Direct or positive evidence is where a witness testifies to the precise fact which is the subject of the issue in trial; thus, in a case of homicide, that the party accused did cause the death of the deceased. But in case of circumstantial evidence, where no witness can testify directly to the fact to be proved, you arrive at it by a series of other facts, which by experience we have found so associated with the fact in question as, in the relation of cause and effect, that they lead to a satisfactory and safe conclusion; as where footprints are discovered after a recent snow, it is certain that some animated being has passed over the snow since its fall, and, from the form and number of the foot-prints, it can be determined with equal certainty whether it was a man, a bird, or a quadruped. Circumstantial evidence, therefore, is founded on experience and observed facts and coincidences establishing a connection between the known and proved facts and the facts sought to be proved.

With the case put by the chief justice we have a good illustration of the two kinds of testimony. If a witness should swear that he saw a man pass across a field it would be direct and positive testimony; if, however, no person saw the man, but we found human foot-prints on the recent snow or the yielding soil, we know from this circumstance, as surely as we could from direct evidence, that a human being has passed that way; and from certain peculiarities of the track, and correspondence with the boot of a particular man, we may be able to identify the individual with considerable certainty. One circumstance after another may be added, all tending to the same result, and each increasing the force of the inference to be drawn, till we arrive at that degree of moral conviction which is resistless. Many a criminal has fancied himself secure in the secrecy of his deed, till some clew has led the way to a train of surrounding facts which have fastened upon him with remorseless certainty.

Careful reflection will show us that in the common affairs of life, whether simple or complicated, we to a very great extent form our conclusions and take our action upon presumptive evidence. The man who is the best discerner of signs, and the best judge of probabilities, will, as a rule, arrive at the most correct results. The facts we gather from absolute and positive evidence are few compared with the ultimate facts which we reach by a course of reasoning, but which we rely upon with confidence. Indeed, it will be found upon the last analysis that much of what we call direct or positive evidence

is, after all, presumptive. The following extreme illustration of this is given by Chief Justice Appleton, and was also made use of by the attorney general in Webster's case: You see a man discharge a gun at another, you see the flash, you hear the report, you see a man fall dead, and you infer from all these circumstances that there was a ball discharged from the gun which entered his body and caused his death, because such is the usual and natural cause of such an effect. But you did not see the ball leave the gun, pass through the air, and enter the body of the slain, and your testimony to the fact of killing is, therefore, only inferential; in other words, circumstantial. The judge might have gone further, for even in so plain a case of irresistible inference of fact, we could not without further proof adjudge the man-slayer to be guilty of murder, but for two presumptions which the law supplies; first, that every one is presumed to be sane till the contrary appears, and, second, that every man is presumed to intend the natural consequences of his acts.

It would not be useful for the purposes of this article to attempt to draw the distinction between presumptions of law and of fact; nor would it be possible to enumerate or classify the great variety of inferences which we are constantly drawing from the facts which surround us. In our practical deductions we act upon our knowledge of the laws of nature, of animal instincts, and of the physical, intellectual, and moral constitution of man. In regard to human conduct, we judge it generally to proceed from the ordinary motives, affections, and passions which animate the human breast. Thus, in a celebrated case, Solomon rightly decided a question where the positive evidence was in direct conflict, upon the simple presumption that a mother's love would prompt her to give up her offspring rather than see it slain; and we are told that the people "saw that the wisdom of God was in him to do judgment."

As Chief Justice Shaw says, it is necessary, owing to the secrecy of crime, "to use all other modes of evidence besides that of direct testimony, provided such proofs may be relied on as leading to safe and satisfactory conclusions; and, thanks to a beneficent providence, the laws of nature and the relation of things to each other are so linked and combined together that a medium of proof is often thereby furnished leading to inferFOURTH SERIES, VOL. XXXII.—41

ences and conclusions as strong as those arising from direct testimony." When we have the direct testimony of a witness to a fact, the witness may be false, and we may not have the means of detecting the falsehood, and this has given rise to the claim that presumptive evidence is most satisfactory, as witnesses may lie, but facts cannot. To this it has been replied that though facts themselves cannot lie, the men who testify to them may, and thus in both cases we run the risk of perjury. But it must be remembered that in the case of presumptive proofs we commonly rely upon a collection and comparison of various facts and circumstances coming from different witnesses, and that they are much less liable, as Judge Shaw says, to be falsely prepared and arranged, and thus falsehood and perjury are more likely to be detected. There have been cases, however, of fabricated circumstantial evidence, where a skillfully laid plot has surrounded an innocent person with the appearances of guilt. This may be elaborately and artfully done; and, especially where the mouth of the party was closed by the law, it has, doubtless, sometimes been done with fatal effect. The Bible affords us a simple illustration of this species of imposition. When Joseph secretly placed a cup in the mouth of Benjamin's sack, and sent after him to accuse him of theft on the strength of his being found in the possession of apparently stolen property, he fabricated a case of circumstantial evidence against him. True, it was not pressed to a conviction, because it had an innocent purpose, being prompted by fraternal love, in which respect it was quite distinguishable from some of the devices of his father in his unregenerate days. For the reason above stated, the instances in which perjury enters into and vitiates presumptive proofs are few compared with those in which direct and positive proof is manufactured.

In cases of doubt in our ordinary affairs, and in the determination of civil cases by our courts, we judge in accordance with probabilities, that is, according to the preponderance of evidence; while in criminal cases, on account of the more serious consequences, we require the evidence to be of such a convincing nature as to exclude every reasonable hypothesis consistent with the innocence of the accnsed. This has been reduced to a maxim, so common as to be familiar to all, that the accused is entitled to the benefit of every reasonable doubt.

But this doubt must not be a mere whim or caprice. It has been defined to be "that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge." In other words, proof beyond reasonable doubt is that which "establishes the truth of a fact to a reasonable and moral certainty, a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it."

When a case is thus made out we are not to be deterred from acting by fear, simply because the consequences of a barely possible mistake may be irreparable. Where circumstantial evidence has wrought in the mind a degree of conviction equal to that produced by direct testimony, we must act upon it in the same way. There is the possibility of error in either case, but human administration of law is ever imperfect and ever liable to mistake. We are not for that reason to nullify the law.

As the author says, the prosecution of offenders under the discipline of the Church is, in some respects, analogous to criminal proceedings; but we venture the opinion that in a religious organization where, from the nature of the case, its standing and efficiency depend so much upon purity of reputation in its members, and the avoidance of scandal, the weight of probabilities, as in ordinary civil cases, is sufficient to justify a Church in protecting itself by removing the cause of offense. It cannot afford the benefit of every doubt to those who are bringing reproach upon its name.

There is one function of circumstantial evidence of the utmost practical importance. In the great majority of instances. the case does not depend upon either direct or presumptive proof alone, but rather upon à mixture of both. Unfortunately, it is of frequent occurrence that there is a strong conflict of direct testimony. We often hear the most violent contradictions between witnesses, called to testify to the same facts or circumstances from personal knowledge. This is not always to be attributed to perjury on one side or the other. It is a wise maxim of law that if a conflict between witnesses can be explained upon the hypothesis of honesty on both sides, we are

so to explain it; if we cannot, we adopt the theory of perjury as a last resort; but, in either case, we are to find out the truth with as much certainty as possible. How is this to be done? We of course take account of the character of the witnesses, if known or proved, of their means of observation, their clearness or confusion of memory, their manner and appearance in testifying, and various other matters which may affect their credibility. But these tests will not always suffice. Courts and juries are sometimes led astray by perjury, and even upon ecclesiastical trials falsehood is possible, and may be so plausible as to "deceive the very elect." In these cases of conflicting direct evidence, we resort to presumptive evidence to settle the doubt. We inquire which is most rational; which best accords with the known facts; which is most probable upon a consideration of the character and conduct of the parties and of the witnesses; which is confirmed or weakened by any circumstances appearing in the case. Truth must be consistent with itself. If an alleged fact cannot co-exist with an established or admitted fact, it must, of course, be discarded. It may be that an apparently trivial circumstance, when carefully examined, absolutely contradicts a mass of testimony, and bars our way when we were rapidly driving on to a conclusion. There is occasionally confusion and apparent inconsistency in the attending circumstances, when explanation and comparison may reconcile the seeming discrepancies, so that through the tangled skein we may trace the white line of truth till it leads on to a sure and safe result.

It must be admitted, however, that human testimony, in all its varieties, is a very imperfect means of arriving at the truth. Such are our differences in constitution, in perceptive faculties and reasoning powers, in prejudices and prepossessions, that, upon the plainest matters, we seldom perfectly agree. Perhaps none of us suspect how much the images in our minds are distorted by the medium through which they enter. Even as to objects of sense we find great difficulty in getting an exact report. A number of eye-witnesses to the same occurrence frequently get such different and sometimes contradictory impressions of the same occurrence that no two can unite upon the details. Especially is this diversity manifested in the attempt to repeat conversations, or any kind of oral statements.