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kind. Evidence, Gentlemen, so far as there is any occasion of divid-
ing it, for the purpose of this opening, may be divided into direct and
circumstantial proof. Direct evidence needs no explanation ; and, in
point of fact, there is none of it in this case. But merely for the pur-
pose of convenience, I will say, that direct evidence consists of this
where the testimony is derived from persons who have actual knowl-
edge of the facts in dispute-from persons who have actual knowledge
of the matter they come to prove.
For instance, Gentlemen, if a person comes here and swears he
saw a certain transaction take place,-there is direct evidence ; and
all the Jury would have to inquire into would be whether they believed
the man or not. If they believed him, there is direct evidence of a
particular fact, which he is brought to sustain.
But circumstantial evidence is, where a fact is attempted to be
proved, not by anybody who saw it, not by any one who knows it,
but by proving in advance certain other circumstances, and certain
other facts, and then drawing a conclusion, from those facts and cir-
cumstances, that these particular facts which we are endeavoring to
ascertain exist. This is called circumstantial evidence. Where the
Government,- for instance, taking a case like this,- where the Gov-
ernment undertake to prove a certain fact, to wit, that a man was
murdered. They bring nobody who saw it; but they go to work and
prove a certain quantity of other facts,-they may be meny, or they
may be few: and having proved those other facts, they say we draw
a conclusion, that the main fact was as we contend it was,-that is,
that the murder was committed.
Now, Gentlemen, as you see at once, in this matter of evidence,
there is no comparison between the strength of direct and circumstan-
tial evidence. Circumstantial evidence is weak, compared with direct;
and for the reason that the opportunities for human error are multi-
plied. All we can do, in the investigation of facts-all we ever can
do - is to approximate towards certainty.
Nothing human is infallible. On the contrary, everything is falli-
ble. All we can do is to approximate; and we approximate near or
at a distance, in accordance with the means we have at our command.
Now, Gentlemen, if a murder is proved by direct evidence, what
are the chances of error? A man comes here, and swears to a cer-
tain fact: What are the chances of a Jury being led into error ?
The chances depend upon his lying. If he swears falsely, then we
are misled. But he comes, and swears to a solitary fact. And he is
not likely to mislead us, because it is so simple.
Take a case of circumstantial evidence. The proof sometimes
consists, as in this case, of numerous facts-of scores of facts.
Every single fact is a distinct issue. Every single fact must be
proved, beyond a reasonable doubt. Very well. Here the chnnces of
error accumulate.
If they prove one fact, by one man, he may lie. If they prove
another fact, by another man, he may lie; and so the chances of error
multiply. And then, after all the circumstances are in, what do you
do with them ? Then you are to draw the correct conclusion from
them. Human judgment is called in, to draw the accurate conclusion
from these facts. And here there is a great source of error. Cir-
cumstantial proof is exposed to error from beginning to end ; errors
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