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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 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

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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 things 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 swear 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

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full proof of the offence. It is hard enough to suffer
when there is full proof; but to be in the power of a
juror's or a judge's 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

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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.

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