CIRCUMSTANTIAL EVIDENCE. 181 



are facts of every kind, so that this is only a repetition of the same 

 sophism. Although " circumstances cannot lie," the narrators of 

 them may, and, like witnesses of all other facts, they may be biassed 

 or mistaken. 



Burke appears to have adopted, without scrutiny, the notion I am 

 combatting. " When circumstantial proof," says he, '^ is in its 

 greatest perfection — that is, when it is most abundant in circum- 

 stances — it is much superior to positive proof."* Paley says : " a 

 concurrence of well-authenticated circumstances composes a stronger 

 ground of assurance than positive testimony, unconfirmed by cir- 

 cumstances, usually afFords."t The fallacy of these passages is, that 

 they select an extreme case for the support of a general position : 

 they contrast slender or doubtful cases of positive evidence, with 

 cases of circumstantial evidence of the strongest kind, and calculated 

 to produce the highest degree of assurance. If evidence be so 

 powerful as ''necessarily to produce conviction" (in the language of 

 Mr. Justice Buller on the trial of Donellan), it matters not by 

 what kind of evidence the effect is })roduced : the proving power 

 must be precisely the same whether the evidence be direct or cir- 

 cumstantial. But a judgment based upon circumstantial evidence 

 cannot, in any case, be of a different nature from or more satisfacto- 

 ry than when the same result is produced by direct evidence free 

 from suspicion of bias or mistake. 



Attempts have been made, more especially by the civilians, but 

 with no advantageous result, to classify and tabulate individual facts 

 under terms expressive of their intrinsic and relative value as pre- 

 sumptions. In matters of property, the laws of every country have 

 created artificial legal presumptions, grounded upon reasons of poli- 

 cy and convenience, to prevent discord and to fortify private right. 

 " The very essence of such matters depends on the arbitrary con- 

 vention of men. Men act on them with all the power of a creator 

 over his creatures." J But in Morals and Jurisprudence, man, as a 

 physical being and as a moral agent — such as he is by natural con- 

 stitution, and by the influences of social condition — is the subject on 

 which the legislator and the moralist have to operate; and with 

 physical actions merely they have nothing to do. " The presump- 

 tions which belong to criminal cases, are those natural and popular 



* Burke's Works, v. ii., p. 624, ed. 1834. 

 f Moral and Political Philosophy, b. iv., c. 9. 

 X Burke, supra. 



