conceived than described. In dealing with natural evidence the connection between the principal and evidentiary facts must be left to instinct (s); in legal evidence this is replaced by a sort of legal instinct, or legal sense, acquired by practice; and the old observation "Multa multò exercitamentis facilius quàm regulis percipies (t),” becomes perfectly applicable. A few instances, however, may serve to guide and illustrate. On a criminal trial the confession of a third party, not produced as a witness, that he was the real criminal and the accused innocent, although certainly not destitute of natural weight, would be rejected, from its remoteness and want of connexity with the accused, and the manifest danger of collusion and fabrication. So, if a man writes in his. pocket book that he owes me 5l., it is reasonable evidence against him that he does owe me that sum, although it is quite possible he may be mistaken. But suppose he were to write in it that I owe him 5l., that statement, though possibly quite true, is no evidence against me, for the want of connexity is obvious. Again, the bad character or reputation of an accused person, although strong moral, is not legal evidence against him, unless he sets up his character as a defence to the charge. The sound policy which requires that even the worst criminals shall receive a fair and unprejudiced trial renders this rule indispensable. So, a man's appearance and physiognomy are not unfrequently excellent guides to his character and disposition, but could they be received as legal evidence (u)?

§ 92. But whether a given piece of indirect evidence should be received as circumstantial, or rejected as con

(s) 1 Benth. Jud. Ev. 44. (t) 4 Inst. 50.

(u) Some of the French lawyers thought they could, "On allait jusqu'à mettre au nombre de ces indices" (i. e. indices éloig

nés) "la mauvaise physiognomie de l'accusé, ou le vilain nom qu'il portait. Mais c'étaient là, il faut en convenir, des indices trèséloignés." Bonnier, Traité des Preuves, § 652.

jectural proof, is often a question of extreme difficulty. One test, perhaps, is to consider whether any imaginable number of pieces of evidence such as that tendered could be made the ground of decision: for it is the property of genuine circumstantial evidence, that, however inconclusive each element of the chain may be in itself, the concurrence of them all amounts to proof, often of the most convincing kind. Suppose, in a case of murder by a cutting instrument, no eye witness being forthcoming, the criminative facts against the accused were: 1. He had had a quarrel with the deceased a short time previous. 2. He had been heard to declare he would be revenged on the deceased. 3. A few days before the murder the accused bought a sword or large knife, which was found near the corpse. 4. Shortly

after the murder he was seen at a short distance from the spot, and coming away from it. 5. Marks corresponding with the impressions made by his shoes were traceable near the body. 6. Blood was found on his person after the murder. 7. He absented himself from his home immediately after it. 8. He gave inconsistent accounts of where he was on the day it took place. The weakness of any one of these elements, taken singly, is obvious, but collectively they form a very strong case against the accused. Now suppose, instead of the above chain of facts, the following evidence was offered. 1. The accused was a man of bad general character. 2. He belonged to a people notoriously reckless of human life, and addicted to assassination. 3. On a former occasion he narrowly escaped being convicted for the murder of another person. 4. Much jealousy and ill feeling existed between his nation and that to which the deceased belonged. 5. On the same spot, a year before, one of the latter was murdered by one of the former in exactly the same way. 6. The murderer had also robbed the deceased, and the accused was well known to be avaricious. 7. He had been overheard in his sleep to use language implying

Indicative evidence.

that he was the murderer (x). 8. All his neighbours believed him guilty, or, supposing the case one of public interest, both houses of parliament had voted addresses to the crown in which he was assumed to be the guilty party. These and similar matters, however multiplied, could never generate that rational conviction on which alone it is safe to act, and accordingly not one of them would be received as legal evidence.

§ 93. It may be objected, and, indeed, Bentham's Treatise on Judicial Evidence is founded on the notion, that by exclusionary rules like the above, much valuable evidence is wholly sacrificed (y). Were such even the fact, the evil would be amply outweighed by the reasons already assigned for imposing a limit to the discretion of tribunals in declaring matters proved or disproved (z): but when the matter comes to be carefully examined, it will be found that the evidence in question is not always lost to justice; for however dangerous and unsatisfactory it would be as the basis of final adjudication, it is often highly valuable as "indicative evidence," i. e. evidence not in itself receivable but which is "indicative" of better (a). Take the case of derivative evidence-a witness offers to relate something told him by A.; this would be stopped by the court; but he has indicated a genuine source of testimony, A., who may be called or sent for. So a confession which has been made under promise of favour or threat of punishment is inadmissible by law, yet any facts discovered in consequence of that confession, such, for instance, as the finding of stolen property, are good legal evidence (b). Again, no one would think

(r) Part 3, bk. 2, ch. 6.
(y) See that work, passim.
(z) Supra, § 90, and Introd.

(a) The phrase "indicative evi-
dence" is used by Bentham, 1

Jud. Ev. 37; see also Id. 32.

(b) R. v. Lockhart, 2 East, P. C. 658; R. v. Warwickshall, 1 Leach, C. L. 263; R. v. Gould, 9 C. & P. 364; R. v. Griffin, R. & R. C. C. 151.

of treating an anonymous letter as legal evidence against a party not suspected of being its author, yet the suggestions contained in such letters have occasionally led to disclosures of importance. In tracing the perpetrators of crimes, also, conjectural evidence is often of the utmost importance, and leads to proofs amounting to demonstration. It is chiefly, however, on inquisitorial proceedings; such as coroner's inquests, inquiries by justices of the peace before whom persons are charged with offences, and the like, that the use of "indicative evidence" is most apparent: though even these tribunals cannot act on it.

Rules of evidence are in general the same

§ 94. The rules of evidence are in general the same in civil and criminal proceedings (d); and bind alike crown and subject, prosecutor and accused, plaintiff in civil and criminal proceedand defendant, counsel and client. There are however ings. some exceptions. Thus the doctrine of estoppel has a much larger operation in the former (e). So an accused person may, at least if undefended by counsel, rest his defence on his own unsupported statement of facts, and the jury may weigh the credit due to that statement (ƒ); whereas in civil cases nothing must be opened to the jury which it is not intended to substantiate by proof (g). Again, confessions or other self-disserving statements of prisoners will be rejected if made under the influence of undue promises of favour, or threats of punishment (h); but there is no such rule respecting similar statements in civil cases. So, although both these branches of the law have each their peculiar presumptions, still the technical rules regulating the burden of proof cannot be

(d) R. v. Burdett, 4 B. & A. 122; Attorney-General v. Le Merchant, 2 T. R. 201, n.; R. v. Murphy, 8 C. & P. 306; Leach v. Simpson, 5 M. & W. 312: 25 Ho. St. Tr. 1314; 29 Id. 764.

(e) Infra, Part 3, bk. 2, ch. 6.
(f) Part 4, ch. 1.

(g) Stevens v. Webb, 7 C. &
P. 61; Duncombe v. Daniell, 8
Id. 227.

(h) Infra, Part 3, bk. 2, ch. 6.


Difference as to the effect of evidence in civil and criminal proceedings.

followed out in all their niceties when they press against accused persons (i).

§ 95. But there is a strong and marked difference as to the effect of evidence in civil and criminal proceedings. In the former, a mere preponderance of probability, due regard being had to the burden of proof, is sufficient basis of decision (k); but in the latter, especially when the offence charged amounts to treason or felony, a much higher degree of assurance is required. The serious consequences of an erroneous condemnation both to the accused and society, the immeasurably greater evils which flow from it than from an erroneous acquittal have induced the laws of every wise and civilized nation to lay down the principle, though often lost sight of in practice, that the persuasion of guilt ought to amount to a moral certainty (1); or, as an eminent living judge has expressed it, "Such a moral certainty as convinces the minds of the tribunal, as reasonable men, beyond all reasonable doubt (m)." The expression "moral certainty" is here used in contradistinction to physical certainty, or certainty properly so called (n); for the physical possibility of the innocence of any accused person can never be excluded. Take the strongest case, -a number of witnesses of character and reputation, and whose evidence is in all respects consistent, depose to having seen the accused do the act with which he is

(i) Huberus, Præl. Jur. Civ. lib. 22, tit. 3, n. 16. See per Lord Kenyon, C. J., in R. v. Hadfield, 27 Ho. St. Tr. 1353.

(k) Plowd. 412; 1 Greenl. Ev. 13, a, 4th Ed.; Mac Nally's Ev. 578.

(1) Introd. § 49. The juror's oath seems framed with a view to the above distinction. In civil cases he is sworn "well and truly

to try the issue between the parties, &c.," whilst in criminal ones his oath is that he "shall well and truly try, and true deliverance make, between our sovereign lady the Queen and the prisoner at the bar, &c."

(m) Parke, B., in R. v. Sterne, Surrey Sum. Ass. 1843, MS. (n) Introd. § 6.

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