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the doors and windows were secure as usual. After the prisonerwas condemned and executed, it appeared, by the confession of one of the real criminals, that they had gained admittance into the house, which was situated in a very narrow street, by means of a board thrust across the street from an upper window of an opposite house to an upper window of that in which the deceased lived, and having committed the murder, returned the same way, leaving no traces behind them.(y) The intentional fabrication of circumstances is also of two kinds: sometimes persons entirely innocent, terrified at the prospect of a criminal charge, have recourse to false testimony as a means of defence, which, if detected, is sure to raise a strong presumption of guilt against them.(z) The intentional fabrication of circumstances, through other agency than that of the accused, may arise either from a desire to screen the real criminal, or with the corrupt r #284 1 view of *raising suspicion against an innocent person: or J from both motives conjoined. A remarkable instance of the former is mentioned by Lord Hale, of a man who was convicted and executed for stealing a horse, on the strength of the presumption of the animal's being found in his possession on the same day on which it was stolen; but it afterwards appeared that the real thief, being closely pursued by the officers of justice, had met the unfortunate man, to whom he was a total stranger, and requested him to walk his horse for him while he turned aside upon a necessary occasion, and so escaped.(n) And the following extraordinary case is said to have occurred in France, which, whether true or not, will serve the purpose of illustration. An old widow, reputed to have a large sum of money by her, lived in a small shop facing a street, with a back shop, which served as her bed-room. Her entire family consisted of herself and a man-servant, who slept on the fourth story of the same house, but whose room had no communication with those of his mistress, except through the door of the front shop, which it was his usual practice to lock outside when going away at night, and take the key to his own room. One morning this door was observed open, but without any marks of violence or breaking upon it, and the old woman was discovered lying on her bed, murdered, apparently by a bloody knife, which was found lying on the floor at some distance from her, while a strong box in the room was open, and had been rifled. One hand of the corpse grasped a quantity of hair, ascertained by comparison, to be that of the servant, and the other a cravat, which turned out *lo be his property; while the key of the r *2S5 1 shop was found in its usual place. On the strength of *• J these presumptions of his being the murderer of his mistress, the unfortunate man was put to the torture, confessed the crime, and was broken on the wheel. In process of time, however, it was discovered that the murder and robbery had been committed by a man who was the servant's favourite companion, who, in order to avert suspicion from himself, and cast it on his friend, had furnished himself with a knife and cravat belonging to him. He also availed himself of an

(y) 1 Stark. Ev. 577.

(*) See the case related by Lord Coke, supra, § 202, and Part II., Presumptions in disfavour of the Spoliator, except thai there was no corpus delicti.

(a) 2 Hate, P. C. 289. See also, Jenning's case, Theo. of Pres. Proof, Append, case 1.

opportunity to take a wax impression of the shop-key : and, as he was in the habit of dressing the servant's hair, had saved from time to time a considerable portion of the combings, which, after perpetrating the murder, he placed, together with the cravat, in the hands of the deceased.(6) But human depravity has gone farther than this. In the case of Le Brun, who, in 1689, was accused of having murdered his mistress, to whom he was an upper servant, the officers of justice were suspected of having, in the interval between his apprehension and trial, altered a key which was found in his possession into a masterkey, to induce a belief that he had a facility for perpetrating the crime which he really did not possess.(c) And there is reason to believe that even suicide has been committed with the view of casting a suspicion of murder on a hated individual.(rf)

T *286 1 *^ ^1^n tne cases we nave hitherto been considering, *- J the accused was altogether innocent, and the victim of

chance or malice. But there are others where the accused, although innocent of the offence imputed, has not been free from blame, and whose defence is therefore in a great degree impeded by a consciousness of wrong. We have already had occasion to mention a case of this nature from Lord Hale;(e) in addition to which, it is every day's practice to convict of larceny on proof of the recent possession of stolen property, although, probably, in a great number of instances, the real offence of the accused has not been the actual theft, but a receiving the property with a guilty knowledge of its having been stolen. So, a man who robs another, who is shortly afterwards found dead, either by accident or assassination from some other hand, might find considerable difficulty in clearing himself from the murder.(y> To this head may also be referred those cases where a crime resolved on has been repented of before execution, but the same offence has afterwards been committed by another person; and the still more rare case of the intention to commit the offence persisting, but the power failing, in consequence of the accused having been anticipated in his

Eurpose. A remarkable instance of the latter is presented in the celerated case of Jonathan Bradford. This man was an innkeeper, in whose house a guest was found robbed and murdered in the middle of the night, and his host standing over the bed, with a dark lantern in r #2§7 i one hand and a knife in the other, both hands and knife J bloody, *and who exhibited symptoms of the greatest terror. He was convicted and executed; but it afterwards appeared that the crime had been committed by another person, immediately before Bradford came into his guest's room, which he also had entered with a similar design; while the blood on his hands was occasioned by his having, when turning back the bed clothes, to see if the deceased were really dead, dropped his knife on the bleeding body.^) § 212. Rule 4. The hypothesis of delinquency should flow naturally

(b) 3 Benth.Jud. Ev. 255; 5 Causes Celehree, 438, ed. de Richer, Amsterdam, 1773, «fcc .

(c) 3 Benth. Jud. Ev. 60. For other bad cases of the fabrication of circumstantial evidence, see the Theory of Presumptive Proofj Appendix, case 10; and the case of the Milan Jews, 5 Causes Celebres, 440.

(d) A ease of this nature is given in Taylor's Medical Jurisprudence, vol. 1, p. 357.

(e) 2 Hale, P. C. 290, supra, § 202. (/) See R. v. Downing, Will», 179, 180. (g) Case of Jonathan Bradford, Theory of Presumptive Proof, App. case 7, p. 89.

from the facts proved, and be consistent with them All.(a)—It has been already remarked, that the chief danger to be avoided, when dealing with presumptive evidence, arises from a proneness, natural to the human mind, to jump to conclusions from facts, without duly adverting to others inconsistent with the hypothesis which those facts seem to indicate.(t') "The human mind," says Lord Bacon, " has this property, that it readily supposes a greater order and conformity in things than it finds; and although many things in nature are singular and entirely dissimilar, yet the mind is still imagining parallel correspondences and relations betwixt them which have no existence."^) This tendency of the mind is very perceptible in the physical sciences, of which, perhaps the niost apposite instance is to be found in the fact, that it was for many ages assumed as indisputable that the celestial bodies must necessarily move in circular orbits, to the utter exclusion *of all less regular figures.(Z) When Copernicus, also, r #288 1 first promulgated his theory of the solar system, it was * objected, that, if this hypothesis were true, the inferior planets must necessarily appear at times gibbous like the moon; to which it was replied that they were so, but that the phenomenon was imperceptible, owing to our distance from them, a fact since fully established by the invention of the tclescope.(wi) And in dealing with questions offact, this natural propensity cannot be too closely watched. If, as was well observed by some one, a certain number of pieces of wood will build a house, with the exception of one cross beam, it is the natural tendency of the mind to reject that beam. And it should never be forgotten, as observed by an able writer on the law of evidence, that all facts and circumstances which have really happened were perfectly consistent with each other, for they did actually so consist. It is, therefore, a necessary consequence, that, if any of the circumstances established in evidence be absolutely inconsistent with the hypothesis of the guilt of the accused, that hypothesis cannot be true.(m) Thus, to resume the instance given in a former part of this work, "of a man indicted for stealing a log of timber, and r #ggg a large body of circumstantial evidence adduced to show*- * that it was stolen by one person, and that person the prisoner. Now, supposing it were to transpire in the course of the trial, that the log in question was so heavy that twenty men could not lift it, here is a • fact utterly inconsistent with the hypothesis of guilt, and clearly indicating mistake or mendacity somewhere.(o)

§ 213. But not only is it necessary to negative the existence of facts

(A) t Stark. Ev. 5G1. 573; Theory of Presumptive Proof, p. 63.

(t) Supra, § 193. (fc) Novum Organum, aphorism, 45.

(/) This ancient prejudice proved a great source of embarrassment to Kepler, by whom the elliptical movements were first discovered. In investigating the planetary orbits, he says, " Primus meus error fuit, viam planetaa perfectum esse circulum; tanto nocentior temporis fur, quanto era! ab authoritatc omnium philosophorum instructor, et metaphysics in specie convenicntior." (Brinkley's Astron. p. 171.) Another singular notion seems to have prevailed in the middle ages, namely, that the number seven enjoyed a species of predominance in creation; there being but seven days in the week, seven primary colours, seven notes in music, Slc. From all this it was, in that age of logic, inferred, that there necessarily could not be more than seven planets.

(nt) Herschel's Discourse of Natural Philosophy, part 3, c. 3, p. 269.

(n) 1 Stark. Ev. 560, 561.

(o) Part I. chap. 4; Menoch. de Arbitrar. Judic lib. 2, casus 472, n. 21.

absolutely falsifying the hypothesis of guilt, but due attention should be given to all contrary hypotheses and facts tending to disprobabalise it. This rule was violated in the case of Eliza Fenning, who was convicted and executed in 1815, for attempting to poison a family with whom she lived as cook, by putting arsenic into some food. "The prisoner," says Mr. Wills, " had herself parlaken of, and suffered severely from the poisoned food; but of this important circumstance no notice was taken in the Recorder's charge."(p)

§ 214. Rule 5. Presumptive Evidence ought never to be relied on when direct Testimony is wilfully wiIhheld.(q)—This rule is only a T *290 1 branc^ o^ tlie general principle, that *the wilfully with*- J holding important evidence raises a presumption against

the party, and throws discredit on the evidence which he offers.

§ 215. Rule 6. In Cases of Doubt, it is safer to acquit than condemnor)—The punishment of guilt, and the protection of innocence, have in general an equal claim in the administration of justice; but when a collision occurs between them, the law of England holds the latter to be its primary care, and that it is better that several guilty men should escape, than that one innocent person should suffer— "tulius semper est errare in acquietando quam in puniendo, ex parte misericordicc quam ex parte justiticp.."(s) This rule is extremely ancient , According to the Mirror of Justices. King Alfred caused Judge Freburne to be hanged, because he had adjudged a man to die when the jury were in doubt about their verdict; "for, in doubtful cases," says this old book, " one ought rather to save than condemn."(I) And even the Roman law laid it down, "Satius est impunitum reliquifacinus nocentis, quam innocentem damnare."(u) The principle has, however, been attacked by Dr. Paley, who designates the above rule as a popular maxim having a considerable influence in producing injudicious acquittals. "The security of civil life," he argues, " which is essential to the value and enjoyment of every blessing it contains, and the interruption of which is followed by universal misery and confuT *291 1 sion' *s protected chiefly by a dread of punishment; the *- * *sufferings, or even the death, of an innocent individual,

when they are occasioned by no evil intention, cannot be placed in competition with this object. Courts of justice, therefore, ought not to be deterred from the application of their rules of adjudication by every suspicion of danger, or by the mere possibility of confounding the innocent with the guilty. They ought rather to reflect that he who falls by a mistaken sentence may be considered as falling for his country, whilst he suffers under the operation of those rules by the

(p) Wills on Circumst . Ev., p. 158. The conviction of this very young woman created much difference of opinion at the time; but, Government having refused to interfere, she was executed, denying her guilt to the last. If we may credit a newspaper account, another person has since confessed the crimp, when on his death-bed. Smith's Hints for the Examination of Medical Witnesses, p. 135, 136. Be this as it may, the general impression now seems in favour of her innocence. See Smith and Wills, in loc. cit.; and Beck's Med. Jur. 857, 7th ed.

(?) 1 Stark. Ev. 576; Theory of Pres. Proof, 62; 3 Benth. Jud. Ev. 230; 2 Ev. Poth. 340.

(r) 2 Hale, P. C. 289, 290; 4 Bl. Com. 358; 1 Stark. Ev. 559, 588; Wills on Circum. Ev. 189,190; R. v. Burdett, 4 B. & A. 162, (6 Eng. Com. Law Reps.)

(i) 2 Hale, P. C. 290. (I) Mirror of Justices, chap. 5, s. 1, abuse 108, No. 15.

(u) Dig, lib. 48, tit. 19, c. 5.

general effect and tendency of which the welfare of the community is maintained and upheld."(a;) It will not, however, be very difficult to expose the fallacy of this inhuman argument . It is perfectly true that the security of civil life is the first object of all penal laws, and that that security is chiefly protected by the dread of punishment; but then it is of punishment as a consequence of guilt, and not of punishment falling indiscriminately on those who have or have not provoked it by their crimes. When the guilty escape, the law has merely failed of its intended effect; but wnen the innocent become its victims, it injures the very persons it was meant to protect, and destroys the security it was meant to preserve. And well it would be if the mischief ended here; for it is a great mistake to suppose that the actual sufferings of the innocent man are the only evils resulting from an erroneous conviction. Its necessary result is to shake confidence in the administration of justice, when people reflect that every individual they see condemned to punishment may be in the highest degree unfortunate, and in no degree guilty; whose conviction and sufferings *are inflicted, not so much from an actual belief in his r #292 i guilt, as in the nature of a sacrifice to a supposed expedi- J ency. Under such a system, few would care to prosecute for offences, still fewer to come forward with voluntary testimony against persons suspected of them.(y) The law might, indeed, sit in terrific majesty, denouncing the severest penalties, and acting on the most violent and strained maxims, but for want of proofs and co-operation on the part of society those penalties would become a dead letter. It certainly requires rather strong imaginative powers to see an analogy between the fate of a soldier dying in defence of his country, and of an innocent citizen butchered in cold blood under the name of justice. The one falls with honour, his memory is respected, his family, perhaps, provided for; while the latter has not even the sad consolation of being pitied, but sees himself branded with public ignominy, leaves a name which will excite only horror or disgust; until, perhaps, in process of time, his innocence becomes manifest, only to excite in all the rightminded portion of the community a feeling of alarm and disgust at the state of insecurity under which they live. Could the escape of ten of the most desperate criminals, emphatically asks Sir S. Romilly, from whom some of the preceding remarks have been taken,(*) have ever produced as much mischief to society as did the public executions of Calas, D'Anglade, or *Le Brun 1(a) But another evil, r #293 1 which seems to have altogether escaped the notice of Dr. -* Paley.remains to be mentioned. "Instances," observes Sir S. Romilly, "have indeed occurred like that of Calas, where a man has been offer

(*) Paley's Moral and Political Philosophy, book 6, c. 9,

(y) In no part of the world is genuine voluntary evidence more easily procured against suspected criminals than in England. May not this result from a conviction on the part of society in general, that, if the suspected person be really innocent, the law will take care that no harm shall happen to him?

(*) Observations on the Criminal Law of England, p. 72, note D; a great portion of which the reader will also find in the note to Lord Stafford's case, 7 Ho. St. Tr. 1529.

(a) These were three celebrated cases which occurred during the last century in France, and shew the fearful state of the administration of justice under the ancien regime in that country. The case of Calas is well known; an abridgment of it will be found in Beck's Med. Jur. 633, 7th ed.; for that of D'Anglade, see 3 Causes Celebres, 1, edition by Richer; and for that of Le Brun, 5 Id. 301.

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