same degree of particularity which it was altogether out of the power of the accuser to give to the relation, may be exhibited in the confession of the defendant without any difficulty. For from whom can so precise an account of a man’s acts be expected as from the man himself (especially acts of such moment to himself,) so he be but disposed to give it?*

CHAPTER VII.

OF CONFESSORIAL AND OTHERWISE SELF-DISSERVING EVIDENCE, EXTRACTED BY INTERROGATION.

§ 1.

Of interrogation in general, as a means of extracting self-disserving evidence.

Interrogation has already been mentioned* as the most efficient, and (in case of doubt) the indispensable, instrument for the extraction of truth—complete truth—in favour of whichsoever side of the suit it militates.

On both sides, its property is to clear up all doubts—all doubts produced or left by other evidence—doubts which without its aid can never be cleared up. Possessing this property, it is not less favourable to innocence than adverse to delinquency. All suspected persons who are not guilty, court it; none but the guilty shrink from it.

Antecedently to the application of this test, the mind of the judge remaining in doubt as between innocence and delinquency (viz. in which of the two opposite states the mind of the defendant shall be considered as placed,) the process is directed indistinctly to the production of the one or the other of two opposite results:—in the case of non-delinquency, self-exculpative testimony; in the case of delinquency, confessorial testimony, ending in confession.

But confessorial testimony, having punishment, or evil in some other shape, for its visibly impending consequence, does not, in the ordinary course of things, come willingly, or singly, or in the first instance. The instrument being applied, some course, on the part of the proposed respondent, cannot but be taken. Instead of this most visibly dangerous course, he betakes himself (if not definitively, at any rate in the first instance) to all other possible courses; no other course presenting to view the image of punishment as following with a step so sure. But, of all these possible courses, if the proposed respondent be really delinquent, there is not one that will not (if the judge be at the same time willing and at liberty to follow the manifest dictates of justice and common sense) operate, with a degree of probative force more or less persunsive, towards conviction: because that which is visible to common sense, as being consonant to constant and universal experience, is, that there is not one of them all that a man ever betakes himself to and persists in, in case of veracity and innocence.

True self-exculpative testimony being by the supposition incapable of being delivered,—his constant resource (were it not for the inferences which, on such an occasion, every man, as is visible to him, would draw from it) would be silence. But silence being in such a case, by common sense, at the report of universal experience, certified to be tantamount to confession, though by a mode of expression as general as possible—tantamount, at any rate, to the purpose of disrepute, if not to the purpose of legal punishment,—this is (excepting confession in particular and explicit terms) his last resource.

Thus repelled from that which would otherwise be the easiest as well as safest course, his next endeavour is to tax his invention for such statements of an exculpative tendency, as, though false, shall present the fairest prospect of being taken, from first to last, for true. But, besides the difficulty, a defence of this kind is attended with constant and manifest peril; for no sooner does any statement present itself, which by its inconsistency with other statements of his own already delivered on the same occasion, or with facts understood from other sources of information to be true, is understood to be false, and believed at the same time to be wilfully false,—than another evidence of delinquency is afforded, still more probative and impressive, because more particular, than mere silence.

True self-exculpative discourse is not to be had. Silence would operate as confession. Of a course of false responsion, if understood to be false, and the falsehood wilful, the effect would be still worse than that of silence. False responsion of an exculpative tendency, in any shape that promises security against detection, not being to be found,—his next endeavour is to find, and to obtain acceptance for, such discourse as, at the same time that it affords no inculpative evidence, shall not be liable to be taxed with being false. Discourse of this description is that which, in respect of its object, is termed evasive, and in respect of its nature is either irrelevant or indistinct; for being relevant, and at the same time distinct, it could not fall to be either true or false.

If nothing of this cast be to be found, or if his employable stock of it be exhausted, he has then left but one alternative, which is either silence, as above, or confessorial evidence; which (in so far as true) it depends upon the interrogator to draw on till it terminates in confession.

But, after interrogation—which (coming from a person whose station, by office or by the occasion, is that of a superior) is, in other words, an order requiring a man to speak—silence is an act of disobedience. Confessorial discourse is the result of submission—of compliance. Of non-compliance with his will it is the property to call forth ill-will on the part of him towards whom it is manifested, especially of the man in power; of compliance, good-will. Silence, therefore, on the part of the affrighted culprit, seems to his ear to call for vengeance; confession holds out a chance for indulgence.

While devising and pursuing a plan of self-exculpative misrepresentation, the discourse held by the delinquent will naturally be of a motley cast, presenting a mixture of falsehood, evasion, and truth. Falsehood, under the apprehension of the discredit which attaches instantly upon detection, will be hazarded then, and then only, when evasion seems no longer practicable, and the response, if true, could not be otherwise than manifestly confessorial. Truth, then, will almost always form, and that in no inconsiderable proportion, a part of the delinquent’s self-exculpative tale. But such and so visible is the connexion between truth and truth—between the fact of delinquency and all the several facts that have accompanied or led to it,—that, of the admixture of truth thus unwillingly inserted, a portion more or less considerable (in one way or other, with or without his knowledge,) though designed to operate in a way opposite to confession, will operate in effect in the character of confessorial evidence.

And thus it is, that—by one and the same process, the process of interrogation (where the respondent who is suspected to be a delinquent is really so)—in spite of, and in consequence of, the endeavours used by him to impress the persuasion of his innocence,—silence or non-responsion, evasive responsion, false responsion, confessorial responsion (one or all of them, in infinitely diversifiable proportions,) will be extracted: each of them contributing to conviction; each of them evidentiary of delinquency,—operating in the common character of self-disserving, to wit, self-inculpative, or self-criminative, evidence.

In species and denomination, the infirmative considerations applicable to self-disserving evidence thus extracted by interrogation, are the same as those applicable to evidence from the same source and of the same tendency, when delivered without interrogation.

But, in respect of force, they are, in every instance, decidedly inferior. Why? Because, in every instance, the infirmative considerations are mere suppositions—suggestions of states of things neither proved nor so much as probabilized, but merely brought to view as being at the same time possible, not glaringly improbable, and not disproved, in whatsoever degree disprobabilized.

But, of the process of interrogation, by whomsoever performed (if performed with an impartial view, or, what comes to the same thing, with partial views on both sides,) it is the known object and effect, by the most efficient means, to clear up all such uncertainties.*

§ 2.

Difference, in point of effect, between extra-judicial and judicial interrogation.

Compared with each other, self-inculpative evidence extracted from a supposed delinquent by extra-judicial interrogation, and evidence of the like denomination extracted by judicial interrogation, have their natural points of advantage and disadvantage, the observation of which is pregnant with instruction of practical use:—

1. To extra-judicial interrogation, considered as an instrument for the extraction of truth from unwilling lips, belong naturally two disadvantages: comparative deficiency in respect of coercive power; and comparative deficiency in point of intellectual skill.

Of these disadvantages, however, neither is constant in point of existence, or uniform in degree.

The interrogator is not indeed himself the judge,—the judge by whom the decision, grounded on the evidence so extracted, is to be pronounced. But on this head (unless where, in virtue of some particular connexion, the supposed delinquent is, by sympathy or any other cause, assured of concealment on the part of his interrogator) the difference will not be very considerable; inasmuch as every question will naturally present itself as if backed by the authority of the judge.

2. In the process of interrogation, the casual interrogator will not in general possess experience, nor (so far as depends upon experience) skill, equal to what may be naturally expected on the part of the judge. But, in this respect, the father or other head of a considerably numerous family, will not in general be much behind even an official judge: and whatsoever superiority in point of acquired skill may be expected to have place on the part of the official judge, the superior interest and zeal that may no less reasonably be looked for on the part of the domestic interrogator may be considered as forming in general no inadequate compensation.

On the other hand, in the circumstance of surprise may be seen a circumstance from which the situation of the domestic interrogator will be apt to derive a considerable advantage. From the domestic inquirer may come a question, or string of questions, at a time when no thoroughly-considered plan of mendacious defence can as yet have been adjusted; whereas the interval between arrestation and judicial interrogation will afford for the purpose of mendacious invention (not to speak of mendacious suggestion in case of concert amongst co-delinquents) a quantity of time over and above whatsoever in the same individual case the delinquent could have applied to the purpose of his defence against the casual inquisitiveness of extra-judicial interrogators.

One great, and, as it should seem in general, decisive, advantage, attaches beyond dispute to the side of the judicial interrogator. It rests with him to continue the process of interrogation (that is, to keep the supposed delinquent in a state of subjection to it) for whatever length of time appears to him to be necessary and sufficient for the purpose—for the extraction of whatever mass of evidence the proposed respondent is looked upon as capable of yielding—for the extraction of it in all its plenitude.

On this occasion, there are four distinguishable objects with which self-disserving evidence, extracted by judicial vivâ voce interrogation, will require to be compared; the evidence being in all four cases supposed to issue from the same source (i. e. from the same individual,) and to be of the same tendency;—viz. 1. Evidence delivered extra-judicially, and without interrogation, by word of mouth; 2. Evidence delivered extra-judicially, and without interrogation, in a written form; for instance, in the form of a private memorandum, or of a letter, sent or not sent, 3. Evidence delivered extra-judicially, in consequence of interrogation by word of mouth; 4. Evidence delivered extra-judicially, in consequence of interrogation in a written form.

Expressed in the written form, the evidence, taken in itself, is more apt to be incomplete; and in such a way incomplete, as, in respect of partiality, to be deceptitious. Why? Because, on the occasion of writing, the writer (the supposed delinquent) has in general more time at command for the purpose of mendacious invention; nor are the workings of his invention in a situation to receive that disturbance which it is natural they should receive, from the presence of a person at whose hand hostile suspicion (or at any rate prying curiosity) and consequent interrogation, whether eventually applied or not, will naturally be apprehended.

When delivered in the form of a letter, the person to whom the statement is addressed must, for a length of time at least, take it as it comes. Delivered orally, no sooner are gaps discovered in the texture of it, than comes a question requiring them to be filled up;—no sooner ambiguity or obscurity, than the clearing of them up. Self-regarding evidence, delivered by a delinquent in the written form, will, therefore, be more likely to be deceptitious, i. e. guarded against detection, and so effectually as to produce the deception aimed at by it; viz. where deception was an object which it had in view. But in some cases it has no such object; as when the cast of it is conspiratorial, simply confidential, or jactitantial.

At the same time, such as it was delivered—delivered from the mind of the writer,—such, and without alteration, without being exposed to be misreported, it is sure to be presented to the mind of the judge: whereas, if delivered in the oral form, it will always be liable to alteration—liable to be misreported by the deposing witness, through the channel of whose lips (it being extra-judicially delivered in the first instance) it cannot but have passed.

As to interrogation in the written form (as when statements which have been extra-judicially delivered have eventually been made use of as evidence, and thereupon have assumed that responsive form of which interrogation, when submitted to, is naturally productive;)—it is a possible case, but a case not by any means likely to be frequently exemplified; rarely indeed, when compared with the form which discourse so readily assumes under the process of interrogation when performed by word of mouth. Why? Because, out of the presence of the interrogator, compliance with the command expressed by interrogation is, if irksome, refused without difficulty: evasive responsion, if responsion be resorted to, is more easy: silence, being liable to be accounted for by so many other causes besides delinquency, is resorted to with less reserve. A plan of self-exculpative mendacity is pursued with more time for the continuance of it, and with better promise of success; and, from amongst the truths which, to guard against detection, it may be necessary to intermix, a selection is made with greater facility and safety, of those which (for fear of their being found to operate with a self-disserving, a self-inculpative tendency) require, and may (it is supposed) bear, to be omitted.

Of discourse orally delivered it is moreover the nature, when the apprehended tendency of it is (as here) self-criminative, to bring with it another species of criminative circumstantial evidence (which will be brought more particularly to view in another chapter,) viz. fear, as indicated by deportment, more particularly passive deportment; and from an accompaniment thus treacherous it is a characteristic property of written discourse to be altogether free.

Meantime, howsoever (being orally delivered) the evidentiary self-criminative discourse may have been accompanied with any such symptoms, in the state in which on the extra-judicial occasion it was delivered to the percipient witness (interrogating or not interrogating,) by whom, in the character of a deposing witness, it is reported to the judge;—yet, when thus reported to the judge, it comes accompanied, not by the symptoms themselves, but only by the report so made of them: to which report it may happen to be in any degree incorrect or incomplete, or both.

Of the comparative view thus taken, what is the practical result? Not preference, followed by adoption and rejection, but conjunction. Each mode and form is marked by its peculiar advantages, counteracted by its peculiar disadvantages: both, therefore, should be called in to the assistance of justice.

Expressed originally, whether in writing or in conversation, the probability is, that the evidence in question (especially being, as it is, self-regarding, and subject to the risk of being found self-criminative) will abound with gaps, with dark passages, with broken hints. All these imperfections, the judge, and he alone, is competent to do what can be done towards remedying. In his hands alone is reposed adequate power, and whatsoever time, in his view of it, the occasion needs.

Self-inculpative discourse, when it is uttered extra-judicially (designedly or undesignedly, with or without a view to its being employed as evidence,) can never be an adequate succedaneum to judicial confession, the plenitude of which is secured by judicial examination. In the former case it is not itself the proper evidence; it is no more than indicative of the source from whence conclusive evidence may by the proper process be obtained, and of a sample of what may be expected from that source. It is not the best—the most satisfactory, evidence that the case furnishes; it shows where better, where still more satisfactory evidence, is to be had: and it may require completion and explanation (not to speak of opposition and confutation,) not only for the benefit of the party by whom it is produced, but even for the benefit of the party whose confession it is, and against whom it is produced.

But although it be thus indicative of a lot of evidence more satisfactory than itself, the use of the inferior is not always superseded by the superior evidence.

1. A case that happens not unfrequently, is this:—after a true confession more or less full, delivered extra-judicially,—when the confessionalist comes to be examined in a judicial mode, he repents, and, instead of confirming the truths he has disclosed, betakes himself to falsehood. When the extra-judicial confession was suffered to escape from his lips, the debt thus paid to truth had the confusion of mind he had been thrown into for its cause: his presence of mind regained, he endeavours to avail himself of it, and attempts to take back the lights that had transpired from him when off his guard. As one man is confronted with another, the interests of truth and justice require that, in such a state of things, a man should be confronted with himself. The extra-judicial confession may be consistent with facts established from other sources: the judicial retraction may be alike inconsistent with the extra-judicial confession and with these established facts. The extra-judicial confession may obtain credence: the judicial retractation may with reason be disbelieved.

2. Even when the two lots of information accord—when the extra-judicial confession, instead of being contradicted by a judicial retractation, is confirmed by a judicial confession—the extra-judicial confession may be not altogether without its use. The first confession giving confirmation to the second, as well as receiving confirmation from it, may serve to render more complete the satisfaction of the judge.

3. Where the judicial confession accords with the extra-judicial, the utility of it will be still more apparent, in the case where both of them happen to stand contradicted by other evidence. How should this happen? (it may be said.) The defendant has himself acknowledged the offence—acknowledged it once and again: what hope can remain to him to overthrow the effect of this double acknowledgment by inferior evidence? of the two acknowledgments, by evidence that is not a match for either?—To him, to the same man, not. But a case that may happen, and does happen not unfrequently, is—the evidence that a man gives against himself applies with equal pertinency to the case of another man; say, as in a criminal case, an accomplice.* The confessionalist acquiesces, as he cannot but acquiesce, in the consequences of his confession thus repeated and confirmed. But the second accomplice, having his separate plans of defence, having hopes where his confederate has none, denies the truth of the confession, and seeks to combat it by other evidence.

4. Lastly: Another case that may happen, and which will on another occasion† be brought to view is,—after furnishing the extra-judicial evidence, and before there has been time or opportunity for following up the indication by judicial examination, the confessionalist dies, or ceases to be forthcoming. By his death, the possibility of inflicting punishment (punishment rightly seated) ends; and therefore, so far as punishment is concerned, there the cause ends; and therefore the demand for other evidence, for judicially-extracted oral evidence, along with it. As to punishment, yes; and therefore as to causes in which punishment, and nothing but punishment, is or ought to be demanded.‡ But as to satisfaction, the demand for decision may remain, and therefore (for the purpose of a decision on that ground) the demand for evidence. While the confessionalist was alive, his extra-judicial confession was, in comparison with his judicial deposition (if subsequently taken,) but an inferior kind of evidence. The source, however, of the superior evidence being dried up by death, the inferior, the extra-judicially confessorial evidence, takes its place,—a species of evidence which, howsoever inferior to the confessorial part of the judicial evidence from the same source, is, as far as it goes, superior (as we have seen) to every other species of evidence.

Thus far as to penal cases. In cases not penal, the necessity of employing it is still more evident.

The necessity of treasuring up and employing this species of extra-judicial evidence will be equally evident, where the completion of the confession, by the judicial examination of the confessionalist, has been rendered impracticable for a period, determinable or indeterminable, but not known to be perpetual, such as absconsion or expatriation.

So much for the importance of interrogation, as applied to the extraction of self-disserving evidence from the suspected delinquent.

No supposition surely can be more unnatural than this,—viz. that, if discovery of truth, and consequent rendering of justice, had been the object, the use of an operation so necessary to the discovery, so obviously and indispensably subservient to the purposes of justice, would ever have been rejected. But, under the technical system, the interests and ends of judicature being, from first to last, opposite and hostile to the interests and ends of justice,—whatever exertion and ingenuity has been bestowed, is applied, not to the discovery of truth, but to the finding of pretences for not discovering it: not to the administering of justice, but to the finding of occasions and pretences for administering injustice in its stead.

Governed, if not by sinister reason, by blind caprice under the mask of tenderness, English lawyers, admitting self-disserving evidence when supposed to have been extrajudicially delivered or extracted, forbid it to be judicially extracted or received—extracted by the judge by whom the decision is to be formed. Receiving it in an incomplete state, they will not suffer it to be completed. Receiving it in the state of hearsay evidence, they refuse to receive it in the state of immediate unaltered evidence. Receiving it in a variety of bad shapes, they refuse to receive it in what, by their own uniform acknowledgment, is the best.*

Tenderness!—to whom? To the innocent individual, maliciously or erroneously accused? No: what it does for him is, where misrepresentations have taken place tending to his unjust conviction, to refuse him an opportunity of clearing them up.

To the guilty? No, not even to the guilty, considered in the aggregate. By the promise it gives of escape, it augments the number: the number being so great, thence comes the pretended necessity, the factitious demand, for excessive punishment:—the deficiencies in certainty must be made up in magnitude. Death is the English judge’s universal remedy: higher he cannot screw up the exertions of blind barbarity. To this point the labour of every session adds: at this a stop is made, because there is nothing beyond it.

It is the part of the same man, the same natural and implacable enemy of justice—on the one hand, to keep watch and ward in favour of the murderer, charging him not to let drop any the least hint from which justice may receive assistance, not to say anything by which his guilt may be brought to light; and, on the other hand, to be no less active in his exertions to extend the demesnes of death. To the profit of cold barbarity, he adds the praise of tenderness. The manly dictates of public utility are sacrificed to the cant of hypocritical or childish sentimentalism. The excess of the punishment becomes a sufficient warrant for not executing it. Extending the demesnes of death, he thus extends the mass of his own despotism: of that preposterous state of things by which, every year, the lives of men, by dozens and by scores, are laid at the feet of every English judge.†

CHAPTER VIII.

OF CONFUSION OF MIND, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUENCY.

Another modification of subsequential circumstantial evidence is confusion of mind:—confusion, as expressed and betrayed whether by countenance, by discourse, by conduct, or by all three. This may also be considered as a sort of sub-modification of circumstantial evidence; a modification of confessorial evidence: with this difference only:—Confessorial evidence is personal evidence; confusion of mind is real evidence:—The presumed state of mind, the state of mind evidenced by the external indications, is psychological real evidence; the indications themselves, physical real evidence.

Hesitation alone—hesitation without confusion—would be misinterpreted if it were looked upon as an indication of falsehood; much more if of wilful falsehood. Hesitation has for its cause—its most natural and frequent cause—anxiety to shape the narrative by the exact line of truth, accompanied with a difficulty a man experiences in his endeavours to accomplish it. Correct memory, and adequate expression, are both necessary to this end: by the consciousness, or even mere apprehension, of tailure in either article, hesitation may be produced.

The most careless and least scrupulous of witnesses are frequently among the most fluent.

Suspicion, indeed, is not altogether without ground, when, to hesitation, confusion is added. Confusion is the result of consciousness of manifested inconsistency, of inconsistency with itself or with indubitable truths,—a repugnancy which is among the surest indications and proofs of falsehood: but, of any such inconsistency, a man who means nothing but the truth is not in much danger of labouring under any serious apprehension. The truth, and nothing but the truth, is what, by the supposition, he means to hold up to view. Truth cannot be inconsistent with itself: two truths, parts of one and the same complex truth, cannot be inconsistent with each other. Truth, in all its parts, is the one thing, and the only thing, his memory is in search of. In regard to some parts, at any rate, he is singularly unfortunate if he cannot make sure to himself of possessing it: these parts he will at any rate adhere to. Others, of which his hold is not so strong, he will adhere to no otherwise than upon the supposition of their being compatible and consistent with those fundamental stronger ones. Should any inconsistency display itself, he will abandon these weaker points, without difficulty and without confusion, that is, without shame or other fear: having nothing to suffer from the temporary mistake—no point of his own to lose by it.

Confusion affords a presumption, more or less strong, of the fact contested by the party; but not absolutely a conclusive one. It proves alarm; and, in the case in question, the most natural cause of alarm is the apprehension of seeing the contested fact taken for true. But this, though in the sort of case in question the most frequent and natural cause of the alarm, is by no means the only one.

1. It may be, that,—although the fact in question, the fact contested by the party, was not true,—yet some other fact, the declaration of which would in some other way be prejudicial to him, was true: and that the alarm was produced by the apprehension of seeing this other fact brought to light.*

2. It may be, that, in respect of the fact in question (the offence in question,) appearances are against him, notwithstanding his perfect innocence; and the consciousness of this circumstance may be the cause of his confusion.

CHAPTER IX.

OF FEAR, IN SO FAR AS INDICATED BY PASSIVE DEPORTMENT, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUENCY.

A class of cases has already been brought to view,† in which the principal fact in question (viz. delinquency in this or that shape) cannot be probabilized by the evidentiary fact deposed to before the judge, without the intervention of some other fact or facts, constituting, together with the principal fact and the evidentiary fact, an evidential chain of a peculiar nature. The case where fear, howsoever supposed to be manifested, is the fact considered as evidentiary of delinquency, belongs to this class.

In a chain of this sort, the number of links will be different, according as it is to the perceptions of the judge himself, or to those of some other person by whom, in the character of a deposing witness, it is reported to the judge, that the fact here considered in the character of an evidentiary fact (viz. fear) presents itself.

First, suppose the judge himself the person to whose senses the fear (i. e. the appearance of fear) manifests itself. The links of the evidentiary chain will then succeed one another in the manner following, viz.:—

1. Link the first (group of evidentiary facts immediately presented to the senses of the judge,)—symptoms of fear. These, being objects of sense, must all of them be such as come under the description of physical facts.‡

2. Link the second,—the emotion of fear: a psychological supposed fact, inferred and supposed to be probabilized by these physical appearances;—fear, having for its supposed cause the expectation of the evil consequences (legal punishment included) considered as attached to the offence in question, by means of the ensuing links.

3. Link the third,—self-inculpative recollection: the memory of the supposed delinquent presenting to him the wrongful act as having been committed by him; viz. the physical act, positive or negative, accompanied with its criminative circumstances.

4. Link the fourth,—the criminal act itself, as above.

In an evidentiary chain of this sort, it has been already mentioned as the principal use of, and reason for, the operation of distinguishing link from link, that to each link belongs a distinct set of infirmative considerations, capable of operating in diminution of its probative force. The truth of that observation will be found exemplified in the present instance.

In this case, the chain of inference by which these four distinguishable links are connected stands thus:—1. From the physical appearances, regarded as symptoms of fear, the existence of that emotion is inferred; 2. From the supposed existence of that emotion, the existence of the criminative recollection above mentioned; 3. From the existence (viz. the present existence) of that recollection, the existence (viz. the past existence) of the criminative fact itself.

In relation to the second of the above three inferences, what must be observed is, that, for the purpose of forming the inference, the nature of the occasion is an object that must indispensably be called in; since, but for this, even supposing fear to be the emotion sufficiently established by the symptoms, this emotion might have had any other cause than the particular cause thus ascribed to it.

But for the occasion, the probative force of this circumstance would scarce amount to anything: add the occasion, and of itself it cannot but be very considerable. Infirmative considerations there are, as will be seen, to the disprobabilizing force of which it stands exposed; but of these—of all these taken together, the disprobablizing force (it will be seen) will not in general be very considerable.

The occasion here in question is the circumstance of the supposed delinquent’s being taxed with, or being supposed by himself to be suspected of, the particular act of delinquency in question: the existence of which occasion is always part of the case.

The second link is constituted, therefore, properly speaking, not of the fear alone, but of the fear combined with the occasion; since it is by the occasion that the existence and operation of those other possible causes, which will be brought to view in the character of infirmative possibilities, will be rendered improbable.

It is with this psychological sort of chain, as with a physical one: the chain is the weaker, the greater the number of links which enter into the composition of it. Why? Because each link brings with it is particular infirmative possibilities.

I. Inference forming the joint or connexion between link the first, viz. physical supposed symptoms of fear—and link the second, viz. the emotion of fear itself.

Infirmative possibilities applying to this joint:—

1. The cause of the appearances different: a purely physical fact, viz. bodily indisposition.

2. The cause of the appearances different: a psychological fact, indeed, and that an emotion, but a different emotion, such as grief or anger: grief or anger produced, for example, by the consideration of the wound inflicted on reputation, notwithstanding innocence.

II. Inference forming the connexion between link the second, viz. the existence of the emotion of fear—and link the third, viz. the existence of a criminative recollection, having for its subject the particular offence of which the supposed delinquent understands himself to be accused or suspected.

Infirmative possibilities applying to this inference:—

1. Recollection criminative indeed, but not in the way in question: recollection of an offence committed, but an offence different from that of which the supposed delinquent stands accused or suspected.

2. Recollection of an offence committed, not by the individual himself, but by some other individual connected with him by some tie of sympathy, and in whose instance the inquiry, it is apprehended, may be productive of conviction or suspicion.

3. Recollection of a fact by means of which, without any delinquency on his part, vexation has been, or appears likely to be, produced, in this or that shape, to himself,

4.—or to another person, or even a class of persons, more or less extensive, connected with him by some tie of sympathy.*

5. Apprehension of punishment, notwithstanding innocence. Of this infirmative probability the disprobative force will depend, it is evident, in a considerable degree, upon the general complexion and character of the system of procedure under which the inquiry is made.

6. Contemplation, prospect, of the vexation attached to prosecution, notwithstanding innocence: another circumstance the infirmative force of which will be seen to depend, more or less, on the system of procedure.

III. Inference forming the connexion between link the third, viz. supposed recollection of the criminative fact in question as committed by him—and link the fourth, viz. the actual commission of the act so supposed to be recollected.

Infirmative possibility:—

Falsity of the supposed self-criminative recollection.

The error here supposed will present itself as being of a nature not very apt to be realized. It is capable, however, of taking place, not only in case of mental derangement, but in the case of habitual delinquency; especially if the time of the supposed offence be very remote.

Apprehended and examined, though for a theft in which he had no part, an habitual thief will naturally enough exhibit symptoms of fear; and, confounding one of his exploits with another, may suppose himself to recollect a theft in which in truth he bore no part.

Such are the conceivable facts which, in the character of infirmative probabilities, apply to the criminative force of fear, when the symptoms of it apply themselves without the intervention of any other medium to the senses of the person by whom, in the character of judge, the conclusion is to be formed—the decision grounded on them formed and pronounced.

If, instead of the phenomena themselves being presented to his senses, what is presented to him is but a report made concerning them by some other person, by whom they are stated as having been presented to his senses,—the probative force of them stands, in that case, subject to the infirmative operation which attaches upon supposed unoriginal evidence, as compared with the original evidence itself: an infirmative circumstance of the same nature as that by which (according to a distinction already noticed) supposed real evidence reported, is distinguished from the real evidence itself; and of which a more detailed view will be given in the next succeeding Book.

To the additional joint added to the evidentiary chain by the presence of this fifth link, the following circumstances present themselves as applying in the character of infirmative possibilities:—

1. Possible untrustworthiness (whether in respect of moral or intellectual qualifications) on the part of the reporting witness; viz. the supposed precipient witness, speaking in the character of a deposing witness.

2. Impropriety of the shape in which his testimony was received or extracted.

If to the deciding judge this testimony be presented not in the oral but ready-written form,—3. Inaptitude, whether in respect of moral or intellectual qualifications, on the part of the receiving or extracting judge.

CHAPTER X.

OF CLANDESTINITY, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUENCY.

Under this class of criminative circumstantial evidence, may be noted the following distinctions, viz.:—

1. Clandestinity, by concealment of the forbidden act or principal fact itself: for example, by doing in the dark what, but for the criminal design in question, would naturally have been done in the day; or choosing a spot which is supposed to be out of the view of everybody, for doing that which, but for the criminal design, would naturally have been done in a place open to observation.

2. Clandestinity by concealment of the person of the supposed delinquent while occupied in the act: as in the case of disguise.

3. Clandestinity by concealment of the part taken by the supposed delinquent in the commission of the act—in the production of the mischievous result: concealment, for example, of the purpose for which the act, viz. the physical act, is performed; as, in the case of murder by poison, the several acts by which the poison is prepared, or put into the hands of, or recommended to be taken by, the person intended to be poisoned.

4. Clandestinity, by eloignment or deception of witnesses to the act: exertions employed for removing this or that person from the scene of the intended unlawful action; under the supposed apprehension of his becoming (in relation to the forbidden act, its accompaniments, or consequences) a percipient, and thence eventually a deposing witness.

5. Clandestinity, by eloignment or concealment or destruction of criminative real evidence. Concerning the modifications of real evidence, see above Ch. III.

6. Forgery in relation to real evidence; viz. either by fabrication of exculpative appearances, or by alteration of inculpative into neutral or exculpative. The modifications of which it is susceptible correspond of course with those of real evidence.

Disguise of the person—a mode of clandestinity already brought to view—may be considered as a modification of forgery in relation to real evidence.

On the preceding occasion,* forgery in relation to real evidence was considered as capable of being practised by others, to the prejudice of the supposed delinquent: here, it is considered as practised by him. There, it was an infirmative, an exculpative probability: here, it is an inculpative fact.

Being a mode of deception, effected or attempted—a species of falsehood,—and, as such (no less than forgery in relation to written evidence) a modification of the crimen falsi of the Roman school—falsehood uttered by deportment,—it is in that respect closely allied to falsehood in the same intention uttered by discourse.

It may be moreover considered as being, in relation to real evidence, that which subornation is to personal. As in the one case, so in the other, objects of the class of things are thus pressed into the service of delinquency.

7. Opposition to search made for real evidence. See the next chapter.

Clandestinity, in what manner soever aimed at, may be considered as evidentiary of fear: and in that way, and that way alone (through the chain of inferences of which that emotion constitutes, as above, the principal link,) constituting a circumstantial evidence of delinquency in this or that shape, as explained by the occasion, as above.

In the case of fear, as above explained, the emotion itself, the psychological (and that a pathological) fact, constitutes but the second link in the evidentiary chain: the first link was constituted by the physical symptoms from which that psychological fact is inferred. In the case of clandestinity, under the several modifications as above enumerated, the positive voluntary physical acts by which the concealment is effected or endeavoured at, stand in the place of the involuntary appearances, the pathological symptoms, by which, in the other case, the emotion is betrayed.

1. Intention or design, differently, but equally, or more, culpable; 2. Intention or design less culpable; 3. Intention or design blameless, though requiring secrecy.* These are among the infirmative counter-probabilities which have just been seen, in the case of fear, applying to and weakening the probative and criminative force of that emotion: they may here be seen applying with equal force to the criminative force of clandestinity, in these its several shapes.

To the probative force of the inference, which, in the case of fear, binds together the two first links (viz. the aggregate of the physical or pathological symptoms, and the psychological emotion,) two infirmative counter-probabilities were seen applying themselves; viz. 1. The emotion different (for example, grief, or anger;) and 2. The cause of the physical symptoms, not psychological, but purely physical, viz. bodily indisposition.

In the case of clandestinity, in the place of those infirmative counter-probabilities stands another, characterizable by the word sport: the clandestinity having for its object and its cause, desire of producing sport, merriment, pastime; and not delinquency in any shape.†

At the end of a judicial investigation, it does not often happen that, in a case of clandestinity, the decision, as between sport and criminality, can be attended with much difficulty. But, for want of timely explanation, sport indiscreetly pursued has every now and then been itself an object of pursuit, when thus enveloped in the livery of guilt. A man who endeavours to pass for a ghost, risks the being taken for a thief, or something worse.‡

Forgery, in relation to real evidence, has an infirmative counter-probability peculiar to itself; viz. self-defence:—the individual innocent, exertions made to remove physical appearances, which (whether produced by nature or by human malice, viz. in the way of forgery) tend to fix a criminative imputation on him, in the circumstances in which he happens to be placed.

In the view of removing the imputation from himself, a murderer has been known secretly to deposit in the apparent possession of an innocent person the blood-stained instrument or garment, or some other such article, so circumstanced as to operate in the character of a source of criminative real evidence.* In this case, were it the lot of the innocent man to be observed in the night time retransferring the articles to the place from whence they came, it is to him, instead of the murderer, that the artifice might thus come to be imputed.†

CHAPTER XI.

OF SUPPRESSION OR FABRICATION OF EVIDENCE, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUFNCY.

Supposing the whole mass of evidence actually suppressed, no such discussion (it is evident) can have place, as the inquiry concerning the probative force belonging to any part of it, or the circumstances, by the consideration of which, that force may be diminished.

But, under the head of these several modifications of criminative circumstantial evidence considered as deducible from active deportment, the attempt, successful or unsuccessful, is to be understood: for it is by the attempt, successful or unsuccessful, that the state of the mind is indicated; and it is from the state of the mind, that the criminative inference is (not less properly than naturally) deduced.

Preventing as it were the birth of evidence, by preventing from becoming witnesses (i. e. percipient witnesses) those by whom that character might otherwise have been acquired, is a criminative circumstance already brought to view, viz. under the head of clandestinity. The circumstances in view under the present head, are such as are capable of taking place at a more advanced stage of the business, viz. at any point within the length of time intervening between the moment in which the offence is considered as having been committed, and the moment at which the evidence produced in consequence of prosecution comes to be delivered. The mal-practice here in question is, therefore, any act whereby a person who, in relation to any criminative fact in question, has already been in the condition of a percipient witness, is prevented, or is endeavoured to be prevented, from appearing in the character of a deposing witness. But to draw, for the separation of the two objects, a clear line of distinction applicable to all cases, would be found impossible.

Under one or other of the two general heads here mentioned, the following specific modifications of circumstantial criminative evidence seem comprisable:—

1. Destruction, concealment, eloignment,* or falsification of any already existing source of real or written evidence, tending or supposed to tend to the inculpation of the supposed delinquent.

2. Interception of evidence, oral, real, or written. Measures taken to prevent the forthcomingness or delivery of the evidence of a person whose testimony, in the character of a deposing witness, would tend, as supposed, to the inculpation of the supposed delinquent; or the evidence deducible from the written document, or other thing capable of operating in the character of a source of written or real evidence: ex. gr. by obstacles thrown in the way of whatever antecedent operations may be necessary to the delivery of it.†

3. Subornation: causing a person to deliver false testimony, tending to the exculpation of the supposed delinquent.

4. Fabricating, or causing to be fabricated, evidence, real or written, tending to the exculpation of the supposed delinquent.—N.B. This is one out of several modifications of forgery in relation to real or written evidence.

As to infirmative counter-probabilities, considered as applicable to the criminative circumstances comprehended in this class,—the generally applicable ones already mentioned may perhaps be found, some of them, to be applicable upon occasion here, though in general with but a slight degree of probative (or rather disprobative) force.

The infirmative counter-probability peculiar to this class may be thus designated: apprehension of similar mal-practice on the other side.

The supposition that, in the character of an infirmative counter-probability opposed to any of the criminative circumstances in question, this consideration can operate with any such degree of disprobative force as to render it worth employing, involves the supposition of no ordinary degree of depravity on the part of the national character at the time.

English law affords a story, which, whether meant for truth or jest, may alike serve for exemplification. Pressed for payment on a forged bond, a man applies to his attorney. Client. “What is to be done?”—Attorney. “Forge a release.” On looking back, one cannot say exactly how far, it might not be impossible to find, even in English history, a period in which a story of this sort might have had a foundation in truth.

In some countries there have been said to exist a sort of houses of call, or register offices, for a sort of witnesses of all work, as in London for domestic servants and workmen in different lines, and in some parts of Italy for assassins.

Ireland, whether in jest or in earnest, was at one time noted for breeding a class of witnesses, known for trading ones by a symbol of their trade, straws sticking out of their shoes.

Under the Turkish government, it seems generally understood that the trade of testimony exists upon a footing at least as flourishing as that of any other branch of trade.

CHAPTER XII.

OF AVOIDANCE OF JUSTICIABILITY, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUENCY.

On the part of the supposed delinquent, the acts or modes of conduct immediately directed to the production of this effect may be this enumerated:—

1. Expatriation: migration into the dominion of some foreign state; viz. of some foreign state in which, at the instance of the judicatory in question, justiciability on the part of the supposed delinquent will not (it is supposed) in the case in question be enforced.

2. Exprovinciation: migration into another juridical district within the dominion of the same state; viz. in so far as such change of place is regarded as being, definitively or for a time, productive of the like effect.*

3. Latency: the supposed delinquent being so circumstanced as that means whereby he may be found, as well as the spot where he is, are unknown; viz. to him who, in the character of judge, or in that of prosecutor, is desirous of causing his person to be forthcoming, for the purpose of his being justiciable.

4. Latitancy: i. e. where the non-forthcomingness of the supposed delinquent is clearly understood to have the avoidance of justiciability for its cause.

5. Eloignment of property: i. e. by expatriation, exprovinciation, transfer into other hands, or concealment.

6. Tampering with any person, on whom, in whatever character, ex. gr. in that of minister of justice, permanent or occasional, superordinate or subordinate (prosecutor, in the case of an offence considered as being of a public nature, included,) his justiciability may depend.*

The several special inculpative circumstances comprised under this more general head being all of them indicative of fear—fear having its source and object in the power of the law,—the infirmative counter-probabilities applying to this case are pro tanto the same as those which apply to that.

In the case of the four that consist in so many expedients employed or supposed for the avoidance of personal forthcomingness, the infirmative consideration already above designated by the phrase contemplation of juridical vexation notwithstanding innocence, operates with peculiar force.

A circumstance that demands attention, with an immediate view to practice, is, that this force will of course undergo variation, according to the nature of the system of procedure—according to the mode and the degree in which it is subservient or adverse to the several ends of justice.

The exculpative force of this infirmative counter-probability will be the greater—in other words, the probative force of the criminative circumstance constituted by avoidance of justiciability by eloignment or concealment of person will be the less—the greater (for example) the vexatiousness or the length of the imprisonment to which, by accusation or suspicion of the offence in question, a man stands exposed: understand provisional imprisonment (in technical language imprisonment on mesne process,) so circumstanced that the innocent as well as the guilty stand exposed to it† .

Other differences might be cited, by which the determination, whether to abide or not to abide the course of penal procedure, could not but be more or less affected: the severity of punishment, and the severity of the process employed for the extraction of evidence. In France, while breaking on the wheel and other excruciating modes of capital punishment were in use, the hazard attending such abidance could not but present itself as considerably greater, and consequently the inference from flight to delinquency considerably less cogent, than at present, when simple death is the highest degree in the scale: and another, and perhaps still greater, difference, could not but be attached to the useless barbarity of preparatory torture.*

Health—business—pleasure,—by any one of these objects of pursuit may a man be engaged in a plan of expatriation, exprovinciation, or eloignment of property: by pursuit of pleasure, possibly even by pursuit of business, he may be engaged in a plan of latency: here there are so many infirmative counter-probabilities operating in diminution of the probative force of the four circumstances in question, in the character of evidences of fear of the hand of law, and thence as evidences of delinquency.

In a word, under one or other of these three modifications the ordinary pursuits of mankind in general being comprehended, the consequence in regard to the circumstances in question is, that, considered in themselves, and independently of every other circumstance of a criminative tendency, they can scarcely be considered, even putting all of them together, as operating with any perceptible degree of criminative force.

The presumption afforded of delinquency by any one of these changes will be the stronger, the greater the deviation it makes from the course of life habitually pursued by the supposed delinquent.

In the case of a mariner, a carrier, an itinerant vender, or an itinerant handicraft, it may amount to nothing: in other words, the disprobative force of the infirmative counter-probability denoted by the expression pursuit of business, may be so great as to reduce to nothing the probative force of the criminative circumstance or circumstances in question,—viz. expatriation, exprovinciation, eloignment of property, or latency,—any one or more of them.

In case of real delinquency,—expatriation, exprovinciation, or eloignment of property, one or more of them, are apt to be accompanied with the circumstance of clandestinity; and (for the purpose of clandestinity) with mendacious extra-judicial discourse, having for its object the preventing or removing, on the part of any persons on whose part inculpative testimony is apprehended, all suspicion of the true cause.

That, by the concurrence of any such other criminative circumstances, the criminative force of the circumstances here in question cannot but receive considerable increase, is altogether obvious.

But it does not follow that, by the mere non-appearance of these confirmative circumstances, the criminative force of the circumstances here in question must be altogether destroyed; since it may happen, that—the change of place in question having been already determined upon, in pursuit of business, health, or pleasure—advantage may have been taken of the means thus afforded for the avoidance of justiciability, and, under favour of the promise of impunity thus entertained, the crime in question may have been committed.

As to tampering with prosecutors and other ministers of justice; to an act of this description, considered in the light of a criminative circumstance, the same suppositions apply in the character of infirmative counter-probabilities, as have been seen applying in the case where the persons thus practised upon are considered in the character of witnesses.

Expatriation, exprovinciation, and eloignment of property, involve in each instance the necessary supposition of intentional agency, positive or negative, but in general positive, on the part of the supposed delinquent himself. In latency, on the other hand, no such supposition is necessarily involved: what it designates is the effect—not any act by or by the help of which the effect is produced.

Latency—though it does not necessarily import, on the part of the supposed delinquent, any act done by him in the view of producing the effects designated by it—is, in respect of its criminative force, subject to the operation of the same counter-probabilities as those which apply to the other criminative circumstances which do, on his part, import action: since, like any of them, it may be the result of a man’s ordinary and blameless pursuits.

By the word latency, nothing more can be designated than the state of him in whose instance no means of communicating with him, either through the medium of his place of abode or otherwise, is known to those to whom such knowledge is necessary to enable them to insure his forthcomingness for the purpose of justiciability.

But in whose conduct is the cause of this want of knowledge to be found?

Till this point be settled, the condition denoted by the word latency can scarcely, with propriety, be placed upon the list of criminative circumstances.

The means of communicating with an individual (i. e. the means the best adapted to that purpose) can scarcely be brought under any general description: they will in every case be dependent on the individual circumstances in which, at the individual point of time, he happens to be placed. But it does not often happen that the means are deficient, or prove ineffectual, when, to the real desire, the power is added,—such power as it depends on the law to give.*

If it be really my wish to communicate with a man, to hear from him, and make him hear from me, what course do I take? The answer is almost too obvious to be called for: I make inquiry among his friends. Such is the course which everybody takes whose wish it is to succeed; and such is the course which it has been the care of English judges not to take.

Supposing powers adequate to the purpose given by the law, those powers accompanied with the correspondent obligations, and those obligations duly fulfilled; then it is, and not till then, that latency becomes presumptive evidence of latitancy, and through that of criminality: latitancy being understood to designate voluntary latency, having for its object the avoiding forthcomingness, for the purpose of avoiding justiciability.

Supposing the fact of latency established, and the fact of latitancy justly inferred from it; still, under the existing institutions, there exists a counter-probability by which its probative force in the character of a criminative circumstance is weakened. Fear, and fear of the law, would indeed be indicated; but the real evil apprehended at the hands of law might be, not the evil of punishment, inflicted under that name, on the score of criminality in any shape, but the evil of imprisonment, on the score of satisfaction for money due on an account not penal.

In so far as non-discharge of pecuniary debts, or other non-penal obligations, is considered as an offence, and non-surrender of a man’s person to imprisonment in satisfaction for the wrong done by the non-fulfilment of those obligations, is considered as an ulterior offence grounded on the former,—the engaging in a course of latitancy for the purpose of voiding such imprisonment may be considered as constituting the matter of the infirmative supposition above indicated under the title of design less culpable.

Suppose a prosecution actually commenced, and notice of its being so actually received by the supposed delinquent: on this supposition latency is actually converted into latitancy.

Notoriety of the obnoxious event, coupled with notoriety of popular suspicion fixing upon the supposed delinquent as having been concerned in the production of it;—these circumstances together will operate, of course, in the character of evidentiary facts, affording presumptive evidence of the information’s having reached his ears.

By habitual occupation, or by accident, he was in an itinerant state. He is illiterate, and the advertisements, if any have issued from the press, have not reached his eyes. The country is of the number of those which are not yet far enough advanced in the arts of life to render communications in that mode customary or easy. These may serve as examples of a variety of circumstances by which the probative force of simple latency, as evidentiary of latitancy, may be more or less impaired.

CHAPTER XIII.

OF THE SITUATION OF THE SUPPOSED DELINQUENT IN RESPECT OF MOTIVES, MEANS, DISPOSITION, CHARACTER, AND STATION IN LIFE, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUENCY.

§ 1.

Of the situation of the supposed delinquent in respect of motives and means, considered as probabilizing or disprobabilizing delinquency.

Between these several objects the connexion is so intimate, that they can scarcely be spoken of, any of them, without reference to the rest. But, with regard to delinquency, the indications they will be seen to afford, are, with reference to one another (though all material) very various, and even discordant; being not uniformly inculpative, but in some respects exculpative—in others directly inculpative,—in others again inculpative, but not so much directly as indirectly, by serving to weaken the force of an exculpative circumstance: and, as such, not admitting any infirmative supposition.

The psychological object designated by the word motive, is, as it were, the basis of all the rest.

The existence of a motive, by which the supposed delinquent might have been led (it is supposed) to the commission of the offence in question, is a fact which, in criminal cases more especially, is very frequently made the subject of proof. Is there any use in doing so? In certain cases, no: and in those, I believe, it never is done: in other cases, yes: and in these, I believe, at the suggestion of common sense, it commonly is done. In what cases, and in what sense of the word motive, it is worth while and practicable to have recourse to evidence or argument for this purpose, seems very generally understood in practice.

Motive is a term applied to the indiscriminate designation of divers objects, which require to be distinguished.

It is applied to designate any desire, when considered as the cause of action: call this the interior or internal motive.

It is applied to designate any corporeal thing, or mass of things, considered as the object of any such desire: call the object by which such desire is considered as excited, or capable of being excited, the exterior or external motive.

Thus, when a hungry man knocks down a baker, for the purpose of stealing a loaf of bread,—hunger is the internal motive of this criminal act, a loaf of bread the external.

A mischievous event being supposed to have been produced, and Titius suspected of having been concerned in the production of it,—What could have been his motive? says a question, the pertinency of which will never be matter of dispute.

The following seem to be the circumstances to which it owes its pertinence:—

Every act which, in the force of any one or more of the tutelary sanctions, finds a source of restraint—every penal, every disreputable, in a religious community every irreligious, act—is on that account rendered more or less improbable, by the consideration of the penal or other evil consequences attached to it. Unless this restrictive force finds an impulsive force, and that stronger than itself, in opposition to it, the culpable act is not merely improbable, but, psychologically speaking,*impossible.

To ask, What, in this case, could have been the motive? is to ask, not what could have been the interior, but what could have been the exterior motive, and that adequate in point of force to the production of such an effect. Not the interior motive; because, without any exception worth noting to the present purpose, all sorts of desires are common to all human beings: but what could have been the exterior motive? In the situation in which the supposed delinquent appears to have been placed, where is the object to be found, which could excite a desire strong enough to give birth (notwithstanding the opposition made by the combined force of the several tutelary sanctions) to an offence of the nature of that which he is suspected of?

To go about to prove on the part of the supposed delinquent the existence of a desire, a feeling, a passion, which presents itself as capable of accounting for the commission of the crime, would be an enterprise frequently impracticable, and always useless. No crime that has not some species of desire for its cause; and, with an exception or two not worth dwelling upon, no human bosom that is not the seat, constantly or occasionally, of every modification of desire.

It is not the mere existence of the desire—the propensity or the relish for this or that source of pleasure, the aversion for this or that source of pain. If it were,—by the same rule that the supposed delinquent is guilty, so is every other human creature. It is the existence of some exterior object, of a nature to call into action this or that desire or propensity, and to infuse into it a degree of force capable of surmounting the joint force of those tutelary motives, by the influence of which men in general are restrained from giving the reins to criminal desire.

Under the denomination of the motive must be comprised, for the present purpose, not only the internal desire, but the contemplation of the exterior event, or state of things, which the desire looks to for its gratification—looks to as the cause which will bring within a man’s reach the good (whatever it be) which is the object of the desire. The existence of the motive in the former sense, is the psychological fact—in the latter, the physical fact. It is in the latter sense, and that alone, that the existence of a motive either requires proof, or is susceptible of it. In this case, the internal motive to the act—the criminal act—is the expectation that the good in question will be brought into a man’s possession by such criminal act. The existence of Titius is sufficient proof of Titius’s being acted upon, and that during the whole course of his life, by the love, the desire, of the matter of wealth. The man who, desiring to live, has no desire for the matter of wealth, exists only in the fancy, or rather in the language, of shallow declaimers: to desire to live, is to desire to eat; and to desire to eat, is to desire to possess things eatable.

What, then, is the matter of fact proved, under the name of the existence of a motive? It is either the actual excitation of this or that desire by this or that assignable cause; or else the existence of this or that object, in a state in which it will naturally, in the breast of the party in question, have had the effect of exciting this or that desire. Man in general is susceptible of enmity—the desire of witnessing pain on the part of the individual who is the object of it. Man in general is susceptible of sexual desire. No human bosom that does not harbour within itself the love, the desire, of the matter of wealth. Thus much is what everybody is sufficiently persuaded of: thus much is what nobody ever thinks of proving. But Clodius had become the object of enmity to Milo: in the bosom of Tarquinius the appetite of sexual desire had attached itself upon the idea of Lucretia with particular force: upon the death of Amerinus, property to a considerable amount was secured to Hæres; of that state of things Hæres could not be unconscious, and had been heard to speak of it with impatience. These are facts which admit of proof, and may well appear to call for it. But, in the case of the happening of the correspondent obnoxious event in question, and a suspicion pointing to Milo, Tarquinius, or Hæres, respectively, as the criminal author of that event,—to prove the existence of these respective facts, is to prove, on the part of these persons respectively, the existence of the appropriate motive.

Thus it is that the consideration of any object pointed to as capable of having operated, in the case in question, with an adequate degree of seductive force, acts in relation to the supposed offence, not so much in the character of a directly probabilizing consideration, as in that of a consideration tending to repel the force of improbability (psychological improbability) acting in the character and direction of a disprobabilizing circumstance. On no occasion (says the defendant) does man ever act without a motive. Admitted (replies the prosecutor:) but here, then, was your motive: such or such may have been the desire excited in your breast: thus or thus was it, or might it have been, gratified by the event, of which, from all the evidence taken together, your act, your criminal act, is concluded to have been the cause. Against this disprobabilizing circumstance—psychological improbability,—the existence of a motive, if proved, may have considerable weight: it may even destroy the force of the disprobabilizing circumstance altogether. Considered in itself, the criminative force of the circumstance consisting in the motive (consisting in this, viz. that the situation in which the supposed delinquent is, is such as subjects him to the action of the motive in question,) amounts to nothing. In the natural course of things, where there is any property, every child has something to gain by the death of a parent. But, upon the death of a father, no one is ever led by any such consideration to look to an act of parricide, in the first instance, as the most probable cause of the death.

Not being properly a criminative circumstance, no counter-probabilities seem applicable to it in the character of infirmative considerations.

The following cases may serve as instances where, in the way above explained, the motive (viz. the exterior motive) became, and with propriety, an object of consideration, in the character of a criminative circumstance.

Anno 1781.—Donnellan’s case at Warwick assizes. Offence, murder of his wife’s brother. Motive, prospect of succession to his property.

Anno 1803.—Fern’s case at Surrey assizes. Offence, incendiarism. Motive, profit by over-insurance.

Anno 1803.—Robert Wilson’s case at Edinburgh. Offence, murder of his wife. Motive, paving the way to a more agreeable connexion with another woman.

Anno 1753.—Mary Blandy’s case at the Oxford assizes. Offence, the murder of her father by a long course of poison. The property of the father was considerable: she was an only child; it would fall to her of course. But, where parricide is the offence, is it in the nature of money to constitute a seducing motive? At that rate, parricide, instead of being as rare as it is horrible, would be among the most frequent of offences. She was enamoured of the wretched Cranston, her seducer, and the existence of the fondest of parents presented itself as an obstacle to an union, which, had she known all, she would have known could not be legalized. What the force of steam is in the physical world, the force of love is in the psychological—capable, when under pressure, of opposing the strongest force. The existence of such pressure is among the most common of all family incidents; the attempt to surmount it by such flagitious means, happily among the most rare. But to bring this motive to view required no separate evidence. The same evidence which showed from what source she had received the poison, showed by what motive she had been led to administer it.

Theophrastus is accused of theft. Fortune, opulent; reputation, unspotted; disposition, generous. The object of small value. Delinquency assumed; what could have been his motive? It was a black-letter book; a cockleshell; a butterfly. Theophrastus was a collector.

Means—i. e. means of producing the mischievous effect in question—seem to come under consideration to much the same purpose as motives. The belief of the existence of whatever means are regarded as necessary to the production of the effect in question, being a condition precedent to the endeavour,—means may in this case be considered as coming under the denomination of motives: power being as necessary an article as desire, in the assemblage of productive causes.

By opportunity seems to be understood an assemblage of such articles, in the composition of the aggregate mass of means, as possess not a permanent, but only a transient existence.

§ 2.

Of the situation of the supposed delinquent in respect of disposition and character, considered as probabilizing or disprobabilizing delinquency.

Disposition is produced by motives.

A man is said to be of such or such a disposition, according as it is to the influence of the motives that belong to this or that class that he is considered as being more or less in subjection: reference being made to the degree of influence supposed to be exercised by these same motives over the minds of the generality of the class of persons with whose conduct his conduct is compared. If the motives of the self-regarding class are considered as predominant, a selfish disposition is ascribed to him: if motives of the social class, a disposition of the social or benevolent cast: if of the dissocial kind, a disposition of the dissocial or malevolent cast.*

The effect of disposition, supposing it in proof, may be either inculpative or exculpative. So far as it is of the virtuous cast, and thence the tendency of its operation exculpative, important as the consideration is, it belongs not to this place. The effect and use of it is, to be opposed to inculpative evidence of all sorts, and, on the ground of a modification of improbability (viz. psychological improbability,) to tend to discredit direct and positive evidence; or, in the character of an infirmative consideration, to diminish the probative force of the inferences drawn from the circumstantial part of the evidence.

So far as the disposition indicated is of the vicious cast, exhibiting a more than ordinary degree of force on the part either of the self-regarding or dissocial motives,—it will generally, though not uniformly, afford inferences tending to probabilize the delinquency of the supposed delinquent, in respect of the offence in question, whatever it may be. In general, however, it admits not of proof on purpose. To take disposition for the subject of express inquiry, would be to try one cause, or perhaps a swarm of causes, under the name and on the occasion of another.

But, not unfrequently, indication of disposition, depravity of disposition, comes in of course, along with other and more directly apposite evidence; and when it does, it is naturally impressive; and, if sufficiently proved, it is scarcely to be wished that it should be otherwise than impressive.

As to infirmative suppositions, they are, here also, plainly out of the question: reasons the same as above.

Character is sometimes used as synonymous to disposition itself; but, more commonly, for the opinion supposed to be entertained concerning the disposition of the individual in question, by such persons as have had more or less opportunity of becoming acquainted with the indications given of it.†

Character is accordingly, on occasions of this sort, the word almost exclusively in use: disposition very seldom: the distinction is scarcely an object of notice.

For the consideration of character (so far as there is any difference) there is evidently still less room, in general, than for that of disposition, for the purpose of probabilizing the act of delinquency in question, on the part of the supposed delinquent.

Cases, however, are not altogether wanting, in which not only the question of dispesition, as indicated by this or that article in the general mass of evidence collected for other purposes, but even the question of character, as distinguished from disposition, may, in a criminative view, present a claim to notice.

Offences having ill-will for their motive—having ill-will for their psychological cause,—seem to be those, in respect of which, in a criminative view, the question of character is most apt to be material. In the case of an offence of this description, take the following examples:—

1. Offence, personal injury; the author uncertain: the character of the supposed delinquent, is it such as to point to him rather than to others?

2. Quarrel mutual; the supposed delinquent a party: the transaction more or less involved in obscurity:—considering the adverse party on the one hand, and the supposed delinquent on the other,—which, in respect of his character, seems most likely to have been in the wrong, or likely to have been most in the wrong?

§ 3.

Difficulties attendant on the admission of character evidence.

In an abstract point of view, it appears obvious and indisputable, that, on the question between delinquency and non-delinquency, considerable light may be expected to be thrown by the consideration of previous character. But, when the occasion calls for applying this general notion to practice, difficulties of no small moment will be seen to arise: some of them such as seem scarce capable of receiving solution but in the Gordian style.

1. Character favourable: tendency of the evidence, exculpative: fact indicated, non-delinquency. Bond of connexion between the evidentiary fact and the fact indicated, improbability of the psychological kind: improbability that a man bearing such a character should have soiled it by such an offence: that a man in whose instance the preponderance of the social motives over the dissocial and self-regarding has been so decided and confirmed, should, in the individual instance in question, have given way to the impulse of the seductive motives.

Whether the character be general or special, in this case the danger of prejudice to justice does not present itself as by any means considerable enough to indicate the propriety of excluding the evidence in any case. 1. Circumstantial evidence so loosely connected with the fact in dispute, is not likely to prevail against a mass of appropriate evidence, whether direct or circumstantial, or both together, to an amount sufficient for conviction. 2. In the case of general bad disposition, and its natural consequence, bad character, it will in general not be easy to obtain testimonials of good character from persons possessing a character of sufficient apparent trustworthiness to present a prospect of material probative force.

Nor would it be safe to put an exclusion upon evidence of this nature: inasmuch as, in case of an inculpative conspiracy, or even an untoward combination of circumstances, it may be the only sort of evidence by which it may be in the power of the purest and most exalted probity to defend itself. In all such cases, general character, it being on the favourable side, is pertinent: nor does it lie open to the objection which we shall see applying to it if employed for the purpose of painting character on the unfavourable side.

What seems the only objection, then, in this case, is referable to the head of vexation: vexation to the judge (which is vexation to the public through the medium of the judge,) by the time that may come to have been consumed in the exhibition of a species of evidence of which the probative force is so inconsiderable and inconclusive: vexation again to the judge, by the quantity of his power of attention that may come to have been expended upon a species of evidence comparatively irrelevant—a species of vexation which, when screwed up to a certain height, becomes dangerous even to the direct justice of the cause.

To the species of vexation attaching itself (as above) to the station of the judge, may be to be added in some cases another lot of vexation attaching itself to the station of witness; viz. to the witnesses from whom the testimony in question is to be extracted. On the other hand, vexation, in this instance, supposes unwillingness on the part of the witness, power to compel his testimony notwithstanding, and that power exercised. A witness who is on such an occasion unwilling to depose in a man’s favour, is not likely (it may be said) to be called upon by him for that purpose: hostility rather than sympathy is the affection in such a case to be expected. But it does not follow by any means, that because a man is unwilling to take upon him the loss of time, and perhaps expense, imposed upon him by his coming forward in the capacity of a witness, his reluctance and resentment should rise to such a height as to engage him to give an unfavourable testimony, in contradiction to his own conscience.

2. The case where the party calling for the evidence of character (the defendant’s character) is the demandant—the prosecutor,—the expected tendency of it consequently unfavourable—presents much greater difficulties.

1. Is it conceived in general terms?—no specification of facts, no instances of particular misconduct on any individual occasion specified?—A wide, and at the same time a safe, door is opened to calumny. The calumny is in its nature unpunishable. By the supposition, no particular fact is or can be specified, nothing which, for the purpose either of punishment or compensation, is capable of being disproved. What is delivered is mere matter of opinion; and that an opinion which, by the power of the law itself, a man is compelled to give.

2. Is it conceived in particular terms? particular facts stated?—Still either the door is left open to calumny, or fresh difficulties present themselves. Neither on this nor on any other occasion ought a man’s reputation to be liable to be destroyed or impaired by mere hearsay evidence. If a punishable or otherwise disreputable act is to be charged upon a man, on this occasion as on others, the charge ought to be made good by a satisfactory mass of evidence. On this as on any other occasion, he ought to be heard in his defence, with liberty to contest the charge, and produce exculpative evidence of all sorts, as in other cases. Under the name of giving evidence of character, what then does the operation here in question amount to? It is trying one cause for the purpose of another cause. Say rather, trying an indefinite number of causes; for it is not a single swallow that makes a summer—a single act a habit, a disposition, a sufficient ground for character, and that unfavourable. Causes thus in any number are tried—one cause, at least, is tried—as it were in the belly of another.

Considered in itself, the trial of any or every such incidental cause cannot, with any consistency, he regarded in the light of an inconvenience. Either the law is a bad one, and as such ought to be repealed, or obedience to it ought to be enforced. Either the law itself is a grievance, or the non-execution of it (bating the particular cases calling for pardon) is a grievance. Far from regret, it should be matter of satisfaction, that, by so cheap and unexceptionable a method, delinquency is brought to light.

But it is by the decision given in these incidental causes, that the decision to be given in the principal cause is to be influenced. On this supposition, perhaps the progress, at any rate the conclusion, of the principal cause, is kept back till after the conclusion of each such incidental cause.

Such are the difficulties, in the case where the imputation clothes itself in specific forms. Where, as above, it confines itself to generals, the difficulty, the ulterior difficulty, that remains to be brought to view, is different, but not less. Those persons on whose opinion or pretended opinion, without any check upon their mendacity, the fate of the defendant is more or less to depend, who are they? What sort of a character is theirs? Character in this case—the case of a witness, a mere witness—presents (it must be allowed,) or at least ought to present a different idea in this instance from what it did in the other, in that of the defendant. In the instance of the defendant,—the character, the disposition in question (it is, by the supposition, of the unfavourable cast,) admits of any modification, according to the nature of the imputed offence: in the case of the witness, it is confined to mendacity; or, if it extend to any other vicious propensity, it is only in so far as a propensity to mendacity may be inferred from it.

But if the character of any one witness ought to be suffered to be put in issue, so, by the same reason, ought that of every other. This being admitted, you put it in the power of the party—of that one of the parties whose interest it is to defeat law and justice—to bring upon the carpet a chain of character evidence without end;—an arithmetical repetend, or, by accident, even an arithmetical circulate.

§ 4.

Rules tending to the solution of the above difficulties.

In judicature, in legislation, difficulties (how great soever) should never be dissembled. From falsehood, from concealment, from imposture in any shape, justice never profits, never can fail of suffering, upon the whole.

The complete removal of the eventual inconveniences and correspondent difficulties being hopeless, all that remains is to present such considerations and expedients as appear calculated to reduce the embarrassment to its minimum.

On the one hand, to compel the admission of this sort of evidence in all cases, on both sides, and of both aspects, favourable and unfavourable—on the other hand, to compel the refusal of it in any case by an unbending rule,—are two extremes, both of which, though not in equal degree, threaten to be prejudicial to the interests of justice. It seems to be one of those cases in which a considerable latitude ought to be given to the discretion of the judge. To abuse it, will not, indeed, be out of his power; but neither is the danger of abuse so great, but that, if he is not fit to be trusted with this power, neither is he fit to be trusted with the other powers attached to his office.

If there were a case in which it would be proper to render the admission of evidence of this species compulsory, it would be the case where, the character in question being that of the defendant, the evidence is called for at his instance, and the punishment attached to the offence is loss of life. Why? Because, in case of an improper refusal, punishment undue, and at the same time irreparable, may be the consequence. But what is the measure indicated by this consideration? Not the making the admission of this species compulsory, even in this case, but the forbearing to employ a mode of punishment, which in this, as well as every other point of view, is adverse to the interests of justice—favourable to them in none.

The case in which the sort of circumstantial evidence afforded by moral character is of greatest importance, is that in which, the station of the party and the witness being combined in one, the cause affords no other evidence on that side.

The demand for this species of evidence is of course doubled, in the case where the same combination of stations takes place on both sides, and on each side is accompanied with the same absence of all other and less suspicious evidence.

In cases not penal, it will constitute a natural safeguard against perjury on the part of a plaintiff deposing in support of his own demand; supposing an habitual course of perjury to be capable of being otherwise engaged in as a source of livelihood. The taint which a few steps in this career would have the effect of imprinting on a man’s reputation, would not fail to oppose a powerful obstacle to his persevering in it with any adequate prospect of success.

The following seem to be the considerations by which the admission or rejection of this species of evidence ought to be determined:

1. The importance of the cause to the demandant’s side, in respect of the mischief of impunity.

2. The importance of the cause to the defendant’s side, in respect of the mischief of undue punishment.

3. The importance of the matter in dispute to each party respectively, in the case of a non-penal cause.

4. The delay threatened by the production of the evidence applied for.

5. The vexation apprehended to third persons, from the production (supposing it compulsory) of the evidence applied for.

6. The doubtfulness of the case, as it stands on the ground of the other more appropriate evidence.

The following rules and observations seem calculated to aid the judge in determining on the admission or rejection of this species of evidence:—

1. No evidence of character, good or bad—no speaking to character, favourably or unfavourably (i. e. at the instance either of the defendant or the demandant)—ought to be admitted, without power to the judge (if he thinks fit) to allow of time for inquiry into the character of the character-givers themselves. Why? For the same reason as in case of alibi evidence.* But the force of the reasons in this case are much less conclusive, the evidence of badness of character being in its nature so much less precise and satisfactory than the evidence of the existence or non-existence of such or such a person, at such or such a time, in such or such a place.

2. Evidence of bad character in crimination of the defendant, ought not to be admitted, unless in so far as it results from evidence admissible on other grounds; or unless, the fact of the offence being clear, the question is, between two persons suspected, which of them was the author? And even in these cases (that the quantity of vexation and delay may not be altogether boundless,) power should be left to the judge to limit the quantity or quality of the evidence, the number and choice of the witnesses, in declared consideration of the apprehended magnitude of these respective inconveniences.

3. If, at the instance of the defendant, evidence in favour of his character is admitted; so, at the instance of the other side, should counter-evidence operating in disfavour of his character be admitted, and time accordingly be allowed for it.†

4. Supposing the extraction of self-criminative evidence from the mouth of the defendant admitted, examination to this point will be as unexceptionable as to any other; and, so far as it extends, the vexation will be kept from reaching third persons; and the additional delay will be less, in the case of evidence extracted from this source, than of evidence extracted from any other.

5. Two considerations operate in diminution of the inconvenience from character-evidence at the instance, and consequently in favour, of a defendant. If the characters of his witnesses are obscure and unknown, the danger of their obtaining undue credence is but little; if suspected, still less:—if known, so as to present a claim to confidence, the inference thence deduced, though not good as to past innocence in respect of the individual offence charged, may be good in respect of the probability of future reformation, in consequence of the impression made by the trial and its attendant terrors.

6. But if, in consideration rather of the prospect of reformation than of the probability of innocence, acquittal be grounded on evidence of preceding good character, as above,—it ought not to extend beyond the amount of punishment under the name of punishment: it ought not to preclude the party injured from satisfaction at the expense of the defendant, if the force of the evidence, upon the whole, would be sufficient to entitle him to a decision in his favour, supposing the case a purely non-penal case.

7. If the appropriate evidence in the cause leans in favour of the defendant, the demand for this inappropriate evidence has no place.

8. Supposing a professional judge or judges, with a jury of occasional judges,—power might be given to the judge to suspend the admission of this character-evidence, so as not to admit it but in case of conviction, or indecision, on the ground of the appropriate evidence. Suppose a professional judge or judges, acting without a jury,—the demand for the conditional decision, as above, has no place. He simply suspends his definitive decision till the evidence of character has been got in.

Character-evidence has this in common with alibi evidence, that it is with the utmost facility and clearness distinguishable from every other species of evidence. What passes in relation to it is therefore, with proportionable facility, susceptible of registration:

1. Whose character it is—the demandant’s or the defendant’s.

2. At whose instance called for—that of the demandant, the defendant, or the judge.

3. When called for by demandant or defendant—whether ordered accordingly, or refused, by the judge.

4. If refused, on what ground:—whether delay, and to whose prejudice—that of demandant or defendant; or vexation, and to whom—whether, 1. to the court and the public in respect of time consumed, or 2. to the witness or witnesses, or 3. to the party repugnant, in respect of the expense.

5. If exhibited, whether prevalent or inoperative; i. e. whether the decision was in favour of that side or of the opposite.

6. Length of time consumed by the evidence of this description, in court, by the exhibition of it,—out of court, in waiting for it: ratio of this length of time to that of the length of time consumed in like manner upon the other evidence, the appropriate evidence in the cause.

7. Names, description, and number of the witnesses of whose testimony this evidence was composed: ratio of this number to that of the whole number of the witnesses whose testimony was exhibited in the course of the cause.

Such is the information by which the advantages and disadvantages attending the employment of this species of evidence would be placed in a distinct and satisfactory point of view. In this place, the statement of the heads occupies space; but, in each cause, the space as well as time consumed by the entry of the matters coming under these heads would be trifling indeed in comparison with the use.

Hitherto, the question regarding the admissibility of character-evidence has been considered only so far as regards the character of the defendant. But there still remains another question:—how far shall it be allowable to produce evidence for or against the character of a witness?

In this case, an imputation conveyed in general terms may, on certain conditions, without any preponderant inconvenience, be admitted. What then are these conditions?

1. In the first place, the imputation, if general, should be confined to that part of a man’s character which respects veracity. The witness, among his acquaintance, is regarded as an habitual liar. A habit of this sort may be ascribed to a man without specific proof: Why? Because a habit of this sort may be the result of a multitude of acts, none of them, perhaps, punishable in course of law, and too numerous to be proved.

2. But in this case it should be allowable for the party by whom the witness is produced, to call upon the impugning witness (viz. upon his cross-examination) to declare, if it be in his power, the particular instances in which this alleged disposition to mendacity became apparent.

3. In the next place, an imputation of this sort ought not to be admitted, unless it has been previously ascertained that there are three witnesses, or two at least, to maintain it. The considerations that suggest this limitation are as follows:—

Of evidence of this sort, if false, the falsity is not, in its nature, capable of being proved for the purpose of punishment. In case of that sort and degree of improbity on the part of the party in question, which prompts to subornation, this is of that sort of false evidence which is procurable with least risk, and therefore with least difficulty.

If an imputation of this sort has really attached upon a man’s character, it can scarce happen but that more witnesses than one may be found to speak to it. There seems, therefore, little danger that the condition in question, if annexed, should operate in exclusion of this species of evidence.

The objection above mentioned as presenting itself on the ground of facility of subornation, will thus be proportionably reduced in force. It is not only twice as difficult—indeed (as on close examination it would appear) more than twice as difficult—to suborn two false witnesses, as one; but, in case of their being procured, the chance of detecting the falsehood is much increased, in respect of the probability of disagreement and mutual treachery, as between individuals thus linked together by community in guilt.

Supposing the general habit of mendacity (viz. extrajudicial mendacity) ever so clearly established, the judge should not regard the inference from such general mendacity to mendacity in the individual case in question (viz. a judicial case,) as being by any means conclusive. On the ordinary occasions of life, a man has no such cogent motives to confine him to the path of truth, no such sanctions to bind him to it, as in this extraordinary one. Without a motive of some sort or other, a man will not encounter any risk; without a motive, and a motive of very considerable force, a man will not subject himself to such serious risks.

So far as specific acts are concerned, there are but two sorts of crime that present themselves as affording any inferences worth regarding in this view. These are—

1. Crimes of mendacity. At the head of these stands actual perjury: underneath, at a considerable distance, stand other crimes of extra-judicial mendacity, such as obtaining valuable things or services by false assertions, which, though made in direct terms, are made without oath: below these again, crimes in which the assertion is indirect and inexplicit, as in case of forgery at large, and those forgeries which have coin or money of any kind for their subject-matter.

2. The other class is composed of such other offences of the predatory cast (such as theft, highway robbery, and housebreaking,) as suppose what may be called a general prostration of character; though here, too, the inference from such an act will be very inconclusive, unless it appear connected with a habit of the same kind. But, in the case of all offences in the description of which mendacity is not involved, the inference will stand lower in the scale of strength by a very determinate and perceptible degree.

As to offences which neither are indicative of any such prostration of character, nor involve any breach of the duty of veracity—in the case of any such offences, the inference may be said to fail altogether. Offences produced by the irascible passions, and offences produced by the sexual appetite, may serve for examples.

In the case of a witness, evidence of good character can scarcely ever be admissible with propriety in the first instance; for no imputation is cast upon a man’s character in this case, as there is in that of the defendant: and, till a ground for a contrary opinion presents itself, the character of the witness, like that of every other man, ought to be presumed a good one. The endeavour to produce evidence of this sort would merely have the effect of producing useless delay, vexation, and expense.

But, in this same case of a witness, if evidence charging him with bad character has been produced on the adverse side, there seems no more reason for excluding evidence of good character in behalf of the same person, than has been seen already in the case of a defendant. On various scores, evidence of good character is liable to much less objection than evidence of bad character. When no evidence of bad character had been adduced, the demand for similar evidence of good character did not exist, but the demand now does exist, the case being reversed.

§ 5.

Of the station of the supposed delinquent, considered as probabilizing or disprobabilizing delinquency.

Station may be considered as indicative of the disposition, and thence of the character, of the class: viz. of the class to which the individual in question belongs: of the class composed of the individuals by whom the station in question is occupied.

To an inculpative purpose, this circumstance can scarcely be considered as having any application. In every political community, the lowest station is that which is occupied by the greatest number of the members.

It is only in the character of an exculpative circumstance, viz. on the ground of improbability—psychological improbability, as above,—that this circumstance is apt to operate with any considerable degree of probative force; and, thus applied, the force (i. e. the disprobative force in respect of the probability of the offence in question on the part of the supposed delinquent in question) with which it operates, is apt to be very considerable.*

The principal application of this species of evidence is that which obtains in a cause (especially a penal cause) where the matter in question is an article of property: more especially in cases where (as in ordinary thefts) the value of it is inconsiderable, in respect of the habitual pecuniary circumstances of the defendant, as indicated by the species of circumstantial evidence in question, viz. his station in life. A man in a station of life thus elevated, is it likely that his necessities should be so urgent as to drive him into a channel of supply at once so scanty and so hazardous?

Compared with moral character, the presumption afforded by this circumstance will, in general, be much more persuasive. Why? Because the matter of fact will, in general, be so much the more notorious, so much the less liable to be misrepresented by the force of bias. The presumptive evidence of habitual opulence afforded by office, visible property, education, habitual expenditure, will, in general, be much more incontestable than any which can be afforded of moral character by general expressions.

Singly (much more if in conjunction,) a certain degree of opulence and rank in life are enough to render scarcely credible on any evidence, a fact for which, in another station in respect of rank and opulence, slight evidence would be sufficient to gain credence. In any of the civilized nations of Europe, what evidence would be sufficient to convict a prince of the blood, or a minister of state, of having picked a man’s pocket of a dirty handkerchief, in a street, or in going into a playhouse?

One particular case there is, in which the force of the presumption derived from this source is not quite so great as, on general considerations, it might appear. This is the case of thefts committed on articles possessing a value of affection; and, in particular, thefts committed by amateurs on fancy articles—rare books, rare pictures, rare plants, shells, minerals, rare anything. A man who might be trusted with safety with a heap of untold gold, might not be capable of resisting the temptation presented by some choice desideratum, which, if to be sold, might be to be purchased for a few shillings.

The warning afforded by this observation is happily of no great use in practice. Thefts of special concupiscence are the offences of the rich: thefts of general concupiscence are the offences of the poor. Thefts of the former description are apt to experience a degree of indulgence, in which the principle of sympathy and antipathy will naturally find much to reprobate, but to which the principle of utility is by no means equally severe. The alarm in this case is extremely narrow: few but amateurs have anything to fear from the thefts of amateurs; and the mischief which the negligence of an amateur has to fear from the concupiscence of another is confined to simple theft: to the more formidable mischiefs of robbery, house-breaking, and murder, the apprehension does not extend. Hence it is that thefts of this description, in the few instances in which they are detected, experience commonly a degree of indulgence such as would not be extended to those which have the plea of necessity, or at least of indigence, for their excuse. Hence too it is that the indulgence extended to them is not productive of any such general mischief to society, as would be the result of the like indulgence, if extended with equal frequency to promiscuous thefts.

In some cases, the question in regard to opulence and rank in life enters into the essence of the cause: the probability and improbability of the main fact in dispute is in a manner governed by them; and in these cases, whether character be or be not expressly held up to view, it is in a manner impossible to it not to act, with more or less force, upon the mind of the judge.

Take the famous case of the Comte de Morangiès, in Linguet’s Plaidoyers. The Count—having occasion to borrow money to the amount of 300,000 livres—with evident, though not unusual imprudence, trusts an obscure female money-broker, and through her means a pretended money-lender, with bills of his, payable to order, to that amount and upwards. Of this large sum no more than 1,200 livres were really delivered. The pretended lender proves the delivery of the whole, by the testimony of three pretended eye-witnesses. The whole cause of the unfortunate man of quality rests upon circumstantial evidence: upon improbability, partly of the physical,* partly of the psychological kind. Station, in respect of rank and opulence, on both sides, but more especially (in respect of opulence) on the part of the pretended lender, became a necessary subject of inquiry. Traced out from the time of the pretended acquisition of this large fortune to the time of the disposition thus pretended to have been made of it, the whole history of her life and conversation concurred in representing the fact of her having possessed it, or anything like it, as scarce credible upon any testimony—absolutely incredible upon the strength of the testimony produced.

CHAPTER XIV.

POSTERIORA PRIORUM—PRIORA POSTERIORUM. FACT INDICATED, A PRIOR EVENT; EVIDENTIARY FACT, A POSTERIOR EVENT IN THE SAME SERIES: AND E CONVERSO.

These two topics are scarcely susceptible of a separate consideration: no two can be more intimately connected.

In any series of facts (the existence of acts or other events—the existence of works, physical or pyschological, the fruit of such acts or events,) following each other in the character of so many successive means leading to a common end, of so many successive effects originating in a common cause,—the existence of a posterior article will naturally serve as evidence of the existence of each prior article: and è converso, the existence of a prior article will operate, though commonly with much less force, in the character of evidence of the existence of each posterior article.

With a view to cases of a penal nature, these topics have been already handled, under a variety of modifications: handled, not under their own names, but under the names of their respective modifications. Fear (for example,) fear of punishment, being the natural consequence of delinquency, operates as evidence of it. Preparations for a crime, being among the causes of the pernicious event, operate as evidence, serving to fix upon the person who is ascertained to have been engaged in them the authorship of that event.

The sort of facts that remain for consideration on the present occasion, are those that are liable to come in question in cases of a non-penal nature. Examples:—

1. A voyage or journey of considerable length. Evidentiary fact, the arrival of the traveller at the terminus ad quem: facts indicated, his appearance and transactions at the several intermediate stages. E converso; evidentiary facts, his appearance and transactions at any of the intermediate stages, coupled with evidence of his intentions of conveying himself to the terminus ad quem; fact indicated, his arrival there.

2. General settlement of a man’s property, by deed inter vivos, or testament. Evidentiary fact, the execution of the appropriate written instrument: fact indicated, the existence of transactions and scripts (letters, papers of instruction, &c.,) preparatory to that event. E converso; evidentiary fact, the existence of a transaction or script of a nature preparatory to such event: fact indicated, the ultimate event itself.

3. Entrance into a new condition in life: e. g. marriage. Evidentiary fact, the celebration of the marriage ceremony: facts indicated, preparatory transactions and scripts; tete à téte conversations; overtures to parents or guardians; love-letters; bespeaking of the ring and wedding clothes; housekeeping preparations; publication of banns, or obtainment of licence, &c. E converso; evidentiary fact, any one or more of these preparatory incidents: fact evidenced, the performance of the ceremony.

4. Engaging in a profit-seeking occupation: engaging in a partnership. The preparatory steps will be infinitely diversifiable, according to the particular nature of the occupation in each case. To pursue the exemplification further, seems unnecessary.

5. Litigation. Evidentiary fact, the ultimate decision: or, in cases requiring active execution, the extra-judicial transactions designated in each particular instance by that word: facts indicated, the several preparatory transactions and scripts of procedure, according to the nature of the case. E converso; evidentiary fact, the existence of any such preparatory transaction or script: fact evidenced, ultimate decision of the cause, in favour of the demandant or the defendant, according to the particular nature of such cause.

From this general view of the subject, several observations may be deduced—observations, some, if not all, of which, may appear too obvious to be worth mentioning: but there is no observation so obvious as not sometimes to be overlooked:—

1. In every such natural series, facts posterior and prior are naturally evidentiary of each other.

2. The probative force of posterior events in regard to prior ones, is naturally much stronger than that of prior events with regard to posterior ones.

In all human affairs, execution is better evidence of design, than design of execution. Why? Because human designs are so often frustrated.

3. When the posterior event indicated by a prior event did not take place, it will in most instances happen that the failure will have been proved by some notorious or easily-proved facts, by which, in this case, the probative force of the prior event with reference to the posterior will have been entirely destroyed. But sometimes it will happen, especially in the transactions of a remote period, that no completely satisfactory evidence is forthcoming, either of the failure of the design or of the consummation of it. As far as this is the case, the modification of circumstantial evidence, here called for shortness priora posteriorum, may beyond question have its use.

A state of things may be supposed, in which the probative force of this species of evidence might be estimated, or rather observed, with the utmost nicety. This is where, on the one hand, the instances in which the design has proceeded to the stage of consummation—on the other hand the instances in which the execution has stopped short at any of the several preliminary stages, have been made the subject of official or other trustworthy registration.

The case thus put is not absolutely out of the reach of practice. In different degrees it has been exemplified in different countries and different courts in the practice of judicial registration. It might be, and generally speaking ought to be, exemplified in the most perfect degree in the practice of all such courts.

When the ends of justice are taken for the ends of judicature, a system of forensic book-keeping will be employed, by which it will appear in what degree fulfilment is given to those salutary ends. It will be apparent, in each individual cause, at what price, in the shape of expense, vexation, and delay, justice (or what is given for justice) is purchased: and likewise what proportion of that price is the result of natural and unavoidable—what of factitious, and therefore avoidable, causes. In that state of judicial book-keeping, the mode and period of termination will in each cause appear of course.

Under such a system of book-keeping, the termination of each cause being manifested by direct evidence, there will not (it may be said) be any demand for any such circumstantial evidence as is here in view. The facts of all stages being on record, posterior ones as well as prior ones, there will be no use in any such operation as that of inferring the existence of either from that of the other. But, in regard to any given individual cause, suppose the memorials of a posterior transaction or script to be unforthcoming—destroyed, obliterated, lost, or inaccessible. In this case, any prior article of the same series may afford inferences, and have its use.

In another way, a rational system of judicial book-keeping might have a much more extensive use, and still in the character of a source of this modification, of circumstantial evidence. The application given to such a register might not only be prospective but retrospective. The negligence of preceding legislators might in some measure be repaired by the diligence of succeeding ones. Two equal spaces of time are taken—say of ten years each: the posterior, a period of perfect registration, as above; the prior, a period when registration was more or less imperfect, or altogether deficient. In the period of imperfect registration, a certain cause, it is known, proceeded to a certain stage: what is the probability of its having arrived at the ultimate stage? and, in that case, of its having terminated in favour of the demandant rather than of the defendant? Turn to the accounts of the period of good book-keeping, the probability of the two events will be respectively found in numbers.

CHAPTER XV.

ON THE PROBATIVE FORCE OF CIRCUMSTANTIAL EVIDENCE.

§ 1.

What ought to be done, and what avoided, in estimating the probative force of circumstantial evidence?

On this as on every other part of the field of evidence, rules capable of rendering right decisions secure, are what the nature of things denies. To the establishment of rules by which misdecision is rendered more probable than it would otherwise he, the nature of man is prone. To put the legislator and the judge upon their guard against such rashness, is all that the industry of the free inquirer can do in favour of the ends of justice.

Probative force of the evidentiary fact in question, in relation to the principal fact in question,—and closeness of connexion between such evidentiary fact and such principal fact,—are interconvertible expressions.

Probative force, and closeness of connexion as between fact and fact, having no more than an apparent and relative existence (relative, viz. relation being had to him by whom the facts are contemplated in this view;) nothing more can be truly indicated by them than strength of persuasion on his part—strength of persuasion, applied to evidence of the description in question,—viz. to circumstantial evidence.

On each individual occasion, the degree of strength at which the persuasion stands would be capable of being expressed by numbers, in the same way as degrees of probability are expressed by mathematicians, viz. by the ratio of one number to another. But the matter of the case admits not of any such precision as that which would be given by employing different ratios (i. e. different pairs of numbers) as expressive of so many uniform degrees of probative force, belonging one of them to one sort of circumstantial evidence, another to another.*

Of an evidentiary fact of the same description, described in and by any combination whatsoever of general words, the probative force will be found different in different individual cases. It may be in any degree slight; and it may be strong in almost any degree short of conclusive.

The use of infirmative suppositions is to afford a test of conclusiveness, and, in some sort, of probative force.

To judge whether, with relation to a given principal fact, a given evidentiary fact be conclusive or no, look out on all sides for all such infirmative suppositions as can be found.

If, with relation to a given fact proposed in the character of a principal fact, another fact given in the character of an evidentiary fact appear to you as operating in that character—operating in any degree, howsoever slight,—look round to see if no supposition operating upon its probative force in the character of an infirmative supposition be to be found—no fact which in its nature is not impossible, and with which (supposing it, on the occasion in question, realized) the existence of the principal fact in question would be incompatible; or in virtue of which the existence of the principal fact would be seen to be less probable. If any such infirmative supposition be found, the probative force of the evidentiary fact is not so great as to be conclusive.

But if, after your utmost endeavours, you find yourself unable to discern any such infirmative supposition,—then, in your own particular instance (relation had to the state of your own persuasion,) the probative force may be conclusive.

Supposing one evidentiary fact, and only one infirmative supposition applying to it: then, to estimate (i. e. expression numbers) the quantity of probative force remaining to the evidentiary fact,—deduct from the ratio expressive of practical certainty, the ratio expressive of the probability of the fact the existence of which is by the infirmative supposition supposed: the remainder will be the nett probative force.

To one and the same evidentiary fact, suppose a number of different infirmative suppositions applicable; and, of each of the several supposed facts, suppose the probability the same; the sum of their infirmative forces will be as their number.

In an evidentiary chain composed of a number of links, of which the first is a fact proved by direct evidence, the last the principal fact in question, and between them one supposed fact at least, of which the fact proved is regarded as evidentiary, and which itself is regarded as evidentiary of the principal fact; the greater the number of such intermediate links, the less is the probative force of the evidentiary fact proved, with relation to the principal fact. Why? Because, of the several facts thus evidentiary one of another in a chain, each is hable to have its infirmative counter-probabilities, by the disprobative force of each of which, as above, its nett probative force is liable to be diminished.

Accordingly, on the occasion of each such chain, let it be your care to see that no intermediate link or links, with their respectively applicable infirmative suppositions, be omitted.

From the probative force of each evidentiary fact applying to the same principal fact, that of every other will receive an increase.

But no reason can be given for concluding that the sum of the probative force of such evidentiary facts will be uniformly as the number of the facts themselves.

On looking over, for example, a table or list of evidentiary facts, having for their common principal fact delinquency,—it will be found that, in more instances than one, two evidentiary facts, of each of which taken by itself the probative force would be scarcely worth regarding, shall, when taken together, be found to operate with a very considerable degree of probative force: so considerable as to be, if unopposed by any counter-evidence on the other side, conclusive. Or if two, thus unopposed, be not sufficient, three may; and so on.*

Of facts of the psychological class, there is no one species of evidentiary fact, the probative force of which can with propriety be considered as being in all cases conclusive.

Why? Because, as hath already been seen, there is not one, the probative force of which is not liable to be weakened by different classes of facts, distinguished on that consideration by the appellation of infirmative facts.

Among physical facts, one may be evidentiary of another with any degree of probative force; and accordingly with a degree of force sufficient to be regarded as conclusive.

On this head, see what, under the head of physical incredibility, is said farther on, of the three modifications of extraordinary facts: viz. facts amounting to a violation of a law of nature, facts devious from the course of nature in degree, facts devious in specie. If, the existence of fact A being supposed, the non-existence of fact B would be a violation of any law of nature, or devious in degree or species to such an extent as to be incredible, the probative force of fact A, in relation to the existence of fact B, may be deemed conclusive.

Thus, in regard to quadrupeds, take the two facts, parturition and sexual conjunction. Between these two facts, parturition is the indicative fact—sexual conjunction the fact indicated by it; and, of the former, the probative force, in relation to the existence of the latter, may be pronounced conclusive.

Among physical facts, however, even such as are the most completely conclusive, the conclusiveness affords no sufficient reason for the establishment of unbending rules, imposing on the judge the obligation of forming the conclusion indicated.

Why? Because, in proportion as the rule is safe, secure against being productive of erroneous decision, it is in the same proportion useless. Safe, it is not effective; effective, it is not safe.

Suppose a rule laid down, that, in every cause in which virginity may happen to come in question, parturition shall be regarded as a fact conclusively disprobative of it. The rule would be innocent enough: but where would be the use of it? Is there any the least danger, that, by any judge or set of judges by whom parturition has been admitted to have been satisfactorily proved, the existence of sexual intercourse should be disaffirmed?

If the establishment of any one such rule would be proper, so would that of as many others as could be constructed. But in this way a complete system of physical science would be to be established by authority, and engrafted into the system of judicial procedure: and limits to the improvement of every branch of physical science, and especially of the most important of all—the medical—would be fixed by law.

No rule ought to be laid down, rendering the exhibition of this or that evidentiary fact necessary as a condition sine quá non to a judicial decision affirming or assuming the existence of any other fact in the character of a fact indicated, and requiring for the proof of it the proof of such evidentiary fact.

Reasons.—If the probative force of the other parts of the evidence is not sufficient to produce persuasion on the part of the judge, persuasion will accordingly not be produced; and the rule restraining the judge from acting on the ground of such persuasion will be unnecessary and useless. If the probative force of the evidence is sufficient to produce such persuasion, and such persuasion is produced accordingly, although the proof of the evidentiary fact in question be wanting,—the restrictive rule is improper, prejudicial to the interests of truth and justice.

In the history of law, be the country what it may,—the farther we go back, the more numerous the instances we may expect to find of convictions and executions on insufficient evidence: but, for the opposite reason, the longer we go on in the track of civilization, the more rare we may expect to find the instances of such errors in judicature as have the weakness of the mental faculties for their cause. It is in the strength which, by the continually-increasing stock of information, may be given to the mental faculties of judges by apposite instructions drawn from correct and comprehensive views of the subject, that the true preservative against such errors is to be looked for; not in the restrictive operation of unbending rules of evidence.

If there be any cases in which any such unbending rules promise upon the whole to be beneficial to the interests of truth and justice, the two following seem to be of the number:

1. Where,—the mischief of the decision, if erroneous, being in a certain respect irreparable, and (by reason of the distance of the tribunal from the seat of government or otherwise) the confidence reposed in it by the legislator inferior to that which is reposed by him in some other and higher tribunal,—cases are accordingly marked out, in which, on the ground of evidence of such or such a description, or without the concurrence of evidence of such or such a description, a decision productive of such irreparable consequences shall not be pronounced, or shall not be executed.

It is upon this same principle, that, in the Austrian code, certain offences are marked out, such as magic and witchcraft, in relation to which the inferior tribunals of distant provinces are forbidden to proceed upon any evidence.

2. The other case comprehends in its whole extent the range of capital punishment—the only species of punishment which is absolutely and totally irreparable. But, of the consideration of this irreparability, what is the true result? The impropriety of this mode of punishment: not the propriety of those unbending rules.

In the instance in question, it was the consideration of the nature of the punishment—of the property thus belonging to it—that called into action the humane temerity of the judge. In every system of law into which this irreparable mode of punishment has been admitted—but most of all in the English system, in which the fondness shown to it is so great, and so continually upon the increase—the system of procedure in general, and of the law of evidence in particular, teems with rules and practices tending to the encouragement of criminality in every shape, and most of all in such as are most mischievous. Capital punishment has thus been all along operating, and will continue to operate with continually increasing force, as a slow poison upon the whole system of procedure, including that of evidence. Thus it is that the work of real inhumanity and of false humanity, of folly under that specious name, go on together: and, while substantive law, with its favourite and unwearied instrument, capital punishment* is straining every nerve to tighten the bands of society,—adjective law, with its prejudices and inconsistencies, is as pertinaciously employed in loosening them.

From the above theoretical propositions, the following practical instructions of a monitory nature seem deducible:—

I. Warnings tending to prevent under-valuation:

1. Reject no article of circumstantial evidence on the score of weakness.

2. Much less on the score of its not being conclusive.

3. Hold not the aggregate mass insufficient, for the separate insufficiency of the elementary articles.

4. Hold not an aggregate mass of circumstantial evidence insufficient, for the mere want of an article of this or that one description.

5. Hold not circumstantial insufficient, as such, for the mere want of direct evidence: viz. where direct evidence is not obtainable, or not without preponderant inconvenience in the shape of delay, vexation, and expense.

6. Hold not direct evidence insufficient, merely for the want of circumstantial.

II. Warnings tending to prevent over-valuation:

7. (1.) Set down no article, nor any aggregate mass, of circumstantial evidence, as even provisionally conclusive in all cases.

8. (2.) Much less as conclusive against, or (what comes to the same thing) to the exclusion of, all counter-evidence.

9. (3.) Content not yourself with general circumstantial testimony, when you can have special direct testimony from the same source.

10. (4.) Whatever evidence (in particular, circumstantial evidence) other than that produced by interrogation of the respective parties, presents itself,—if the situation of the party be such as to present any probability of his being able to give explanation of it (i. e. to contribute either to give completeness or correctness to it, or to the inferences deducible from it,)—fail not to employ interrogation—judicial interrogation applied to the party—for the explanation of it.

11. (5.) Reject not circumstantial as needless, on account of the abundance of direct.

§ 2.

Errors of jurists, from neglect of the above rules.

The warnings given above are (it may be said) reasonable enough, but are they not too obviously so to be of any use?

Among the errors thus pointed at, not one perhaps that has not been embraced in practice, propagated by law-writers, or, (what is worse) carried into effect by legislators and by judges.

In each part of the field of evidence, after what presents itself as the path of utility and reason has been traced out, the course taken in the present work is to bring to view the deviations made from it by the most distinguished systems of established law, the Roman and the English. Such, accordingly, is the course pursued on the occasion now in hand: except that—as exemplifications of such deviation cannot be found for every one of the above monitory rules—to supply the deficiency, the view given of the established practice in the two systems will here be preceded by a few examples, taken from the speculations of jurists, whose notions in regard to the points in question do not appear as yet to have been on any occasion explicitly adopted, so as to have given birth to practice. With a view to this particular subject, the order given to the monitory rules should also have been given to the examples: but, to avoid confounding unauthoritative notions with authoritative practice, the particular principle has been sacrificed to the general one.

1. An aggregate body of circumstantial evidence treated as insufficient, on the ground of the separate insufficiency of the elementary articles.

When, in a penal cause, the charge is supported (as is commonly the case) by a number of evidentiary facts, with or without direct testimony to the principal fact in question,—a natural, and, on the part of the advocate for the defendant, a necessary course, is, to take the body of evidence to pieces—to examine each member of it, each evidentiary fact, separately—and, from the inconclusiveness of each, to infer the inconclusiveness of the whole.

In the case of Captain Donnellan, on the criminative side no article whatever of direct evidence was produced, but a prodigious number of criminative facts—articles of circumstantial evidence. After he was executed, a book was written to prove the evidence insufficient. Each criminative fact was taken separately: how inconclusive this! how inconclusive that! and so on: each being inconclusive of itself, the inference was, that so they were all of them put together. Of the individual premises, each taken separately, the truth was undeniable; but the collective conclusion did not follow.

Donnellan practised distillation: as a proof of poisoning, what did that amount to?—next to nothing. At that rate, all distillers would be poisoners. Not engaged in that or any other occupation with a view to profit, nor yet occupying himself with chemistry in any other shape, still he practised distillation: what did that again amount to?—some small matter perhaps, but very little more. At that rate, all the Lady Bountifuls (a class which, though not quite so numerous as formerly, is not yet quite extract) would be poisoners.

He distilled what there was reason to think was laurel-water,—a known poison, not known to be used for any other purpose: the proof strengthens, though still very far from conclusive.

Thus much as to preparations, though there were others in the case. Go on next to motives. The relation of the defendant to the deceased was such, that, upon the death of the latter, a large property was to devolve upon the former. Here, then, was temptation—a sinister motive, to which he stood exposed. What he saw, what he could not but see, was, an advantage (and that to a great amount) on the point of accruing to him on the happening of that event. In that point of view, he was urged by a particular species of motive (pecuniary interest) to use his endeavours for the bringing about of that event. In that point of view, he stood exposed to the impulsive action of that motive. Does it follow that he yielded to the impulse? Here was a survivor who had profit in expectancy upon the death of the deceased. Does it follow that, at the expense of so horrible a crime, he used his endeavour for the procuring of such death? At that rate, the most common of all causes of death is parricide.

Ill-humour has been observed between man and wife: the woman dies. Is this a proof that she died by murder, and that her husband was the murderer? At that rate, the few couples excepted who might be capable of making title to the flitch at Dunmow, all married men and all married women are murderers.

2. An aggregate body of evidence held insufficient, for want of a particular article of circumstantial evidence.

In several instances that have been made public, and in a number greater than might at first view have been supposed,—a defendant has been convicted of the murder of a man, who has afterwards made his appearance in a living state.

In consideration of the fatal errors in judicature thus brought to light, instances have been mentioned in which a judge has declared his resolution never to concur in any conviction of murder, where the dead body has not been found.* But a resolution known to be thus declared (at least if corroborated by a known instance in which such resolution has been acted upon,) is sufficient to give birth to a rule of jurisprudential law.

The motive of the determination was evidently a laudable one, but the consequences of the determination, if converted into a rule, and that without exception, and known to be so, would be in the highest degree prejudicial to justice. To secure to himself impunity, a murderer would have no more to do but to consume or decompose the body by fire, by lime, or by any other of the wellknown chemical menstrua; or to sink it in an unfathomable part of the sea. In any of these ways might the body be effectually got rid of: and, though it were in the face of any number of witnesses, the rule being established without the correspondent exceptions, impunity would follow of course.

Nor yet would the rule afford the security it aims at, without another condition, not expressed upon the face of it. The body found,—by what evidence is it to be proved to have been found? The judge before whom the prosecution for the homicide is to be tried,—is it to his eyes that the body is to be produceed? This is not in any case what is meant. What, probably enough, is meant, though not expressed, is, that the existence of the body in a dead state should have been ascertained by the testimony of some ocular witness, whose trustworthiness is regarded as being exception-proof: for example, in English law, the coroner with his jury. For, if any testimony at large is to be regarded as sufficient, the intended security is gone. “I saw the body of Titius after he was dead:” “I saw Sempronius beat out the brains of Titius.” Falsehood may attach with as little difficulty upon the one speech as upon the other.†

3. An imperfect body of circumstantial evidence set down as conclusive, for want of due attention to supposable infirmative facts.

Of the need there may be for these warnings, an exemplification may be seen in the doctrine of Lord Coke.‡ Of his division of presumptions (i. e. of circumstantial evidence) into three degrees, in respect of force—violent, probable, and light or temerarious—mention has been made upon another occasion, in another place.∥ “Violenta presumptio” (says he) “is many times” (in many instances) “plena probatio” (full proof:) and the instance he gives is this:—“As if one be run thorow the bodie with a sword in a house, whereof he instantly dieth, and a man is seen to come out of that house with a bloody sword, and no other man was at that time in the house.” “Presumption probabilis moveth little, but presumptio levis sen temeraria moveth not at all.”

To the probative force of this body, or rather article, of circumstantial evidence, two facts present themselves in the character of supposable infirmative facts.

1. The deceased plunged the sword into his own body, as in the case of suicide: the accused, not being in time to prevent him, drew out the sword, and so ran out, through confusion of mind, for chirurgical assistance.

2. The deceased and the accused both wore swords. The deceased, in a fit of passion, attacked the accused. The accused, being close to the wall, had no retreat, and had just time enough to draw his sword, in the hope of keeping off the deceased: the deceased, not seeing the sword in time, ran upon it, and so was killed.

Other suppositions might be started besides these; nor do these exculpative ones either of them seem in any considerable degree less probable than that criminative one: if so, the probability of delinquency, instead of being conclusive, is but as 1 to 2.

Such is the evidence upon which the father of English jurisprudence would have pronounced a man guilty without seruple.

What it is he would have found him guilty of,—murder or manslaughter,—a capital crime, or a crime short of capital,—he does not say: murder, probably enough; since manslaughter, being a sort of alleviation, requires special evidence: murder, accordingly, is the verdict which the coroner’s jury find of course, where no alleviating circumstances, to reduce it to manslaughter, have presented themselves*

§ 3.

Defects of established systems, from neglect of the above rules.

1. General circumstantial testimony, received to the exclusion of special direct testimony from the same source, as also of all counter-evidence, is exemplified in the instance of the several sorts of actions or suits to which the evidence called wager of law† applies.—Restoration of a specific thing is claimed at the defendant’s hands. By whatsoever body of apposite evidence, direct or circumstantial, the claim is supported,—the defendant is allowed to adduce the counter-evidence thus denommated, and the evidence in support of the claim becomes inadmissible. The defendant comes into court, and denies, in general terms, the fact (whatever it be) on the ground of which the obligation is sought to be imposed upon him. Along with him comes a posse of other witnesses: number, a dozen, neither more nor less. They know nothing about the matter; but, by the opinion they have of him, they are certain that what he says is true. The evidence they furnish is so much character evidence.

Swearers of this denomination are like ghosts and witches: nowhere do they exist; but in many and many a place they do as much mischief as if they did. Two or three sorts of actions are altogether laid asleep by them; and the effect of it is, that, for no one moveable thing that he has, has an Englishman any remedy at law. Money is given him instead of it. The sum is never equal in value to the injury sustained by the want of the thing sought. To keep the thing, at the price thus put upon it, is always at the option of the wrong doer.

In Roman law, general circumstantial testimony accepted in lieu of, or in addition to, special direct testimony from the same source, is exemplified in the cases where the oath denominated juramentum expurgatorium‡ was employed. The cases being penal, and the evidence on the criminative side neither sufficient for conviction nor yet for torture, the judge might, if he thought fit, call upon the defendant to swear to his non-delinquency in general terms: of a fixed formulary for that purpose, I know no instance. The description of the practice is obscure and vague enough, like everything else in Roman law.

In these as in all other penal cases, interrogation of the defendant himself was in the power of the judge: extraction, consequently, of a full body of confessorial evidence, or of the denegatory testimony given by him in lieu of it (testimony, of which, on the supposition of delinquency, more or less must have been false.)

Was this power employed? This was letting off a delinquent upon bad and unsatisfactory evidence, when, upon better evidence, and (in case of confession) the very best of all, he had been either shown to be not guilty, or shown to be guilty. This is recurring to inferior evidence, after receiving superior evidence from the same source. It is like Harpagon in the play:*Rends moi, sanste foudler, ce que tu m'as volé: the search had already been made, and produced nothing.

Has the power remained unemployed? This is employing the inferior to the exclusion of the superior evidence. It is as if the master, persuaded of the guilt of his innocent servant, had contented himself with saying to him—“Tell me whether you are guilty or no;” forbearing purposely to make search.

Juramentum suppletorium.—This was an oath in certain non-penal cases. It possessed, in common with the juramentum expurgatorium, the feature which renders it applicable to this purpose. In different nations, on different occasions, it appears to have been employed in the character of an evidentiary fact; right of some sort or other being the fact indicated—right to some service, such as that very extensive sort of service which consists in the transfer of money or money’s worth to the possessor of the right—right to an exemption from an obligation of that or some other nature, sought to be imposed on him.

The error applicable to the present purpose consists in the acceptance of a vague assertion, in addition to, or to the exclusion of, a specific statement; of an article of weak circumstantial evidence, in addition to, or in exclusion of, a body of direct evidence from the same source.†

2. Evidentiary facts excluded altogether, under the idea of their being weak; and even under that of their not being conclusive.

In the case of this, as of every other species of evidence, the production of it should neither be compelled nor admitted, when by such compulsion or admission more evil will be produced in respect of the collateral ends of justice (viz. avoidance of delay, vexation, and expense,) than by the exclusion of it, in respect of the direct end of justice, viz. by danger of indecision.

Except on this ground, however, there is no evidence, presented in the character of circumstantial evidence, the production of which ought not to be, not only permitted, but compelled. In particular, no such evidence ought to be excluded on the ground of deficiency in point of probative force.

Why should any be excluded? Operative, it is useful; inoperative, it is innocent.

The rashness with which, on different pretences, exclusions—peremptory and inexorable exclusions—have been put upon evidences of different descriptions by men of law, will be matter of ample observation in another place.‡ The ground which forms the subject of the present book is that on which this rashness has displayed itself with least violence.

From oral evidence,—circumstantial evidence orally delivered,—it seems to have abstained altogether: in the permanent texture of written evidence, it has found (as it were) solid ground to fasten upon.

In the shape of parole evidence,—be the evidence, when of this description, ever so slight—be the inference it affords ever so short of being conclusive,—there is no objection to the reception of it. In this shape, imagination cannot frame a circumstance more trifling, more inconclusive, than many are which have been admitted to be produced in evidence, and continue to be admitted in every day’s practice.

Admitted? Yes; and with great and just effect. Why? Because (not to speak of greater numbers) even two articles of circumstantial evidence—though each taken by itself weigh but as a feather,—join them together, you will find them pressing on the delinquent with the weight of a millstone.

Give to the evidence in question the form of a written document, the treatment it meets with is reversed. An inexorable bar is now opposed to it. Presented by the mouth of a witness, be its value ever so small, it is allowed to pass for whatever it is worth: presented in writing, if it fall short of being conclusive, it is not allowed to go for anything.

So it be exhibited vivâ voce, no matter how remote and inconclusive the evidentiary fact reported by the circumstantial evidence. When received, the impression made by it may be slight, or amount to nothing; but the lightness of it, how extreme soever, is never made into a ground for the exclusion of it. It is only when consigned to writing that it is scrutinized before admission, and, if not looked upon as weighty enough to be conclusive, is thrown out as worthless. Rash exclusion on one side, or equally rash exclusion on the other: rash exclusion of the lot of evidence in question, or rash exclusion of every other evidence that might have been opposed to it: such is the only alternative.

A record (says the immortal Gilbert, the father of the law of evidence,) a record is a diagram whereby right is demonstrated.∥ To appear, and not to command assent, is beneath its dignity: where demonstration enters, doubt finds no room to stand upon.

Numerous are the instances in which the admissibility of matters of record, in proof of the existence of other matters of record, has been disputed; and in some it has been disputed with success: with relation to the fact supposed to be indicated, the existence of the document in question has been pronounced no evidence; or (what comes to the same thing) the court has in that character declared it inadmissible—refused to pay regard to it.

That the ultimate decision which has taken place in consequence of this rejection, has been contrary to truth and justice, is more than, in all or any of these instances, I could take upon me to affirm: an opinion to that effect, well or ill grounded, would be of no use, materials for torming it are not forthcoming. Possibly, in each one of these instances, had the document been received in evidence, and its probative force been taken into consideration, it would have been found inconclusive: that is, the whole of the evidence on that side (whether the document in question constituted the whole or only a part of it) would have been considered in that light.

Nor yet will I take upon me to say (for perhaps it may not be to be known, and, if it were, the result of the inquiry would not be worth the trouble) whether, in the several instances in question, the case was, that the evidence was rejected without consideration of the tenor of it. Excluded or no in fact, and in that individual cause, it appears at any rate in the character of a species of excluded evidence, in the books of law.* Accordingly, in due form of legal architecture, a species of case is built upon the ground of it: and thereupon, as usual, in each succeeding cause in which the same or a similar point presents itself, the question is—not whether the fact happened, but whether the individual case in hand belongs or does not belong to that species of case.

What is the consequence? Though, in the individual case in hand, not a person concerned that is not persuaded of the existence of the fact indicated—the existence of the document which, supposing it to exist, would be decisive; persuaded, and that by the other document, the existence of which is exhibited in the character of the evidentiary fact; yet still the decision is to be directly contrary.—Why? Because the case is of the same species as that in which, in the former instance, an evidentiary document of the same or a similar species was regarded as inadmissible.

What, then, is the practical conclusion here contended for? It is this: viz. that every article of evidence, the nature of which is to operate in the character of circumstantial evidence—whether it be presented in the form of oral or of written evidence, and (if in the form of written evidence) whether in the form of a judicial document or any other,—ought equally to be admitted: the judge of fact being left equally free, in all these cases, to form his judgment of its probative force. That accordingly, in those instances where (as in England) the function of the judge of fact is exercised by a jury, the question respecting the probative force of the document in question, with reference to the fact alleged to be indicated by it, ought to be suffered to be submitted to them—in the same manner as the probative force of any article of circumstantial evidence exhibited to them through the medium of oral testimony.

Circumstantial evidence at large (supposing no legal cause of exclusion opposable to the testimony of the reporting witness,) circumstantial evidence, as such, is supposed to go to a jury, who, being simple and unlearned persons, are left to judge of it in their own way, without any better light for their guidance than the light of common sense. But it would be beneath the dignity of the sages of the law to suffer themselves to be led by any such vulgar guidance. When they judge, it must be by rule and measure: practice, not reason, is their guide. To judge of the probative force of evidence is not their practice: it is an operation out of the sphere of their practice, and beneath it. The sort of question to which they are in use to find answer, is, whether a piece of evidence shall be admitted or excluded. Between being admitted and being deemed conclusive—between a man’s being heard, and his exercising an absolute command over the decision—there is in the nature of things a medium obvious enough. But whatever there may be in the nature of things, in their practice there is none. If admitted (says the lawyer to himself) it is that sort of evidence that must be conclusive; for who is there that shall take upon him to pronounce it otherwise? Not I: it is not our province—it is not our practice, to weigh the force of evidence. Not the jury; for, being a law document, it belongs not to them to judge of it—such matters are too high for them. It I considered it as conclusive,—insomuch that, were I to take it into consideration, I should regard it as absolutely demonstrative of the fact indicated? Yes. But could I regard it in that light? No, I could not. What, then, is to be done with it? Done with it?—why, what else can be done with it than what we are so much in the habit of doing by evidence of all sorts, and for any the slightest reason, or no reason?—shut the door against it, and refuse to look at it.

3. A single article of circumstantial evidence set out as being of itself conclusive (viz. of the existence of the fact indicated,) is an incongruity exemplified in the case where, on the score of interest (i. e. exposure to the sinister and seductive action of this or that species of motive,) a man is excluded from the faculty of giving testimony in the cause. Titius has such an interest in this cause, that, supposing him to swear falsely to such or such a fact, and thereby commit perjury, and supposing his testimony to be believed, he would be a gainer by such perjury. By the impulse of that motive, he is prompted to commit perjury; therefore, if heard, he would perjure himself; therefore he shall not be so much as heard. The exclusion is just as rational as if Donnellan had been convicted of the murder on no other evidence than that of his being next in remainder to the estate. If this were reason as well as law, no witness ought ever to be heard in the character of a witness: no man ought ever to be out of the pillory.

Observe, that, though the assumption here made were always realized, it would not still be sufficient to warrant the exclusion grounded on it. For the strongest interest which a witness can have in being guilty of mendacity is inconsiderable, in comparison with the interest by which a defendant under examination in a capital case is prompted to incur the same guilt: and for this very reason, the evidence which a man in this situation yields to his own prejudice is of all evidence the most satisfactory. But of this more fully in its proper place.*

§ 4.

Circumstantial and direct evidence compared, in respect of probative force.

In respect of probative force, circumstantial evidence has sometimes been put into comparison with direct, both being considered in the lump: and, on a survey thus superficial, the superiority has sometimes been attributed to the one, sometimes to the other.

A few observations, for the purpose of clearing up the subject, may perhaps not be misemployed.

Possession of either affords, as observed above, no reason for neglecting the other.

But it may happen, that (especially in a penal case on the defendant’s side) evidence of one of the two sorts may be supposed to be wanting: or, in a cause of any sort, on each of the two opposite sides, evidence of the one sort may stand single or predominate.

Taking circumstantial in the largest sense, so as to include all the several modifications that have here been referred to that head,—it has already been observed that in no case perhaps was ever a mass of evidence formed, consisting of direct evidence alone, without any admixture of circumstantial: more especially not in any disputed case; and the rather, as different portions of direct evidence will operate in support of each other, thus acting each of them in the character of circumstantial: direct evidence being that which affords not, or at least requires not, any inferences; whereas circumstantial is in a manner composed throughout of inferences.

But circumstantial evidence is, on the other hand, presented oftentimes without any admixture of direct; and in that pure state, decisions are often grounded on it.

Regarded in an abstract point of view,—the essence of the species being considered, without regard to the quantity naturally found in a state of conjunction, in the several individual cases,—the inferiority of circumstantial, as compared with direct, is out of dispute. Direct evidence requires no inference: circumstantial evidence is composed of inferences: and, as already observed, there is scarce an inference to which it may not happen to be fallacious.

Strictly speaking, in the case of direct evidence (it is to be observed) there is always indeed an inference; but this inference is in every instance of the same nature,—from the report made by the witness, the inference that the facts contained in that report are true.

Of circumstantial evidence, by way of argument in proof of the superiority of its probative force over that of direct evidence, it has been said that it cannot lie. But it is only of certain modifications of circumstantial evidence that the proposition is true.

The evidence, and the only evidence, which cannot lie, is that which, without the intervention of any human testimony, presents itself directly to the senses of the judge. In this case is real evidence; and such involuntary evidence as is exhibited by the deportment of a party or an extraneous witness while undergoing the process of interrogation. In this same situation is even lying testimony (false responsion) itself, considered in respect of the inferences which, on the supposition of its mendacity, it affords—inferences in virtue of which its character is changed from that of direct to that of circumstantial evidence.

But all evidence, which, in its way from the source of evidence to the senses of the judge, has passed through the lips or the pen of a human being, is no less susceptible of that pernicious quality than direct evidence is. And in this situation are all the remaining modifications of circumstantial evidence (real evidence itself not excepted,) when, by having passed through the lips or pen of a deposing witness, it has sunk into the state of supposed real evidence reported.

But it is only in so far as it is a cause of deception, and in so far as it acts with success in that character, that lying is productive of effects adverse to the ends of justice: and real evidence, it has been seen, is no less capable of acting in this character than direct personal evidence: real evidence, like written evidence, being, in the hands of a forger, a source no less capable of producing deception, than, when passed through a mendacious mouth or pen, the direct testimony of a deposing witness is.

Thus much, however, is true, viz. that it is only here and there by accident that real evidence is capable of being fabricated, or by alteration adapted to a deceptitious purpose: whereas there is no case in which it may not happen to a man, in the character of a deponent, to stain his deposition by mendacity, if he sees what to him forms an adequate inducement, and is content to run the risk.

The features of advantage by which circumstantial evidence is in a more particular manner fitted for rendering service to the cause of truth and justice, seem to be as follows:—

1. By including in its composition a portion of circumstantial evidence, the aggregate mass on either side is, if mendacious, the more exposed to be disproved. Every false allegation being liable to be disproved by any such notoriously true fact as it is incompatible with,—the greater the number of such distinct false facts, the more the aggregate mass of them is exposed to be disproved: for it is the property of a mass of circumstantial evidence, in proportion to the extent of it, to bring a more and more extensive assemblage of facts under the cognizance of the judge.

2. Of that additional mass of facts, thus apt to be brought upon the carpet by circumstantial evidence, parts more or less considerable in number will have been brought forward by so many different deposing witnesses. But, the greater the number of deposing witnesses, the more seldom will it happen that any such concert, and that a successful one, has been produced, as is necessary to give effect to a plan of mendacious testimony, in the execution of which, in the character of deposing witnesses, divers individuals are concerned.

Thus, suppose a guilty defendant’s reliance placed in a false mass of alibi evidence. The greater the number of mendacious witnesses, who depose to their having seen him at the time in question, at a place at which he really was not at that time (they having been themselves each of them at a different place at that time,) the greater the number of false depositions, each of which is exposed to be disproved by true ones. And so in case of evidence to character.

3. When, for giving effect to a plan of mendacious deception, direct testimony is of itself, and without any aid from circumstantial evidence, regarded as sufficient,—the principal contriver sees before him a comparatively extensive circle, within which he may expect to find a mendacious witness, or an assortment of mendacious witnesses, sufficient to his purpose. But where, to the success of the plan, the fabrication or destruction of an article of circumstantial evidence is necessary, the extent of his field of choice may in this way find itself obstructed by obstacles not to be surmounted.*

One thing may, on this occasion, have a claim to notice: viz. that, in a great (probably the greater) number of instances, a fact necessary to be established in disfavour of the defendant’s side—a fact necessary to be established on the part of the plaintiff—belongs to that class of facts which is scarce capable of being proved to satisfaction without the aid of circumstantial evidence.

In this situation, for example, are all those facts of a psychological class, the proof of which, as against the defendant, is necessary to his conviction; and which cannot be proved by direct evidence other than that testimony of his own—that confessorial evidence—which nothing but an assured expectation of a sufficient mass of inculpative evidence from other quarters will ever prevail upon him to give. Criminative or otherwise inculpative consciousness,—inculpative, criminative intentions,—to which is added, in some cases, the existence and influence of this or that particular sort of motive;—to one or other of these heads may be referred the psychological facts, proof of which, one or more of them, is (in case of most of the offences occupying a high rank in the scale of criminality or penality) regarded, and that justly, as indispensable.

But these are among the facts, the existence of which no defendant, who does not regard his case as rendered desperate by other evidence, will ever acknowledge. Proof, therefore, whatsoever they are susceptible of, if they receive, they must receive from extraneous evidence: and, until the parable of the man with windows in his breast be realized, such extraneous evidence cannot be of any other nature than that of circumstantial evidence, viz. under one or other of the modifications as herein above brought to view.*

[* ]Just so is it in the case of a chain of causality, a chain of causes and effects. Indeed, every chain of causality is a chain of evidence. Every effect is evidentiary of its causes: every cause, is evidence—is evidentiary—of its effects.

[† ]This is alike true in the case of hearsay evidence (of which hereafter) as in that of the evidence of an immediate witness; only that, in the case of hearsay evidence, the fact, the existence of which is asserted by the so deposing witness, is—not the fact sought, not the ultimate principal fact—but only a fact supposed to be connected with it; the fact of his having heard, or otherwise perceived, a fact evidentiary with relation to it; viz. a statement given by some other person in relation to such principal fact. Here are two or more articles of evidence combined together; the one judicially exhibited, the other extrajudicially: but both of them belong alike to the head of direct evidence.

[‡ ]If the forbidden act be of the negative cast, it comes to the same thing; only—instead of the existence of the intention in question—the psychological fact in question, the psychological fact necessary to the composition of the crime, consists in the non-existence of it.

[* ]See Berkeley’s Essay towards a new Theory of Vision.

[* ]Considered in respect of its source, all evidence flows either from persons or from things;—all evidentiary facts, as well as all principal facts, are afforded either by persons or by things.

Considered in its nature, all psychological evidence cannot come under any other denomination than that of personal evidence.

The description of real evidence—of physical facts, whether considered as principal or as evidentiary—is not alike narrow. Persons, being composed of matter as well as spirit, having their physical properties as well as their psychological properties, belong, in virtue and to the extent of their physical properties, to the class of things. Hence, real physical evidence may flow alike from a personal as from a real source: personal evidence cannot flow from any but a personal source.

[* ]Vide infra, Chap. XVI. § 2.

[† ]In speaking of evidentiary facts as having the effect of probabilizing the correspondent principal facts, some notice cannot but be taken of the opposite effect, disprobabilization. But, owing to the structure of language, in virtue of which, by so simple an expedient as the addition of a short particle (a particle expressive of negation,) the same expression may throughout be employed to designate facts and other objects of a directly opposite nature,—there will be little need for considering the probative force (the disprobative force it will here be to be held) in this latter point of view. To probabilize any given fact will be the same thing as to disprobabilize its opposite: to probabilize delinquency will be to disprobabilize innocence; to probabilize innocence will be to disprobabilize guilt.

But according as, in either instance (in the instance either of the principal fact or the evidentiary fact,) the fact, to the designation of which the expression in question is applied, is of the positive cast or the negative cast (expressive of motion, or not,) such a word as the word probabilize, or such a one as the word disprobabilize, will be the most directly and properly adapted to the nature of the case.

[* ]On contemplating the field of circumstantial evidence, an observation that will naturally present itself is, that it is to the penal branch of law that the topics apply, much more than to the non-penal branch. The reason is, that, for the most part, they consist in certain modifications of human conduct on the part of the supposed agent, and that those modifications have their origin in one common circumstance—consciousness of delinquency; or rather (to use an expression at once more correct as well as more extensive) apprehension of punishment. I say more correct; for, though apprehension of punishment may, without danger of error, be regarded as a necessary consequence of consciousness of delinquency, that consciousness cannot, without danger of error, be regarded as a circumstance necessarily precedent to apprehension of punishment:—a proposition in itself obvious enough, but which is at the same time but too apt to be overlooked, and which will therefore be, on several occasions, exemplified as we advance.

Not but that, in a case not penal, these symptoms of alarm will most of them be found not altogether inapplicable; inasmuch as the loss of the cause (whatever he the nature of the cause, and on whichsoever of the two opposite sides of the cause it takes place, the defendant’s or the plaintiff’s) is in its nature a result of an unpleasant kind, and, as such, is the natural object of an apprehension similar (howsoever far from equal in degree) to that which has the fear of punishment for its cause.

When, by the vision of the terrific hand of law, the emotion of fear is generated in the human breast, what is the specine source and cause of that emotion? Not the word penal; not the difference between that and non-penal; not the name of punishment; but the quantum of mischief or inconvenience apprehended as about to flow from this terrific source; under whatsoever name the infliction may stand designated.

In some of the highest degrees of the scale, the distinction between penal cases and cases not penal is substantial and effective. What then are those highest degrees? All those in which (with relation to the individual in question, and his idiosyncratical sensibility) the quantum of affliction would be superior to the utmost that could result from the total loss of all his property—property in expectancy included or not included, as the case may be. Of the scale of legal suffering there is accordingly a certain part which is the peculiar production of the penal branch of law. It is the portion above delineated. Below the mark at which that superior part of the scale ends, is the common domain of both branches. For a cause which imports no stain on reputation, I am adjudged to pay five shillings: what matters it to me whether the cause is called a penal or a non-penal one?—whether it be under the name of a penalty, or of damages, or by loss of a matter in dispute to that amount?

Within the compass of the ground which (as above) belongs in common to both branches, penal and non-penal, of the law, whatever distinctions have been made, whether on the occasion of the rules of evidence, or on any other occasion, are thus evidently groundless: and—so far as they are employed and relied on in practice—confusion and error (confusion in conception, error in practice) are the necessary consequences.

The decisions of the legislator—of the friend of mankind holding the sceptre of legislation—are grounded on human feelings, regardless of everything else. The decisions of the man of law, regardless of human feelings, taking the habits and interests and language of his profession for the standard of right and wrong, are grounded on words and phrases.

From the above considerations, many of the facts which will in the sequel be brought to view in the character of facts evidentiary of delinquency (with their respective trains of infirmative facts,) may be seen to apply not to penal cases alone, but moreover to non-penal cases: and, in both sorts of cases, not to the station of defendant only, but moreover to that of demandant; at least, in so far as a demandant has any personal suffering to apprehend from the decision if pronounced in favour of the other side.

[* ]No such table is to be found in the MS.—Editor.—[The portion of Le Clerc’s work which was made use of, is evidently the 2d section of Part III. “De locis et scriptis spuriis à genuinis dignoscendis.” Vide Ars Critica, Lond. 1698, vol. ii. p. 367.—Ed. of this Collection.]

[† ]This table, as well as that which is subsequently mentioned, is also wanting.—Editor.—[But see the Addenda to Evidence. Tit. Testmoigne, Com. Dig. Hammond’s Edit.—Ed. of this Collection.]

[* ]In this table, the several articles consist of so many species of principal facts, facts supposed to be evidenced. The corresponding lists of evidentiary facts, expressed here by the word signs. are exhibited in the corresponding divisions of the book. To have transcribed them would have been to transcribe the whole work, consisting of 184 pages. Specimens, however, have been exhibited, in the case of homicide in general, and of infanticide in particular.

[* ]In a tale of the Arabian Nights’ Entertainments (the Little Hunchback,) the body of a man who died by accident finds its way into the house of an innocent man, and from thence (under the apprehension inspired by the fear of its operation in the character of real evidence) into a series of other houses. Not many years ago, the story was introduced upon the English stage. So many transfers (as above;) so many exemplifications of real evidence; so many exemplifications of a forgery, and at the same time an innocent forgery, of real evidence.

The case of Captain Donnellan, who was hanged for the murder of Sir Theodosius Boughton, gave occasion to an anonymous treatise on the subject of circumstantial evidence. Under a system of penal procedure distinguished beyond all others for its favourableness to the defendant, instances (it thence appears) have been but too abundant, in which innocence has sunk under the weight of fallacious real evidence. In any of these instances, suppose the defendant, thus pressed, endeavouring to remove the pressure,—you have so many instances of forgery, and that innocent forgery, of real evidence. In the instances where the undue and irreparable punishment took place, the fault (let it be observed) lay not so much, if at all, in the system of procedure, as in the substantive branch: in the making use of a species of punishment, which, were it only because the mischief of it is irreparable, would be unfit for use.

[† ]Example—story of Joseph and his brethren.

[* ]See Book VII. Authentication.

[* ]See Book IX. Exclusion; Part IV. Vexation; Chap. III. Self-disserving Evidence.

[† ]In some cases, this species of fraud (the deceptitious fabrication, obliteration, or alteration, of the appearances presented by a natural body) constitutes a substantive independent offence of itself—forgery of which writing of any kind is the subject-matter or the object—forgery of which general money of any sort, the general medium of exchange, is the subject-matter or the object of these modifications of the more extensive species of deception—forgery in regard to real evidence in general—the subject-matter has been already touched uponunder the head of Pre-appointed Real Evidence.

[* ]Whether, in the case in question, the several above-distinguished modifications of innocent deception did actually take place, would be a scrutiny foreign to the purpose. Some, indisputably; not all, possibly: but the inquiry would be completely useless, since, correct or not correct, the statement answers, in equal degree, the purpose of illustration. What is material is—the circumstances in it (if any) that are false, are, in any future case, just as likely to be exemplified as if they had been true.

[† ]If the endeavour be a serious one—an endeavour to cause an innocent person to suffer ultimately as for a delinquency, of which, to the knowledge of the forger, he is not guilty,—the act directed by this intention, and accompanied by this consciousness, constitutes a substantive offence, and the presumption of delinquency afforded by the forgery is by the supposition not fallacious.

[* ]Boehmer, § 2, Cap. 33.

[† ]Banniza, § 464-471.

[‡ ]Heineccii Elem. (ad Pand.) Pars. VII. § 149.

[∥ ]Causes Célèbres (1737), iii. 323.

[* ]An example will be seen further on, in Donnellan’s case.

[* ]See Causes Célebres.

[† ]In the cases where the act has not been intended, or the event not expected, the preparations, being employed as instruments of deception, have been tinctured with that species of fraud which has, on a former occasion, been distinguished by the name of forgery of real evidence: a deception which, though the object of it is to disguise or suppress genuine evidence, becomes itself evidence when discovered, but evidence on the other side. Every species of deception, which, if successful, would have produced evidence on the side of the deceiver, operates as evidence against him in case of ill success.

[‡ ]Trial, pp. 18, 20.

[∥ ]Ib. p. 41.

[* ]On this principle, for the more effectual prevention of the crime which consists in the murder of an illegitimate child, a punishment has been imposed by English law upon the mere concealment of the birth—an act in itself nowise criminal, but considered in the light of evidence of a criminal intention.a

[† ]Dumont, Traités de Législation (Ed. 1802,) iii. 119. See above, Vol. I. p. 559.

[* ]In some cases the preparation and the attempt will be clearly distinguishable, but in others they will not. To the present purpose, at any rate, they may be brought together under one head: in respect to the infirmative facts capable of applying to them, there will not be found any difference.

[† ]In this case (it may be objected) the fact is not, properly speaking, an infirmative one. By pleading it, a man would not (as in the other cases that have been seen) admit—he would on the contrary deny, the existence of the inculpative fact in question. True: the preparation or attempt was not a preparation or attempt to produce exactly the same result that, in consequence, is understood to have taken place but it was, however, a preparation, an attempt, to do something; and a preparation or attempt of which the mischief in question has been the result. A man is killed by a bullet, shot out of a fowling-piece: whether the intention was to kill or not to kill, suppose the supposed delinquent were, a little before, seen putting a bullet into the fowling-piece, the preparation thus made would not be the less likely or the less fit to be considered in the light of an evidentary circumstance, probabilizing the intention of producing the mischievous result that actually took place.

[‡ ]See Donnellan’s case. Crime—murder, poisoning by water distilled from laurel leaves: criminative fact—preparation for distilling: infirmative supposition—it might have been for water from rose or other leaves; and such was the colour endeavoured to be given to it.

[∥ ]It is only in the character of an infirmative supposition applicable to a criminative evidentiary circumstance, that the state of things here supposed applies to the present purpose. What, on the supposition that the consummation of the act of delinquency is sufficiently proved by the help of ulterior evidence, may be the proper relative quantity of punishment (relation being had to the more ordinary case of an exact conformity between the criminal intention and the noxious result,) is a question that belongs to another place. On this point, see Introduction to Morals and Legislation. Vol. I. p. 35, et seq.

In the State Trials may be seen a trial for maiming, in which the defence was, that the maiming was unintentional, the design being manifestly to kill, for that manning would not answer the purpose. Conviction took place notwithstanding; it is difficult to say whether properly or not: the indictment being grounded on unwritten law, under which neither right nor wrong can have any determinate place. Under the statute law,—where the intention has been equally or more noxious than the result, there will be no difficulty in saying that the punishment allowed to be inflicted ought to be at least equally great, because, in resolving the mischief of the offence into its component elements (viz. into the mischief of the first order, viz. that which falls on the individual specially injured and his immediate connexions—and the mischief of the second order, viz. the alarm and the danger extending to the community,) it will be found that the aggregate mischief, and thence the demand for punishment, is not, in this anomalous and extraordinary case, inferior to what it is in the ordinary case. (See Dumont, and “Introduction,” &c. ut supra.)

[* ]Among a number of considerations, each of which would of itself be sufficient for the abolition of the savage practice of confounding homicide on the occasion of a duel in consequence of mutual consent, with homicide in the way of assassination, one is, that in general the result intended is not death, but only disablement; and the proof is, that no sooner has the disablement taken place, than hostility ceases.

[† ]See Bradford’s case, in a Treatise on Circumstantial Evidence, occasioned by Donnellan’s trial.a Bradford being an innkeeper, a traveller, seen to be well provided with money, put up at his house. The traveller was found weltering in his blood, Bradford in the room, armed as for the crime: he had, however, been frustrated by another traveller, with whom he had had no intercourse on the subject, and who on his deathbed confessed the fact.

[‡ ]Where a number of persons are engaged together in some unlawful pursuit, and one of them, on a sudden, in furtherance of their common purpose, commits a murder, they are all guilty of murder in the eye of the law. Fost, 351 to 354; 2 Hawk, P. C. cap. 29. §§ 8, 9.—Ed.

[* ]Vide infra. Chap. VI.

[† ]Chap. V. & VI.

[‡ ]Infra. Chap. XIII.

[* ]Vide Book IX. Exclusion.

[* ]I say, for shortness, there is no harm done; for correctness, the expression will not serve. A harm there is done: the harm which consists of insufficient punishment—the harm which takes place when a man, having incurred a greater punishment, is, instead of it, subjected to a less.

[* ]Not many years ago, at a special commission in the south of England, a respectable farmer suffered himself to be found guilty of arson, in order to screen his son. As soon as the son was out of danger, the father’s innocence was made manifest, and he was pardoned.—Ed.

[† ]To conduct the party, for example, to a magistrate, or, at any rate, to give information to a magistrate, for the purpose of the party’s being so conducted before him.

[* ]Where were you at such a time? is as much as to say—My will is, that you name to me the place at which you were at such a time.

[* ]By spontaneous self-inculpative testimony, is here meant, as will hereafter be seen, not self-inculpative testimony which is voluntary, and intended to be self-inculpative, in contradistinction to that which is not so intended; but merely that which is not, as distinguished from that which is, extracted by interrogation. Spontaneous is here, as in the book on Extraction, employed as synonymous with uninterrogated.

[* ]The word confession is apt to suggest the idea of a voluntary acknowledgment made by the defendant of his having committed the offence with which he is charged. The confession, however, may be either voluntary or involuntary; and it may have for its subject, not the offence itself, but some fact or facts evidentiary of it.

The fact which is the subject-matter of the confessorial evidence, may be either a fact of the number of the principal facts by which, taken together, the complex fact of the defendant’s criminality is composed; or it may belong to any one of those classes of evidentiary facts which have been or will hereafter be brought to view in the character of so many species or modifications of circumstantial evidence:—Preparations, attempts, declarations of intention, threats: physical and involuntary symptoms of fear, betrayed by the confessionalist upon an occasion specified: the care taken by him to conceal the obnoxious event, the criminal act—or his person while engaged in it; to keep out of the way all persons whose presence might have been dangerous in the character of percipient witnesses of it: the language held by him, before the act and after it, in the view of quieting suspicion, or preventing it from coming into existence: the exertions employed by him upon a variety of objects, of the class of things, in the view of preventing them from assuming appearances capable of testifying against him in the character of real evidence: the exertions employed by him in the view of giving to any of those objects delusive appearances, tending to bring to view the obnoxious event as being the work of mere accident, or of some other agent: the labour employed by him upon the apprehended witnesses, whose observations, in the characteror percipient witnesses, he could not prevent from coming into existence: the exertions made by him to keep them out of the way by direct threats or promises by deceitful representations, or by downright force—or, in the event of their appearance, to suppress the facts indicative of his guilt, or even substitute to them pretended facts indicative of his innocence: the exertions made by him for the purpose of operating in the like manner upon persons who had begun, or were expected by him, to act against him, in the character of prosecutors: the exertions made by him for withdrawing his person and property out of the reach of justice, and in the meantime for concealing himself: the motives by which he was stimulated to the commission of the offence: the length of time during which these motives had been operating on his mind, and the turn which this disposition of mind had, on different occasions, given to his conduct: the language which it had occurred to him to hold to different persons on different occasions, whose questions or observations he had to encounter in relation to the principal facts of the offence, or any other facts whose connexion with it might, to his apprehension, be discovered or suspected: the silence he ventured or was forced to maintain on some occasions; the false or evasive answers it occurred to him to give on other occasions; with the self-contradictions which, on some of those occasions, he fell into in consequence: the memoranda he had made of some of the facts connected, in one way or other, with the criminal enterprise; the letters he had written to or received from associates; and his alarm under the apprehension that some of these documents had fallen into the adversary’s hands: his fears under the apprehension that among his consultations with his confederates there were some that might have been overheard by persons, through the evidence of whose discourse they would not fail to be conveyed to the notice of the adversary: his fears that among his associates there were some who either already had been, or soon would be, unfaithful to their trust.

Not only so, but a fact that in itself has no perceptible connexion with any criminative fact, may, by accident, operate to the prejudice of the defendant; and in that respect the discourse, by which the existence of that fact has been stated by him, may operate against him in the character of confessorial evidence.

An extraneous witness, speaking to a supposed confessorial discourse supposed to have been held in his presence by the confessionalist, mentions a variety of facts as having on that occasion been stated by the confessionalist—facts, of the existence of which, but for such confessorial discourse, such reporting witness could not have been apprised. A number of facts—(suppose) transactions of the confessionalist himself, connected or not connected with the criminal enterprise—are thus reported as having, on the occasion in question, been reported to the witness by the confessionalist; the existence of these several facts is put out of doubt by other witnesses coming forward, and deposing, in the character of percipient witnesses, as to such facts as, in the character of evidentiary facts, point directly at the defendant’s criminality:—the report made of them by the confessionalist to the reporting witness assumes directly and obviously the character of confessorial evidence. But even those which have no such operation serve to confirm the veracity of the statement by which the reporting witness reports the tenor or the purport of the already-described portion of the defendant’s confessorial evidence. Moreover, in the same proportion in which it tends to demonstrate the trustworthiness of the evidence of the reporting witness—of the whole body of it taken together—in that same proportion it evidently operates in prejudice of the defendant’s cause. It therefore comes, as incontestably as the other branch, though not so obviously, under the character of confessorial evidence.

In the trial of John the painter, the incendiary who in 1777 burnt the rope-house at Portsmouth, the conviction was grounded principally on the defendant’s confessorial evidence, as reported by an extraneous witness, Baldwin; and, of the evidence given by other witnesses, a great part consisted in confirmatory statements of other facts, in themselves immaterial, but stated by the defendant in the confessorial narrative given by him to that reporting witness. Yet on this occasion the advocate for the prosecution boasted much, and not without reason, of the probative force—of the conclusiveness, of his evidence.

[* ]Confessorial evidence, when not plenary per se—in itself—may yet be so by relation. It is so by relation when it refers to some other discourse in which whatever is wanting to make it plenary is contained.

Thus, when, in the form of English law, at the opening of the trial, the question is put to the defendant, How say you, guilty, or not guilty?—if the answer be, Guilty, the confession is plenary by relation; for it refers to the full description of the offence, as contained in the instrument of accusation called the indictment.

[* ]In the case of John the painter, who (anno 1777) was hanged for setting fire to a public storehouse at Portsmouth, under the notion of rendering service to the American states on the occasion of the war which terminated in their independence, the principal part of the evidence was of this complexion.

So in the case of Crossfield, who was tried on a charge of being concerned in a plot for the assassination of his late Majesty by means of an air-gun.

[* ]There is a well-known (though not very well authenticated) anecdote of Rabelais, in which it is narrated, that being anxious to visit Paris, and not being possessed of sufficient funds to gratify his wish, he forged a plot against the life of the King, the Queen, and the Duke of Orleans, and provided self-inculpative testimony against himself, sufficiently strong to occasion his being sent to Paris at the expense of the government.—Ed.

[* ]A story current enough, but of which the source cannot be distinctly recollected, may serve as an exemplification of the field of enterprise in this line, which has been laid open by nature (too well seconded, as will be seen, by the blundering hand of English law) to unprincipled speculators. A man wishes to secure to himself, in the way of marriage, a hand, of which, by direct and honourable means, he has no sufficient hope. His object is, by destroying the reputation of his intended victim, to deprive her of all hopes that do not centre in himself. He takes the requisite measures: he bribes servants; he provides himself with the requisite equipment: in the costume of a happy lover, he shows himself to observers, casual or posted, through the window of her bed-chamber, as Galatea showed herself:—Et fugit ad latebras, et se cupit ante videri.a

The outline thus delineated, the particular object, and the details of the plan, will (as already hinted) admit of considerable diversification. To the value of the prize obtainable at the price in question, there are evidently no determinate limits; and this, whether pecuniary profit (to the amount of which there is also no limit) be or be not taken into the account.

As to the price in the way of punishment; few if any are the existing systems of legislation that have, with any sufficient degree of consistency and uniformity, raised it to a pitch too high to find bidders. For seduction, under English law at least (which, in everything that concerns marriage, indicates for its author some old woman in her dotage.) for seduction, the maximum would be but a flea-bite: punishment as for capital violence, the charge being of the adventurer’s own framing, he will know better than to subject himself to.

To any bosom in which either love or money has infused the spirit of enterprise, the Chancellor (who fancies himself, or pretends to fancy himself, the guardian of female orphans—who fancies, or pretends to fancy, his authority the bar to ill-assorted marriages, the protector against deception or imprudence) is but a laughing-stock. Ever ready to punish, he is ever impotent to prevent: powerful to do mischief, he is impotent to do good; that good always excepted, of which his professional brethren are the sharers, and which consists in distributing among them, in due form of practice, a portion of the orphan’s substance.

[* ]That a certain degree of particularity in these respects is desirable—desirable for the reason above given,—has been sufficiently observed by the founders of this part of the English law. They therefore required, that, in the instrument of accusation, it should be observed; and so serious were they in the requisition, as to determine, that where the requisition to that effect is not complied with, the defendant, guilty or not guilty, shall be acquitted. That causes will often happen in which, though delinquency may be capable of being established, and by abundantly sufficient evidence, that same degree of particularity cannot possibly be exhibited,—was another observation which, true as it is, yet, at the time of establishing that requisition, they failed to make. Compliance with the requisition was impossible; but the impossibility of complying with it was no bar to the establishment of it. The requisition had not been long enforced, before the impossibility of complying with it, consistently with the conviction of the guilty, was discovered. A remedy was accordingly applied. What was that remedy?—Converting a court of penal justice into a school of necessary falsehood—a school in which the scholars were not merely taught and invited, but by main force compelled, to defile themselves with that vice: no falsehood, no justice. A day must be specified; but it need not be the true one.a A day must be specified; but that the fact happened on that day, is not necessary to be proved: another, any other, will do as well. You must say you know the day, and say what that day is: you must so know it, when you know it; you must say you know it, when you know nothing of the matter. But, provided you utter this falsehood, you shall not be prejudiced by it: from falsehood, nothing—it is from truth alone that you have anything, to fear: speak falsely, you are safe; speak truth, you lose your cause.

This is but one instance out of a multitude, in which, by aiming at a degree of precision beyond what the nature of the case admits of, they lost the benefit of such degree of precision as the subject does admit of: they lost precision altogether: they threw away precision, and embraced falsehood in the room of it.

[* ]Book II. Chap. IX.

[* ]Of the mode of signifying will, denoted by the word interrogation, the object is to obtain, at the hands of the person interrogated, some token, such as, in relation to the particular object on the carpet, shall serve to express and make known the state of his mind. But interrogation—interrogation in mood and figure—is not the only mode of communication, is not the only form of discourse, by which an effect of that description is capable of being accomplished.

When, two other persons being present, Titius hears (being at the same time known to hear) one of them, in discourse with the other, speak of him (Titius) as having done such or such an act, in relation to which it concerns him in point of interest to be thought to have done it or not to have done it,—to have engaged, for example, in a plan of delinquency, in this or that shape, or (delinquency out of the question) to have made a promise—a deliberate promise—intended to be binding, to such or such an effect;—if it be material to him not to be believed to have done that which he is so stated to have done, he feels himself of course called upon to contradict the assertion—called upon with a force neither greater nor less than if an interrogatory to the same effect had been addressed to him.

On a former occasion (that of suggestive interrogation.) we have seen interrogation involving in it a proposition of the assertive kind (Book III. Extraction, Chapter III.;) here we see an assertion standing in the place, and performing the function, of an interrogatory; so variable and interchangeable are the different forms of language.

It is not, however, to any such oblique and uncertain modes of signifying will, that the mouth of authority—judicial authority—will naturally, or even consistently, have recourse. Accordingly, where, in the character of a security (a judicial security) for correctness and completeness in a mass of evidence, interrogation was brought to view, no mention of any such oblique mode of interrogation as is here denoted by the term quasi-interrogation, was there made.

In a sort of cases the description of which in general terms may not be easy, but which are little exposed to misconception in any individual instance, silence is to a proverbial degree recognised to be equivalent to consent or assent: to consent, if the effect of the quasi-interrogation be to call for an expression of will; to assent, if it be to call for an expression of the state of the intellectual faculty.

To produce on the part of the person in question a call for a declaration of the state of the will, or of the understanding, as the case may be—a call no less imperious than that which would have been produced by interrogation,—it is not necessary that the quasi-interrogative discourses should have been directly addressed to him; or that, on the part of the quasi-interrogator, there should have existed so much as a desire to obtain an answer, express or virtual, from the person thus indirectly interrogated. What is material to him, is to be believed, or not to be believed, to have done, or to be doing, or to be about to do, what by the discourses in question it is supposed and assumed that he has done, is doing, or is about to do. Whether, on the part of the author of that discourse, there exists any desire to be informed in relation to such his supposed conduct, past, present, or future, may to him be a matter of indifference: the interest which he has in being believed so to have done, or not to have done,—the call made upon him accordingly in point of interest to declare yes or no,—is not varied by any such difference.

[* ]What one man says of another in his absence is not evidence against that other, whether he be his accomplice or not. But if a criminal makes a confession, and implicates another party as an accomplice, who is present at the time, then the confession is evidence against the accomplice; because he has an opportunity of denying the truth of the statement as far as he is concerned, or of explaining it. However, in cases of conspiracy, any act done or statement made by one of the conspirators, in pursuance of their common object, is evidence against all the conspirators, whether present or not. 2 Russ. 570. 1. Phil. Evid. 76. 1 East. P.C. c. 2, § 37. 2 Stark. 401. R. v. Stone, 6 T. R. 527. 24 Howell’s St. Tr. 437, 451.—Ed.

[† ]See Book VI. Makeshift, Chapters on Casually-written Evidence and Hearsay Evidence.

[‡ ]That is to say, in cases which afford no individual specially injured.

[* ]See Book IX. Exclusion.

[† ]See Vol. VI. p. 382, note 14.

[* ]Bolingbroke, after his partial pardon and return to England, being suspected of harbouring a person accused of a state crime, his house, and even his bed-chamber, as he was lying in his bed, were searched by the ministers of justice. Traitorous bedfellow with him he had none: a bedfollow, however, he had—a female, whose reputation would have been ruined by the disclosure. Confusion, more or less, he could not but have betrayed. Had the search ended there, this confusion would naturally and properly have been regarded as circumstantial evidence of the crime he was suspected of. His presence of mind saved him from that mischance. Uncovering enough of her person to indicate the sex, without betraying the individual, he preserved himself as well from the imputation of the crime of which he was not guilty, as from the collateral misfortune which that imputation was so near bringing on his head.

[† ]Chapter I.

[‡ ]The physical symptoms with which theemotion of fear has been known to be accompanied, and of which it may be considered as productive, may be thus enumerated. But amongst them are some which seem indicative of a degree of emotion so high as to be seldom, if ever, produced by the fear of an evil so distant, and so far from being certain, as the evil of a punishment which for its infliction depends on the hand of law.

In some of these instances, the individual is purely passive; no voluntary action, no exertion of the will being necessary, nor, in some of the instances, so much as competent, to the production of the physical symptom.

• 1. Blushing.
• 2. Paleness.
• 3. Trembling.
• 4. Fainting.

• 1. Sweating.
• 2. Involuntary evacuations.

• 1. Weeping.
• 2. Sighing.
• 3. Distortions of the countenance.
• 4. Sobbing.

• 1. Starting.
• 2. Pacing.

• 1. Exclamation.
• 2. Hesitation.
• 3. Stammering.
• 4. Faultering of the voice.

In some of the above instances the physical symptom is altogether independent of the will, it being altogether out of the power of the will to give birth to it. In other instances, though the production of it is not altogether out of the power of the will (and is accordingly effected without the existence of the emotion, in theatrical imitations,) it either takes place without the action of the will, or becomes the cause of the action of the will before it becomes the effect of it.

Of these symptoms, several will be seen to be common to the three emotions of fear, grief, and anger: some of them to result more naturally from either of those other emotions than from fear.

Physical phenomena of this kind, in so far as they point whether to fear or any other emotion as their psychological cause, may be distinguished by the common appellation of pathological evidence.

[*] “Infandum, Regina, jubes renovare dolorem.” Æneas was not upon his trial: but the emotion here was not fear, but grief.

• “—Quis talia fando
• “Temperet ā lacrymis?”

[* ]Chap. III. § 5.

[* ]Love, as well as criminality, seeking clandestinity, servants’ lovers are apt to be taken for thieves: thieves, on their part, endeavour to pass for lovers.

[† ]See, once more, the story of Joseph and his brethren (supra, pp. 16, 17.)

[‡ ]In the vicinity of London, not many years ago, a ghost of this sort was shot dead, and the shooter tried for his life. [This was in 1804. The neighbourhood of Hammersmith had been alarmed by the appearance of a ghost, and Francis Smith, an exciseman, determined to shoot him. While he was on the watch, an unhappy miller passed by, and mistaking him, from the whiteness of his apparel, for the person who was playing the ghost, he unfortunately shot him dead. Smith was tried at the Old Bailey Sessions for murder, and the jury, in the first instance, found a verdict of manslaughter; upon which the judges said, that the facts proved amounted in law to murder, and sent the jury back to reconsider their verdict. They ultimately found Smith guilty of murder, and sentence of death was passed upon him by the recorder. This sentence was afterwards commuted to one year’s imprisonment, on the application of the Lord Chief-Baron to the Home-Office. (See Sessions Papers, and European Magazine.)—Ed.]

[* ]London pickpockets have been known at places of public amusement, to put the empty purses of the persons they have been robbing into the pockets of innocent persons near them, in order that they might accuse them of being the thieves, in case they themselves were taken into custody.—Ed.

[† ]See, again, the story of the Little Hunchback (p. 11, note*.) A body, supposed to be dead, is transferred from neighbour to neighbour, always with the utmost secrecy, under the apprehension of the suspicion that might be produced by it, in the event of a visit from the officers of justice.

[* ]Eloignment, a word adopted from the French into English law language, is wanted, together with its conjugates cloigner, to eloign, in current language. For eloigning a man, the general stock of the language has no better expression than getting him out of the way.

Tampering—viz. with evidence—is a term applied as well to the endeavour to intercept oral testimony, with the consent of him who should have delivered it, as to the endeavour to procure by subornation false testimony, from one who otherwise would not (it is supposed) have delivered any testimony at all, or would not have delivered other testimony than what was true.

Labouring and embracing are words used in law language as synonymous with tampering, but only where the persons tampered with are considered as invested, or about to be invested, with the character of jurymen.

By tampering seems to be meant, an endcavour to cause the person in question to act, on the occasion in question, any part contrary to what is considered as being his duty with reference to the ends of justice. In this sense, it seems applicable with equal propriety to the situation of any person whose duty it is considered to be, in virtue of any function (permanent or occasional,) to render his services in any way conducive to these ends: to the situation consequently of judge (permanent judge,) juryman, or subordinate minister of justice; or in the case of any officer considered in the light of a public officer, prosecutor as well as witness.

As to the means whereby a man may be caused to swerve from the line of his duty, whether by eloigning him (getting him out of the way) or otherwise, they seem comprisable under three heads, viz. corruption, deception, and force: including under the notion of force, as well psychological (i. e. fear of evil) as physical.

[† ]For a list of these operations, see Scotch Reform (Vol. V.) Table I. Col. iii.

[* ]Considered as a means of avoiding justiciability, the effect of exprovinciation will be the greater, the greater the obstruction offered by it to the power of justice, whether by means of local distance, or by means of independency of jurisdiction.

Of the mode and degree of the obstruction thus capable of being opposed, the diversifications are infinite: particularly in modern times, since it has been a fashion among the powers of Europe to comprise each of them within its grasp the most distant parts of the globe.

The obstruction opposed by independency of jurisdiction, being a psychological cause, is removable: the obstruction opposed by local distance, a physical cause, is inexorable.

Accordingly, though in general the obstruction opposed by expatriation will be greater than by exprovinciation, yet, in some instances, that which is opposed by exprovinciation will be the greater. In the instance of some offences (forgery in particular, in which public credit all over the globe beholds an enemy,) the great European States, Britain not excepted, have surrendered each to the justice of the other its supposed delinquents. In so far as this disposition prevails, the obstruction given to the course of justice by expatriation—for example, from London to Calais or even to Paris—may not be so great as that opposed by exprovinciation from London to the Orkneys, or though it were no further than to Edinburgh; not to speak of the West or East Indies.

Person and property are not the only objects on which, for the purpose of securing effective justiciability, the law has it in its power to take hold. Over and above these corporeal objects, there remain two incorporeal ones. viz. reputation and condition in life, by means of which the feelings of individuals are exposed to be wrought upon by the force of the law, as well as by that of lawless injury.

But person and property are the only objects which it is ever in the power of an individual, in case of delinquency on his part, to withdraw out of the power of the law: in spite of his utmost efforts, reputation and condition in life continue subject to it.

Even in regard to property, the extent of the power which it depends on the individual to exercise over it, in spite of the law, or without its assistance, is subject to very extensive limitations. To immoveables it does not extend: nor even to money or moveables in any case where, his power depending upon the consent of other persons, that consent is withholden or refused. Hence the influence, in some cases irresistible, in others no more than ideal, of the judgment of outlawry;a by which, amongst other penal consequences, the defendant stands deprived in a considerable degree of that security for his property, which depends upon the protection that would be otherwise afforded him by the law.

[* ]Note here, that if, instead of any of the specific modes of designation here employed, the general expression (avoidance of justiciability) taken to serve as a title to this chapter, be employed, the inference in question is considered as already established.

In the case of each of these criminative circumstances, fear (viz. fear of the power of the law) is the relatively principal fact immediately indicated. Were they respectively present to the senses of the judge,—as are, in case of oral interrogation, the physical modifications of passive deportment which constitute the pathological evidence of that emotion, and the modifications of self-disserving testimony extractible by interrogation,—they would occupy the same station in the chain of suppositions. But, scarcely being in any instance so present, they cannot come to his cognizance but through the lips or pen of some deposing witness: by which means a fifth link is added to the evidentiary chain, as in case of any other inculpative fact considered as having been extra-judicially observed.

In this case, fear, and avoidance of justiciability, may, though not synonymous, be employed indiscriminately to represent the link in question in the chain of suppositions. It is only in so far as it is indicative of fear (fear of evil as about to be suffered from the hand of law,) that avoidance of justiciability can operate as a criminative circumstance: and, to weaken the inference thus drawn, no other infirmatives seem applicable than what have been already brought to view as serving to weaken the probative force of fear itself, considered in the light of a criminative circumstance.

[† ]Under the penal procedure of the Roman law, or, to speak more accurately, of the system which, before the Revolution, existed in France, the probative force of the inculpative circumstances of this class should accordingly, it should seem, be less than under the English.

For the purpose of computing the average duration of a penal suit, the collection of trials entitled Causes Celibres (thirty volumes in closely-printed 12mo) was examined. It was not in every instance that the duration of the suit could be ascertained: in the instance of those in which it was capable of being ascertained, the average duration turned out to be near six years. In these, it is true, the intricacy of the cause was above the ordinary pitch. But under English procedure it would be difficult, perhaps impossible, to find a penal cause, on the occasion of which, down to detinitive judgment, the provisional imprisonment had lasted a fourth part of that time.

In penal cases, the procedure of the Roman school does not admit of discharge on bail with near so much facility as the English.

In England, in a case not bailable, the criminative force of the circumstance in question may be calculated, and with some degree of precision, from geographical data. In the class of causes most highly penal, in London and Middlesex, justice is administered in about forty-eight days out of the three hundred and sixty-five; in the other counties, with the exception of the four northern ones, in about four out of the three hundred and sixty-five; and in these northern ones, in about two out of the three hundred and sixty-five.a

A supposed duellist, for example, who has killed his man, is in a state of expatriation, latency, or even latitancy. In London and Middlesex, the criminative force of any one of these symptoms of fear (the possible chance of being let out upon bail by the Court of King’s Bench, being laid out of the case as not capable of being brought into calculation) will be a little less than four times as great as in any other of the southern counties, a little less than eight times as great as in any one of those four northern counties.

[* ]How acutely sensible must a celebrated French lawyer have been to the defects of the system of procedure established in his country, when he said—“Je fuirais, si l’on m’accusait d’avoir roh les cloches de Notre Dame!” In such a state of things, it is evident, the infirmative force of the counter-probability which we have termed contemplation of judicial vexation notwithstanding innocence, is so strong as entirely to destroy the probative force of the circumstance of latitancy, considered as evidentiary of delinquency.

[* ]Unfortunately, under English law, no such suppositions are realized; a system of sham notices being among the devices whereby the ends of judicature are pursued, under the pretence of pursuing the ends of justice. On this as on so many other occasions, the inquiries which common sense would dictate, and common honesty pursue, legal policy forbids. Without any expense of thought, from latency latitancy is inferred, and from latitancy delinquency; and, though not absolutely without other evidence, yet, without any evidence of the nature of which it is possible for the supposed delinquent to be apprized. If a bill of indictment, after evidence heard thereon, is found true by a grand jury sworn to secrecy, a writ called a capias issues thereupon; and, in consequence of that writ, after a series of sham notices read by a man to himself in a private chamber, judgment of outlawry, in which conviction is included, is pronounced of course. [See p. 50, sub-note a.]

[* ]See below, the chapter (Chap. XVI.) on Improbability and Impossibility.

[* ]See Introduction to the Principles of Morals and Legislation, Vol. I. Where a multitude of acts of the same complexion are considered as following one another on the part of the same person (especially if in a series extending over a considerable length of time,) the word habit is applied to the case. From a single act, disposition is apt in some cases to be inferred: à fortiori, from habit.

[† ]Thus in English. In French, caractère seems scarcely ever to be employed to denote anything but the disposition itself: where the opinion entertained of it by others is meant to be brought to view, the word réputation is employed.

[* ]See farther on, Chap. XVI. § 11.

[† ]In English practice, the only counter-evidence which is allowed to be produced is such as may be extracted from the witnesses, who come to speak in favour of the prisoner’s character, in cross-examination.—Ed.

[* ]The distinction between general and special is applicable to the circumstance of station, as well as to disposition and character. Laying out of the case the general distinction between high and low, inferences of an inculpative nature seem to have been deduced from the consideration of this or that particular station or occupation by English law.

Thus, on the ground of supposed hard-heartedness, butchersa have been considered as being (in capital cases at least) excluded from the capacity of serving as jurymen: and, judging on this principle—supposing an act of homicide, or offence attended with bloodshed, committed, and, as between two men, the one a butcher, the other not, the question, which was the man? hanging in suspense—the answer would, if consistent, be, the butcher. It seems questionable, however, whether, upon consulting the annals of criminality, this presumption would be found to have any ground in fact. Against soldiers and sailors it might be supported, perhaps, with a closer appearance of reason; not to speak of surgeons; and even in these instances it seems questionable whether (numbers being taken into the account) the presumption would receive any support from experience.

In a case where, literally speaking, blood is supposed to have been shed, the presumption would, with better colour of reason, plead for the fixing upon the butcher in preference to the non-butcher for the delinquent, than for the exclusion of the butcher from the faculty of officiating in the character of the occasional sort of judge called a juryman. It seems altogether impossible to find a reason why, in a capital case more than in any other, a butcher should be more disposed than another man to do injustice; altogether easy to find a reason why a lawyer should. Lord Chancellor Jefferies and Judge Page, of hanging memory, were not butchers.

[* ]The money, having, according to the evidence on that side, been delivered, by being carried, by the same person, at thirteen different times, a certain distance within six hours,—could not, within that time, have been carried to that distance.

[* ]But, for a practical purpose, such as that of judicial decision, the nature of the case seems to afford a particular mode of expression, an account of which has been already seen in a chapter in the introductory part of the work. (See Vol. VI. p. 225.)

[* ]A number of facts, each of which taken by itself proves nothing, or next to nothing, but the probative force of which, when alltaken together, amounts to something considerable, constitute what is called in common language a chain of circumstantial evidence.

In this instance, however, the word chain is used in a different sense from that in which it has already been, and will hereafter be, employed in this work.

Where the phrase chain of evidence, or any phrase of analogous import has been made use of in the present work, it has always been intended to designate a series of facts, each of them standing in the relation of an evidentiary fact with respect to that which stands next to it in the series. If A be evidentiary of B, B of C, and C of D, then A, B, C, and D constitute, in this sense of the word, a chain of evidence.

Such combinations or series of evidentiary facts have already been brought to view under the name of concatenated facts,—facts constituting a chain of evidence; viz. combinations of psychological facts thus connected in a chain. Other chains of the like nature will hereafter be necessarily brought to view; chains of oral evidence in the form of hearsay evidence; chains of written evidence in the form of transcriptural evidence. The more mouths a narrative has passed through, the less trustworthy it is universally undestood to be: the more copies have been taken the one from the other of a written original, the less trustworthy the last of them is understood to be.

To none of these instances has the metaphor, the necessary metaphor, of a chain, been applied as yet in jurisprudential language. Nor yet is the figure of speech, or the term, by any means unusual in jurisprudential language. It is, on the contrary, in every day’s use. But the occasion on which, and on which alone, it is in use, is so widely different, that the practical consequences drawn from the use of it are directly opposite. On the occasions above brought to view, the greater the number of links there are in the chain, the weaker it is: on the occasions ordinarily in view, the greater the number of links there are in it, the stronger it is.

On the new occasions on which I have here found it necessary to employ the metaphor, the use made of it is more conformable than on the already customary occasions, to the nature of its material archetype. Take an iron chain, the more links you add to it, the weaker you will make it, not the stronger: and by adding link to link, you will at last make it break by its own weight. If, then, it be our wish to avoid confusion and self-contradiction, we must by some means or other contrive to express the distinction between the two opposite kinds of evidentiary chains: styling the one, for example, the self-infirmative chain, we may style the other the self-corroborative.

Exemplifications of the self-corroborative chain of evidence, are, in a form more or less distinct, in the mind of almost every man, and require only to be fixed by words. In the course of his progress to and from the scene of action, lawful or unlawful, a man is seen by different persons at different places. The respective testimonies of these several persons, each of them declaring the facts present to his senses, constitute together what has been usually and hitherto exclusively understood by a chain of evidence. This is what I call the self-corroborative chain.

Let it be a question, for example, whether on a particular day Titius went from London to Portsmouth; and le it be out of doubt, that on that day at six in the morning he was seen on horseback at one of these places, to wit, London, and that by one witness it is proved that at six o’clock in the afternoon he was seen at Portsmouth. It is evident, that, the greater the number of intermediate places I can prove him to have been at, at correspondent hours, the stronger the persuasion I shall produce in the mind of the judge of the existence of the principal fact in question, viz. that of Titius’s having gone that day from London to Portsmouth. The journey in question will thus be proved upon him by a chain of evidence composed of as many links (say six) as between those two places there are stages at which he was seen by so many different persons. Double the number of the stages, and thence of the witnesses; instead of six, call them twelve; you double the strength of the stream of evidence.

In another case (instead of my six witnesses, each of whom saw Titius at a different stage in the road between London and Portsmouth,) my evidence consists of the alleged testimony of six alleged witnesses, of whom the first (as I allege) saw Titius at the time in question at Portsmouth, he having said as much to the second, who said as much to the third, and so on to the sixth, being the witness I produce in court to prove the existence of Titius at Portsmouth at that time. It is manifest enough that the testimony of each of these witnesses loses more or less of its strength by their being disposed in a chain thus constituted: and that the chain, if it consisted of the testimonies of twelve such witnesses instead of six, would, instead of being twice as strong, be twice, or perhaps more than twice, as weak as before.

In conclusion, the distinction between the self-infirmative chain and the self-corroborative chain of evidence appears to be this. In the former case,—so many witnesses, so many intervening mediums interposed between the source of evidence and the faculties of the judge: and, the fact so evidenced being but one and the same fact and the source from whence the evidence issues being but one source, the testimonies of all these witnesses put together compose but one article of evidence.

On the contrary, in the case of the self-corroborative chain, so many distinct evidentiary facts, so many distinct sources of evidence.

[* ]Vide supra, Vol. VI. p. 382, No. 13.

[* ]This judge was Lord Chief-Justice Hale, who laid down this dictum, in consequence of two cases: one is mentioned in Coke’s P. C. cap. 104, and the other happened in Hale’s remembrance, in Staffordshire. The first case is thus stated—“An uncle who had the bringing up of his niece, to whom he was heir-at-law; and, while he was correcting her for some offence, she was heard to say, Good uncle, do not kill me. After which time the child could not be found, whereupon the uncle was committed upon suspicion of murder, and admonished by the justices of assize to find out the child by the next assizes: against which time he could not find her, but brought another child as like her in person and years as he could find, and apparelled her like the true child; but on examination she was found not to be the true child: upon these presumptions he was found guilty, and executed. But the truth was, the child being beaten, ran away, and was received by a stranger, and afterwards, when she came of age to have her land, came and demanded it, and was directly proved to be the true child.” The second case is as follows: “Where A was long missing, and upon strong presumptions B was supposed to have murdered him, and to have consumed him to asbes in an oven, that he should not be found; whereupon B was indicted of murder, and convicted and executed: and within one year after, A returned, being indeed sent beyond sea by B. against his will.” 2 Hale, 290.

Although it is the general rule of law, that the body must be found, it is not acted upon without qualification. See Rex v. Hindmarsh, 2 Leach, 571.—Ed.

[† ]The evidence so anxiously looked out for by this worthy judge was of the sort which the Romanists have in view by the term corpus delicti—the body of the offence—in so far as they have anything determinate in view. The body of the offence; meaning the fact of the offence: evidence of the fact of the offence,—evidence of that sort by which the fact of the offence may be indicated, without affording any indication of the person of the offender. In the case of real evidence, the indication thus afforded is frequently, though not constantly and necessarily, thus confined. In the case of testimonial evidence, the most natural case is, that the fact of the offence and the person of the offender should be comprised in the same narrative. That (in addition to direct testimonial evidence) circumstantial, and more particularly real evidence, is highly desirable, and ought accordingly to be looked out for, especially in case of homicide, is evident enough. But a rule requiring it as indispensably necessary in all cases, would, besides the unreasonableness of it, be inconsistent with the necessary practice in regard to a large division of crimes. It is of the nature of all verbal offences—offences committed by mere words—not to be productive of any real evidence.

[‡ ]Co. Litt. 6, b.

[∥ ]See Vol. VI. p. 231.

[* ]Here would come in one use of a table of circumstantial evidence. On the supposition of criminality, criminative circumstances of the description in question, could scarcely fail to be accompanied by a variety of other circumstances of the same tendency: apposite motive, apposite disposition, previously-known enmity, preparations, previous threats, confessorial discourse, criminative deportment (contemporary or subsequent;) all these articles of psychological evidence, under all or any of their numerous modifications; not to mention such further real evidence as might have been afforded by a transaction so described.

One mode, and that not a very unobvious one, of throwing light upon so dark a subject, would have been to subject the accused to a judicial examination. But this, for any other purpose than that of judging whether to commit the man or let him out to bail, an English lawyer (if not then, at least now) would start from and be shocked at. Nemo tenetur seipsum accusare. Pronounce a man guilty without examination? Yes: in this consists English mercy. Examine him, to judge whether he be guilty or not?—No: the idea is not to be endured.

[† ]So lately as the year 1824, in an action for debt on simple contract, a defendant waged his law, as it was called, and applied to the Court of King’s Bench to determine what number of compurgators he ought to produce. But the plaintiff abandoned the action, and there the matter ended, King v. Williams, 2 B. & C. 538. This form of trial was abolished by the 3d and 4th Will. IV. c. 42.—Ed.

[‡ ]Heinecc. ad Pandect. lib. xii. tit. ii. pars iii. p. 292 (edit. 1728.)

[* ]Moliere’s Avare.

[† ]In addition to this error, comes that of forbearing to give justice the benefit of cross-examination, together with the other securities for trustworthiness that stand in connexion with that essential practice. But this latter is an error that belongs not to the present head. See Book II. Securities.

[‡ ]See Book IX. Exclusion.

[∥ ]The following is the whole of the quaint passage partially quoted in the text.—Ed.

“And first of records: those are the memorials of the legislature, and of the King’s Courts of justice; and are authentic beyond all manner of contradiction; they are (if a man may be permitted a simile from another science) the proper diagrams for the demonstration of right: and they do constantly preserve the memory of the matter, that it is ever permanent and obvious to the view, and to be seen at any time in all the certainty of demonstration: inasmuch as the record, as is observed elsewhere, can never be proved per notiora; for demonstration is only appealing to a man’s own conceptions; which can never be done with more conviction than where you draw the consequence from what is already a concessum: and consequently there can be no greater demonstration in a court of justice, than to appeal to its own transactions.—Gilbert’s Evid. p. 7.

[* ]The authorities do not go the length of showing that records are excluded as matter of evidence in any case, but only that they are not to be taken as conclusive of the truth of all the allegations contained in them,—as for instance, with relation to matters which were neither material nor traversable upon the issue. Co. Lit. 352, b. In criminal cases, if the jury give a general verdict where the felony is proved at another day than that laid in the indictment, then the party may falsify. But if the time when the fact was committed is found by the jury, all parties are concluded. Gilb. Ev. 870.—Ed.

[* ]See Book IX. Exclusion.

[* ]Instances have occurred, where,—a forged instrument having been employed in the execution of a plan of depredation,—the employment of a paper with a wrong stamp has afforded the means of detection, by bringing to bear against the body of authenticating evidence a mass of de-authenticating evidence not to be resisted. On a species of stamped paper not in use (for example) till the year 1800, a deed was written, purporting to have been executed in the year 1799. The non-existence of any such paper at the time of the date being a fact of the utmost notoriety among the officers of the stamp-office,—the testimony of any one of them, being thus placed out of the reach of all effectual temptation to mendacity, would be sufficient to outweigh the opposite testimony of any producible number of ordinary witnesses. [“In an action of improbation of a writ, which the Lords were convinced was forged, but puzzled for want of clear proof, the Lord Binning took up the writ in his hand, and holding it betwixt him and the light, discovered the forgery by the stamp of the paper.” Forbes’s Journal of the Session. Preface, xxvii.—Ed.]

[* ]Extract from the printed pamphlet on Circumstantial Evidence, occasioned by Donnellan’s case:—

“We hear this observation everywhere echoed: ‘Circumstantial evidence is the best, for circumstances cannot lie.’ But if we would give ourselves the trouble to bestow a little consideration upon the subject. I think we shall be convinced that circumstantial evidence is not the best, and that circumstances can lie. There are circumstances which cannot lie, where the conclusion or inference is necessary and unavoidable; but where the conclusion or inference is contingent, circumstances may lie; that is, we may draw an erroneous conclusion from the given facts. The learned Matthæus clearly describes this distinction:—‘Argumentum porrò necessarium vel contingens est: necessarium, cujus consequentia nicessaria est, veluti coivisse eam quæ peperit: contingens, cajus consequentia probabilis est, veluti cædem fecisse, qui cruentatus est; Atalantam virginem non esse, quòd cum adolescentibus spatietur sola per sylvas.’ In the first case, one fact is a certain demonstration of the other; but in the second, the circumstances must frequently lie, when they charge with murder a person stained with blood, or Atalanta, from such companions and conduct, with a want of chastity. But he proceeds to observe,—‘Contingentia verò quanquam singula fidem non faciant, plura tamen conjuncta crimen manifestare possunt. Rem uno atque altero exemplo declarabimus. Occisus est Kalendis Mævius: Titius perempti inimicus fuit; eidem sæpius non solum interminatus, sed et insidiatus est. Cum deprchanderetur iisdem kalendis, in loco cædis, cruentatus, cum gladio cruento, ad mensuram vulneris facto, toto vultu expalluit, interrogatus nil respondit, trepide fugit. Hic singula quidem argumenta infirmiora sunt, universa tamen cædis auctorem Titium evidenter designant, rectèque Duarenus duxit, non dubitaturum se hunc reum carnifici jugulandum dare.’—Tit. 15, c. 6. Yet Duarenus might have condemned and executed an innocent man. Every one of these circumstances must be proved by positive witnesses, who may be either wicked or mistaken; but even if they are pure and correct, the conclusion we draw from the facts disclosed may be erroneous. So that in circumstantial evidence there must of necessity be more chances for error than in positive evidence. If any number of witnesses should swear they saw the prisoner draw a reeking sword from the side of a dead man, we have not the same degree of certainty that he either murdered or killed him, as if the same witnesses had sworn they had seen him run it through his body. It affords a violent presumption; but still, it might have been the friendly act of an innocent man, who had accidentally passed that way after the murder was committed; or even if it was the prisoner’s own sword, it might have been snatched from his side, and plunged into the body of the deceased by some one who had escaped; or the deceased might have borrowed it, and have fallen upon it himself. All human testimony is nothing more than a high probability; and it is true that circumstantial evidence in one case may produce a higher degree of it, or more nearly approach to certainty, than direct and positive evidence in another.

“That both positive and circumstantial evidence may fail, will appear from the following cases; the first is in the chronicle of the Gentleman’s Magazine for Oct. 1772; the other is from the 5th vol. of Causes Célebres, p. 438, where several more such stories are related.

“ ‘Sept. 14, 1772, came on, at the sessions in the Old Bailey, the trial of one Male, a barber’s apprentice, for robbing Mrs. Ryan, of Portland Street, on the highway, on the 17th of June last. The witnesses swore positively to the identity of the lad, and the whole court imagined him guilty. He said nothing in his defence, but that he was innocent, and his evidences would prove it. His evidences were the books of the court, to which reference being made, it appeared that on the day and hour when the robbery was sworn to be committed, the lad was on his trial at the bar where he then stood, for another robbery, in which he was likewise unfortunate enough to be mistaken for the person who committed it; on which he was honourably acquitted.’

“ ‘Voici un autre fait, dont j’ignore l’époque, et qui m’a été transmis par la tradition. Avant qu’on eût rebáti cette longue suite de maisons qui bordent la place Saint Michel à Paris, en face de la rue Sainte Hyacinthe, une marchande veuve et ágée occupoit, au même endroit, une petite boutique, avec une arriere-boutique où elle couchoit. Elle passoit, dans le quartier, pour avoir beaucoup d’argent amasse. Un seul garçon composoit, depuis longtems, tout son domestique. Il couchoit à un quatrieme étage, dont l’escalier n’avoit point de communication avec l’habitation de sa maitresse; il étoit obligé, pour s’y rendre, de sortir dans la rue; et lorsqu’il s’alloit coucher, il fermoit la porte extérieure de la boutique, et emportoit la clef, dont il étoit seul depositaire. On voit un matin la porte ouverte plutôt qu’à l’ordinaire, sans qu’on remarquat aucun mouvement qui annonçat que la marchande ou son garçon fussent levés. Cette inaction donna de l’inquietude aux voisins. Cependant on ne remarque aucune fracture à la porte; mais on trouve un couteau ensanglanté, jetté an milieu de la boutique, et la marchande assassinee dans son lit à coups de couteau. Le cadavre tenoit dans une main une poignée de cheveux, et dans l’autre une cravate. Aupres du lit étoit un coffre, qui avoit été forcé. On saisit le garçon de boutique: il se trouve que le couteau lui appartient. La cravate que tenoit li marchande etoit a lui. On compare ses cheveux avec ceux qui étoient dans l’autre main, ils se trouvent les mêmes. Enfin, la clef de la boutique étoit dans sa chambre: lui seul avoit pu, moyennant cette clef, entrer chez la marchande, sans fracture. D'apres des indices ainsi cumulés et si concluants, on lui fait subir la question; il avoue, il est rompu. Peu de tems apres on arrête un garçon marchand de vin, pour je ne sçars quel autre délit: il declare, par son testament de mort, que lui seul est coupable de l’assassinat commis à la place Saint Michel. Le cabaret où il servoit étoit attenant à la demeure de la marchande égorgée. Il étoit familierement lié avec le garçon de boutique de cette marchande; e’étoit lui qui mettoit ordinairement ses cheveux en queue; quand il le peignoit, il avoit soin de ramasser ceux que le peigne detachoit, et dont il avoit, peu-à-peu, formé la poignée qui s’étoit trouvée dans les mains du cadavre. Il ne lui avoit pas été difficile de se procurer une des cravates et le couteau du son camarade, et de prendre, avec de la cire, l’empreinte de la clef de la boutique, pour en fabriquer une fausse.’

“There is a species of testimony which is called the evidentia rei: though this must be introduced by positive evidence, yet, when produced, it speaks for itself, and requires no explanation. Of this nature may be mentioned two cases, which have happened within a few years upon the northern circuit: in one case, a man was found shot by a ball, and the wadding of the pistol stuck in the wound, and was found to be part of a ballad called ‘Sweet Poll of Plymouth,’ which corresponded with another part found in the pocket of the prisoner. The other also was a case of murder; and in the head of the deceased there was a chip or splinter, which exactly fitted the cavity in a bludgeon from which a piece had been lately broken; which bludgeon the prisoner carried in his hand when he was apprehended. Though this account of the two pieces of the ballad, and two pieces of the bludgeon, must be proved by positive testimony, yet the court and jury are as competent judges of the fitness and correspondence of the parts as the witnesses. Cui adsunt testimonia rerum, quid opus est verbis? These were certainly strong corroborations of other circumstances; but if they had stood alone, they would have deserved little consideration; for if the ballad and the bludgeon had been thrown away by the murderers, they were objects likely to draw the attention of an innocent man, who would naturally have put one in his pocket, and have earned the other in his hand.”

[* ]On this principle, for the more effectual prevention of the crime which consists in the murder of an illegitimate child, a punishment has been imposed by English law upon the mere concealment of the birth—an act in itself nowise criminal, but considered in the light of evidence of a criminal intention.a

[† ]See Bradford’s case, in a Treatise on Circumstantial Evidence, occasioned by Donnellan’s trial.a Bradford being an innkeeper, a traveller, seen to be well provided with money, put up at his house. The traveller was found weltering in his blood, Bradford in the room, armed as for the crime: he had, however, been frustrated by another traveller, with whom he had had no intercourse on the subject, and who on his deathbed confessed the fact.

[* ]A story current enough, but of which the source cannot be distinctly recollected, may serve as an exemplification of the field of enterprise in this line, which has been laid open by nature (too well seconded, as will be seen, by the blundering hand of English law) to unprincipled speculators. A man wishes to secure to himself, in the way of marriage, a hand, of which, by direct and honourable means, he has no sufficient hope. His object is, by destroying the reputation of his intended victim, to deprive her of all hopes that do not centre in himself. He takes the requisite measures: he bribes servants; he provides himself with the requisite equipment: in the costume of a happy lover, he shows himself to observers, casual or posted, through the window of her bed-chamber, as Galatea showed herself:—Et fugit ad latebras, et se cupit ante videri.a

The outline thus delineated, the particular object, and the details of the plan, will (as already hinted) admit of considerable diversification. To the value of the prize obtainable at the price in question, there are evidently no determinate limits; and this, whether pecuniary profit (to the amount of which there is also no limit) be or be not taken into the account.

As to the price in the way of punishment; few if any are the existing systems of legislation that have, with any sufficient degree of consistency and uniformity, raised it to a pitch too high to find bidders. For seduction, under English law at least (which, in everything that concerns marriage, indicates for its author some old woman in her dotage.) for seduction, the maximum would be but a flea-bite: punishment as for capital violence, the charge being of the adventurer’s own framing, he will know better than to subject himself to.

To any bosom in which either love or money has infused the spirit of enterprise, the Chancellor (who fancies himself, or pretends to fancy himself, the guardian of female orphans—who fancies, or pretends to fancy, his authority the bar to ill-assorted marriages, the protector against deception or imprudence) is but a laughing-stock. Ever ready to punish, he is ever impotent to prevent: powerful to do mischief, he is impotent to do good; that good always excepted, of which his professional brethren are the sharers, and which consists in distributing among them, in due form of practice, a portion of the orphan’s substance.

[* ]That a certain degree of particularity in these respects is desirable—desirable for the reason above given,—has been sufficiently observed by the founders of this part of the English law. They therefore required, that, in the instrument of accusation, it should be observed; and so serious were they in the requisition, as to determine, that where the requisition to that effect is not complied with, the defendant, guilty or not guilty, shall be acquitted. That causes will often happen in which, though delinquency may be capable of being established, and by abundantly sufficient evidence, that same degree of particularity cannot possibly be exhibited,—was another observation which, true as it is, yet, at the time of establishing that requisition, they failed to make. Compliance with the requisition was impossible; but the impossibility of complying with it was no bar to the establishment of it. The requisition had not been long enforced, before the impossibility of complying with it, consistently with the conviction of the guilty, was discovered. A remedy was accordingly applied. What was that remedy?—Converting a court of penal justice into a school of necessary falsehood—a school in which the scholars were not merely taught and invited, but by main force compelled, to defile themselves with that vice: no falsehood, no justice. A day must be specified; but it need not be the true one.a A day must be specified; but that the fact happened on that day, is not necessary to be proved: another, any other, will do as well. You must say you know the day, and say what that day is: you must so know it, when you know it; you must say you know it, when you know nothing of the matter. But, provided you utter this falsehood, you shall not be prejudiced by it: from falsehood, nothing—it is from truth alone that you have anything, to fear: speak falsely, you are safe; speak truth, you lose your cause.

This is but one instance out of a multitude, in which, by aiming at a degree of precision beyond what the nature of the case admits of, they lost the benefit of such degree of precision as the subject does admit of: they lost precision altogether: they threw away precision, and embraced falsehood in the room of it.

[* ]Considered as a means of avoiding justiciability, the effect of exprovinciation will be the greater, the greater the obstruction offered by it to the power of justice, whether by means of local distance, or by means of independency of jurisdiction.

Of the mode and degree of the obstruction thus capable of being opposed, the diversifications are infinite: particularly in modern times, since it has been a fashion among the powers of Europe to comprise each of them within its grasp the most distant parts of the globe.

The obstruction opposed by independency of jurisdiction, being a psychological cause, is removable: the obstruction opposed by local distance, a physical cause, is inexorable.

Accordingly, though in general the obstruction opposed by expatriation will be greater than by exprovinciation, yet, in some instances, that which is opposed by exprovinciation will be the greater. In the instance of some offences (forgery in particular, in which public credit all over the globe beholds an enemy,) the great European States, Britain not excepted, have surrendered each to the justice of the other its supposed delinquents. In so far as this disposition prevails, the obstruction given to the course of justice by expatriation—for example, from London to Calais or even to Paris—may not be so great as that opposed by exprovinciation from London to the Orkneys, or though it were no further than to Edinburgh; not to speak of the West or East Indies.

Person and property are not the only objects on which, for the purpose of securing effective justiciability, the law has it in its power to take hold. Over and above these corporeal objects, there remain two incorporeal ones. viz. reputation and condition in life, by means of which the feelings of individuals are exposed to be wrought upon by the force of the law, as well as by that of lawless injury.

But person and property are the only objects which it is ever in the power of an individual, in case of delinquency on his part, to withdraw out of the power of the law: in spite of his utmost efforts, reputation and condition in life continue subject to it.

Even in regard to property, the extent of the power which it depends on the individual to exercise over it, in spite of the law, or without its assistance, is subject to very extensive limitations. To immoveables it does not extend: nor even to money or moveables in any case where, his power depending upon the consent of other persons, that consent is withholden or refused. Hence the influence, in some cases irresistible, in others no more than ideal, of the judgment of outlawry;a by which, amongst other penal consequences, the defendant stands deprived in a considerable degree of that security for his property, which depends upon the protection that would be otherwise afforded him by the law.

[† ]Under the penal procedure of the Roman law, or, to speak more accurately, of the system which, before the Revolution, existed in France, the probative force of the inculpative circumstances of this class should accordingly, it should seem, be less than under the English.

For the purpose of computing the average duration of a penal suit, the collection of trials entitled Causes Celibres (thirty volumes in closely-printed 12mo) was examined. It was not in every instance that the duration of the suit could be ascertained: in the instance of those in which it was capable of being ascertained, the average duration turned out to be near six years. In these, it is true, the intricacy of the cause was above the ordinary pitch. But under English procedure it would be difficult, perhaps impossible, to find a penal cause, on the occasion of which, down to detinitive judgment, the provisional imprisonment had lasted a fourth part of that time.

In penal cases, the procedure of the Roman school does not admit of discharge on bail with near so much facility as the English.

In England, in a case not bailable, the criminative force of the circumstance in question may be calculated, and with some degree of precision, from geographical data. In the class of causes most highly penal, in London and Middlesex, justice is administered in about forty-eight days out of the three hundred and sixty-five; in the other counties, with the exception of the four northern ones, in about four out of the three hundred and sixty-five; and in these northern ones, in about two out of the three hundred and sixty-five.a

A supposed duellist, for example, who has killed his man, is in a state of expatriation, latency, or even latitancy. In London and Middlesex, the criminative force of any one of these symptoms of fear (the possible chance of being let out upon bail by the Court of King’s Bench, being laid out of the case as not capable of being brought into calculation) will be a little less than four times as great as in any other of the southern counties, a little less than eight times as great as in any one of those four northern counties.

[* ]The distinction between general and special is applicable to the circumstance of station, as well as to disposition and character. Laying out of the case the general distinction between high and low, inferences of an inculpative nature seem to have been deduced from the consideration of this or that particular station or occupation by English law.

Thus, on the ground of supposed hard-heartedness, butchersa have been considered as being (in capital cases at least) excluded from the capacity of serving as jurymen: and, judging on this principle—supposing an act of homicide, or offence attended with bloodshed, committed, and, as between two men, the one a butcher, the other not, the question, which was the man? hanging in suspense—the answer would, if consistent, be, the butcher. It seems questionable, however, whether, upon consulting the annals of criminality, this presumption would be found to have any ground in fact. Against soldiers and sailors it might be supported, perhaps, with a closer appearance of reason; not to speak of surgeons; and even in these instances it seems questionable whether (numbers being taken into the account) the presumption would receive any support from experience.

In a case where, literally speaking, blood is supposed to have been shed, the presumption would, with better colour of reason, plead for the fixing upon the butcher in preference to the non-butcher for the delinquent, than for the exclusion of the butcher from the faculty of officiating in the character of the occasional sort of judge called a juryman. It seems altogether impossible to find a reason why, in a capital case more than in any other, a butcher should be more disposed than another man to do injustice; altogether easy to find a reason why a lawyer should. Lord Chancellor Jefferies and Judge Page, of hanging memory, were not butchers.

[a ]Concealing or endeavouring to conceal the birth of a child, is made a misdemeanour by 9 Geo. IV. c. 31, § 14, and the offender is liable to be imprisoned for any term not exceeding two years.—Ed.

[a ]There were various tracts on this subject. One will be found editorially quoted (infra, p. 182,) which does not appear, however, to be that referred to by the author.—Ed.

[a ]This act is said to have been perpetrated by the Earl of Stair, and to have occurred in Edinburgh.—Ed.

[a ]Kelyng, 10. 2 Inst. 318. R. v. Aylett, 1 T. R. 70-71.

[a ]If a defendant absconds after a writ of capias has been awarded, and certain formalities observed, he is proclaimed an outlaw, and is incapable of bringing actions: formerly his life was unprotected by the law, and he might have been killed with impunity by any one who met him. 4 Black. Com. 319. Judgment of outlawry for treason or felony, renders a man an incompetent witness in a court of justice; but outlawry in a personal action does not. 3 Inst. 212. Celier’s Case, Sir T. Raym, 369: Co. Lit. 6. b.

[a ]Some improvement has taken place in this matter since the above was written. The central criminal court, which has jurisdiction over London, Middlesex, and part of Surrey Kent and Essex, sits twelve times a-year; each session lasting, on an average, for about seven or eight days. The four northern counties are now placed in the same situation as the other counties;—that is, they are all visited twice a-year by the judges for the purpose of trying the class of causes referred to by the author, as well as civil actions.—Ed.

[a ]There is no legal objection to butchers serving on juries in capital cases in England, nor do the authorities afford reason to presume that there ever was any. In point of fact, butchers do serve in such cases. It is remarkable that the vulgar error on this subject extends to Scotland, where it is held as traditionary law that butchers cannot serve. Not being excepted by the qualification act, however, they are in the same situation as other citizens. It is usual for the court, probably for the purpose of obviating popular complaint, to excuse them for non-attendance.—Ed.