J 78 ESSAY ON THE RATIONALE OF 



would be needless and perhaps impracticable to substitute others ; 

 but their distinctive propriety is certainly not evident, and the mis- 

 use of them has occasionally been the cause of lamentable errors. 



On a superficial view it might be thought that the terms direct 

 and circumstantial denote distinct ki?ids of evidence, whereas in 

 reality they denote only the different probative nature of evidentiary 

 facts themselves. The actual distinction is, that by direct evidence 

 is intended proof of the fact which is the subject of inquiry — the 

 factum probandum. Circumstantial evidence is equally direct in its 

 nature, but it is direct evidence of a minor fact or collection of facts 

 more or less usually connected with some other fact, and from 

 which it is usually inferred. A fact of this latter kind is called 

 factum probans. 



The term presumptive is frequently used as synonymous with cir- 

 cumstantial evidence, but it is never so applied with accuracy. A 

 presumption is a probable consequence drawn from proved facts, as 

 to the truth of a fact alleged, but of which there is no direct proof. 

 The word presumption, therefore, inherently imports a conclusion 

 of the judgment, based upon circumstantial evidence; and it is more 

 accurate to apply it only to conclusions from facts or moral pheno- 

 mena. A wounded and bleeding body is discovered ; it has been 

 plundered ; wide and deep footmarks are found proceeding in a di- 

 rection from the body. These circumstances induce the conclusion 

 that a crime has been committed, and that conclusion is properly 

 termed a presumption. The Judgment of Solomon is a memorable 

 instance of a presumption afforded by moral phenomena. 



Direct and circumstantial evidence are essentially distinguished 

 by the manner in which they produce belief. So rapid are our in- 

 tellectual processes, that it is frequently impossible to trace the con- 

 nection between an act of the judgment and the train of reasoning 

 of which it is the consequence ; and the one appears to succeed the 

 other by a kind of necessity, as the thunder follows the flash. But 

 the case is widely different when we have to determine upon cir- 

 cumstantial evidence, the judgment in respect of which is essen- 

 tially deductive and inferential ; the facts may be true and the de- 

 duction false, and it is only by long experience that we acquire con- 

 fidence in the accuracy of our conclusions. 



It is essential in all investigations founded upon moral evidence, 

 and especially upon circumstantial evidence, that we correctly esti- 

 mate the kind and degree of assurance of which the subject admits. 

 The end of all intellectual research is the discovery of truth, or the 

 conformity or disagreement of ideas. Abstract truth concerns ne- 



