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296 TRIAL OF JOHN W. WEBSTER.
deprived of life in the afternoon of the day mentioned, under such cir-
cumstances as lead to a strong belief that his death was caused by an
act of violence and by human agency.
This case is to be proved, if proved at all, by circumstantial evidence;
because it is not suggested that any direct evidence can be given, or that
any witness can be called to give direct testimony upon the main fact
of the killing. It becomes important, therefore, to state what circum-
stantial evidence is; to point out the distinction between that and posi-
tive or direct evidence; and to give you some idea of the mode in which
a judicial investigation is to be pursued by the aid of circumstantial
evidence.
The distinction, then, between direct and circumstantial evidence is
this. Direct or positive evidence is when a witness can be called to tes-
tify to the precise fact which is the subject of the issue in trial; that
is, in
a case of homicide, that the party accused did cause the death of the
deceased. Whatever may be the kind or force of the evidence, this is
the fact to be proved. But suppose no person was present on the occa-
sion of the death, and of course no one can be called to testify to it,-
is it wholly unsusceptible of legal proof? Experience has shown that
circumstantial evidence may be offered in such a case; that is, that a
body of facts may be proved of so conclusive a character as to warrant
a firm belief of the fact, quite as strong and certain as that on which
discreet men are accustomed to act in relation to their most important
concerns. It would be injurious to the best interests of society, if such
proof could not avail in judicial proceedings. If it were necessary
always to have positive evidence, how many criminal acts committed
in the community, destructive of its peace and subversive of its order
and security, would go wholly undetected and unpunished?
The necessity, therefore, of resorting to circumstantial evidence, if
it be a safe and reliable proceeding, is obvious and absolutes Crimes are
sepret. Most men, conscious of criminal purposes, and about the execu-
tion of criminal acts, seek the security of secrecy and darkness. It is
therefore necessary to use all other modes of evidence besides that of
direct testimony, provided such proofs may be relied on as leading to safe
and satisfactory conclusions; and,-thanks to a beneficent Providence!-
the laws of nature and the relations of things to each other are so linked
and combined together, that a medium of proof is often furnished, lead-
ing to inferences and conclusions as strong as those arising from direct
testimony.
On this subject, I will once more ask your attention to a remark in
the work already cited, East's Pleas of the Crown, chap. 5,§ 11. "Per-
haps," he says "strong circumstantial evidence, in cases of crimes like
this, committed for the most part in secret, is the most satisfactory of any
from whence to draw the conclusion of guilt; for men may be seduced
to perjury by many base motives to~ which the secret nature of the
offence may sometimes afford a temptation; but it can scarcely happen
that many circumstances, especially if they be such over which the
accuser could have no control, forming together the links of a transac-
tion, should all unfortunately concur to fix the presumption of guilt on
an individual and yet such a conclusion be erroneous."
Each of these modes of proof has its advantages and disadvantages;
it is not easy to compare their relative value. The advantage of posi-
tive evidence is, that you have the direct testimony of a witness to the
fact to be proved who if he speaks the truth, saw it done; and the only
question is, whether he is entitled to belief. The disadvantage is, that
the witness may be false and corrupt, and the case may not afford the
means of detecting his falsehood.
But, in a case of circumstantial evidence where no witness can tes-
tify directly to the fact to be proved, you arrive at it by a series of
other
facts which by experience we have found so associated with the fact in
question, as in the relation of cause and effect, that they lead to a~satis-
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