It must appear from the incident at the public house, with what caution, presumptive testimony is to be admitted. Our criminal law admits it, but lays it down as a rule, that it may be admitted with caution. There is what is called violent presumption; that is, where such circumstances exist, as usually attend the fact. Presumptive proof of this nature is held sufficient to convict. I doubt much, whether reason or experience approve the doctrine. Reason tells us, that there may be all the circumstances that usually attend the fact, and yet without the fact itself. Experience evinces that it has been the case: for we have heard of persons convicted of a capital offence, and yet with their last breath asserting innocence. Nay, in the case of some who have been convicted of homicide, the persons who have been supposed to have been murdered, have afterwards been found alive.
But on abstract principles, a conclusion of certainty cannot be drawn from presumptive proof. Because, in cases of the most violent presumption, there is still a possibility of innocence; and where there is a possibility, there must be a doubt; and will you hang man, woman, or child, where there is a doubt?
In all cases there ought to be complete proof; because the convicted person is to be completely punished; and the jury, previous to this, must make complete oath of the guilt.
It is the ground of the doctrine of presumptive proof, that where you cannot help suspecting, you ought to be positive; --whereas the just conclusion would be, that where you cannot help suspecting, there you ought to suspect still, but no more.
It would be a curious question in arithmetic, how many uncertainties make a certainty? In mathematics, the three angles of a triangle are equal to two right angles. But these are all angles that are put together; that is, they are things of the same kind; but the greatest angle, and the longest side, will never make a triangle --because there is no inclusion of space. There must be a number of the same kind to make an aggregate whole; so that ten thousand possibilities, probabilities, and violent presumptions, can never constitute a certainty.
Presumptive proof, like the semi plena probatio of the Roman law, going but half-way towards proof, can never amount to proof at all. For , as the saying is, a miss is as good as a mile. I would therefore recommend to all jurors to take care that, unless the witnesses sware positively to the fact, they do not find a verdict-- guilty; because as the current cannot rise higher than the source, so the verdict of the juror ought not to be more absolute than the oath of the witness. In all cases, therefore, short of positive testimony, acquit.
These hints may also be of service to young attornies, and weak judges; so that honest people may not lose their lives, or be rendered infamous, without full proof of the offence. It is hard enough to suffer when there is full proof; but to be in the power of a jurors or a judges imagination, comparing and construing circumstances, and weighing possibilities, contingencies, and what might have been, or what might not have been, as the humour, caprice, wheel, or whim of the brain may suggest, is inconsistent with that fair trial which, in a free government, ought to be enjoyed. Was I a judge or juror, no one would I condemn without positive testimony of the fact. --For it would not be in my power to restore that fame or life which I took away from the innocent. And if a guilty person should escape, it was none of my look out; but the business of Providence to furnish proof, if it was intended that man should punish; and if proof is not furnished, let Providence take the matter on himself, and punish the culprit either in this life or in a future state. Invisible things belong to the Omniscient; and it would seem great arrogance in man, to take upon him to decide in cases of uncertainty. I hope, therefore, yet to see the doctrine of presumptive proof, in criminal cases, wholly, in courts of justice, discountenanced. I can declare that, in the course of my experience at the bar, I have had one hung, and several others within an ace of it, who were innocent; and this on the doctrine of presumption and probability. The one that was hung was a tory case, where the popular clamour was against the man; and light presumption became violent under such a charge.
I shall say no more on this subject; because it seems to me that I have been affecting to speak sense, whereas my business is to speak nonsense; this being the only way to keep out of the reach of criticism; because critics can say no more than you yourself allow: so that a charge of nonsense cannot hurt. It is thus that persons who have a long nose, or disproportion of some other feature, take the laugh upon themselves first, and so escape ridicule. The truth is, I will not give myself the trouble to write sense long. For I would as soon please fools as wise men; because the fools are the most numerous, and every prudent man will go with the majority. I shall return to the adventures of the Captain.