and the fact which is in controversy; which connexion constitutes the fifth basis of evidence before stated. The facts proved are in both cases directly attested. In the former case, the proof applies immediately to the factum probandum, without any intervening process, and it is therefore called direct or positive testimony. In the latter case, as the proof applies immediately to collateral facts, supposed to have a connexion, near or remote, with the fact in controversy, it is termed circumstantial; and sometimes, but not with entire accuracy, presumptive. Thus, if a witness testifies that he saw A. inflict a mortal wound on B., of which he instantly died, this is a case of direct evidence; and, giving to the witness the credit to which men are generally entitled, the crime is satisfactorily proved. If a witness testifies that a deceased person was shot with a pistol, and the wadding is found to be part of a letter addressed to the prisoner, the residue of which is discovered in his pocket, here the facts themselves are directly attested; but the evidence they afford is termed circumstantial; and from these facts, if unexplained by the prisoner, the jury may, or may not, deduce, or infer, or presume his guilt, according as they are satisfied, or not, of the natural connexion between similar facts and the guilt of the person thus connected with them. In both cases, the veracity of the witness is presumed, in the absence of proof to the contrary; but in the latter case there is an additional presumption or inference, founded on the known usual connexion between the facts proved, and the guilt of the party implicated. This operation of the mind, which is more complex and difficult in the latter case, has caused the evidence afforded by circumstances to be termed presumptive evidence; though, in truth, the operation is similar in both cases. § 57. Much has lately been said and written respecting the comparative value of direct and circumstantial evidence; but as the controversy seems to have arisen from a misapprehension of the real nature and object of testimony, and can moreover lead to no practical end, it is not here intended to enter into the lists further than to observe, that one argument urged in favour of circumstantial evidence is palpably erroneous. "Witnesses may lie, but circumstances cannot," has been more than once repeated from the bench, and is now almost received as a judicial axiom. Yet certainly no proposition can be more false or dangerous than this. If "circumstances" mean,-and they can have no other meaning, those facts which lead to the inference of the fact in issue, they not only can, but constantly do lie; or, in other words, the conclusion deduced from them is often false. Thus, when at Melita the viper fastened on St. Paul's hand, the barbarians said among themselves, "No doubt this man is a murderer;" but. when they saw that no harm came to him, "they changed their minds, and said that he was a God." Here, both conclusions were alike false. So, in Macbeth, the master poet of nature has described Lenox, Macduff, and the other chieftains as erroneously assuming, first, that the grooms had murdered the king, because "their hands and faces were all badged with blood, so were their daggers, which unwiped were found upon their pillows:" and next that "they were suborned" by the king's two sons, who had "stolen away and fled." It is no answer to say that these are mere instances of hasty and illogical inferences, which display only the ignorance and presumption of the persons by whom they were drawn, and that the "circumstances which cannot lie" are such as necessarily lead to a certain conclusion. Who is to decide on this necessity? Clearly those who have also to decide on the fact in issue. Throw a case of circumstantial evidence into the form of a syllogism, and it will be found that the major premiss rests solely on the erring experience of the tribunal to whom it is presented. Besides, these very circumstances must be proved, like direct facts, by witnesses, who are equally capable with others of deceiving or of being deceived. So that in no sense is it possible to say, that a conclusion drawn from circumstantial evidence, can amount to absolute certainty, or, in other words, that circumstances cannot lie. 1 Annesley v. Lord Anglesea, 17 How. St. Tr. 1430, per Mountenoy, B.; R. v. Blandy, 18 How. St. Tr. 1187, per Legge, B. 2 Acts, xxviii. 3—5. So when Jacob saw Joseph's coat of many colours stained with kid's blood, "he knew it, and said, 'It is my son's coat; an evil beast hath devoured him; Joseph is without doubt rent in pieces."" Gen. xxxvii. 33. § 58. Although it is not here proposed to take any part in the controversy respecting the comparative weight due to direct and circumstantial evidence; still, it may not be without some advantage to point out briefly the dangers against which juries should especially guard, when called upon to decide cases supported by each of these species of testimony. For instance, in a case sought to be directly established, the witnesses are usually few, and consequently there is the more reason to apprehend conspiracy and fraud; since two or three persons are far more easily found than a larger number, who, from motives of interest or malignity, will combine to aggrandise themselves or to ruin an opponent. Their story, too, being for the most part simple, is readily concocted and remembered, while its very simplicity renders it extremely difficult, on cross-examination, to detect the imposture. It is on this ground that the uncorroborated statements of single witnesses, especially when they testify to atrocious. crimes, such as rape, &c.,' or are known, like accomplices, to be persons of bad character, and to have an interest in the result, have ever been regarded with merited distrust, and are now, in practice, generally deemed insufficient to warrant a conviction. § 59. With respect to cases supported by circumstantial evidence, juries should bear in mind, that, although the number of facts drawn from apparently independent sources renders concerted perjury both highly improbable in itself, and easy of detection if attempted; yet, the witnesses in such cases are more likely to make unintentional misstatements, than those who give direct testimony. The truth of the facts they attest rests frequently on minute and careful observation, and experience teaches the danger of relying implicitly on the evidence of even the most conscientious witnesses, respecting dates, footprints, handwriting, admissions, loose conversations, and questions of identity. Yet these are the links in the chain of circumstances, by which guilt is in general sought to be established. The number too of the witnesses, who must all speak the truth, or some link will be wanting, renders additional caution the more necessary. Besides it must be remembered, that, in a case of circumstantial evidence, the facts are collected by degrees. Something occurs to raise a suspicion against a particular party. Constables and police officers are immediately on the alert, and, with professional zeal, ransack every place and paper, and examine into every circumstance which can tend to establish, not his innocence, but his guilt. Presuming him guilty from the first, they are apt to consider his acquittal as a tacit reflection on their discrimination or skill, and, with something like the feeling of a keen sportsman, they determine, if possible, to bag their game. Innocent actions may thus be misinterpreted-innocent words misunderstood; and, as men readily believe what they anxiously desire,' facts the most harmless may be construed into strong confirmation of preconceived opinions. It is not here asserted that this is frequently the case, nor is it intended to disparage the police. The feelings by which they are actuated, are common to counsel, engineers, surveyors,' medical men, antiquarians, and philosophers; indeed, to all persons who first assume that a fact or system is true, and then seek for arguments to support and prove its truth. § 60. But, admitting that the facts sworn to are satisfactorily proved, a further, and a highly difficult duty still remains for the jury to perform. They must decide, not whether these facts are consistent with the prisoner's guilt, but whether they are incon. sistent with any other rational conclusion; for it is only on this last hypothesis that they can safely convict the accused.' This proposition cannot be more strikingly illustrated, than by referring to the credit that was given by the whole civilised world to the lying telegraph, which in October 1854, announced the fall of Sebastopol. 2 Ante, § 49. 3 Waters v. Thorn, 22 Beav. 547, 556, 557, per Romilly, M. R. 4 R. v. Hodge, 2 Lew. C. C. 227. CHAPTER V. PRESUMPTIVE EVIDENCE. § 61. THE general head of PRESUMPTIVE EVIDENCE is usually divided into two branches, namely, presumptions of law, and presumptions of fact. PRESUMPTIONS OF LAW consist of those rules, which, in certain cases, either forbid or dispense with any ulterior inquiry. They are founded, either upon the first principles of justice, or the laws of nature, or the experienced course of human conduct and affairs, and the connexion usually found to exist between certain things. The general doctrines of presumptive evidence are not, therefore, peculiar to municipal law, but are shared by it in common with other departments of science. Thus, the presumption of a malicious intent to kill from the deliberate use of a deadly weapon, and the presumption of aquatic habits in an animal found with webbed feet, belong to the same philosophy, differing only in the instance, and not in the principle of its application. The one fact being proved or ascertained, the other, its uniform concomitant, is universally and safely presumed. It is this uniformly experienced connexion which leads to its recognition by the law, without other proof; the presumption, however, having more or less force, in proportion to the universality of the experience. And this has led to the distribution of presumptions of law into two classes, namely, conclusive and disputable. § 62. Conclusive, or, as they are elsewhere termed, imperative, or absolute presumptions of law, are rules determining the quantity of evidence requisite for the support of any particular averment, which is not permitted to be overcome by any proof that the fact is otherwise. They consist chiefly of those cases in which the long-experienced connexion, before alluded to, has 1 Gr. Ev. § 14, verbatim. * Gr. Ev. § 15, verbatim, |