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ences and conclusions as strong as those arising from direct testimony." When we have the direct testimony of a witness to a fact, the witness may be false, and we may not have the means of detecting the falsehood, and this has given rise to the claim that presumptive evidence is most satisfactory, as witnesses may lie, but facts cannot. To this it has been replied that though facts themselves cannot lie, the men who testify to them may, and thus in both cases we run the risk of perjury. But It must be remembered that in the case of presumptive proofs we commonly rely upon a collection and comparison of various facts and circumstances coming from different witnesses, and that they are much less liable, as Judge Shaw says, to be falsely prepared and arranged, and thus falsehood and perjury are more likely to be detected. There have been cases, however, of fabricated circumstantial evidence, where a skillfully laid plot has surrounded an innocent person with the appearances of guilt. This may be elaborately and artfully done; and, especially where the mouth of the party was closed by the law, it has, doubtless, sometimes been done with fatal effect. The Bible affords us a simple illustration of this species of imposition. "When Joseph secretly placed a cup in the mouth of Benjamin's sack, and sent after him to accuse him of theft on the strength of his being found in the possession of apparently stolen property, he fabricated a case of circumstantial evidence against him. True, it was not pressed to a conviction, because it had an innocent purpose, being prompted by fraternal love, in which respect it was quite distinguishable from some of the devices of his father in his unregenerate days. For the reason above stated, the instances in which perjury enters into and vitiates presumptive proofs are few compared with those in which direct and positive proof is manufactured.
In cases of doubt in our ordinary affairs, and in the determination of civil cases by our courts, we judge in accordance with probabilities, that is, according to the preponderance of evidence; while in criminal cases, on account of the more serious consequences, we require the evidence to be of such a convincing nature as to exclude every reasonable hypothesis consistent with the innocence of the accused. This has been reduced to a maxim, so common as to be familiar to all, that the accused is entitled to the benefit of every reasonable donbt. But this doubt must not be a mere whim or caprice. It has been defined to be "that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge." In other words, proof beyond reasonable doubt is that which "establishes the truth of a fact to a reasonable and moral certainty, a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it."
When a case is thus made out we are not to be deterred from acting by fear, simply because the consequences of a barely possible mistake may be irreparable. Where circumstantial evidence has wrought in the mind a degree of conviction equal to that produced by direct testimony, we must act upon it in the same way. There is the possibility of error in either case, but human administration of law is ever imperfect and ever liable to mistake. We are not for that reason to nullify the law.
. As the author says, the prosecution of offenders under the discipline of the Church is, in some respects, analogous to criminal proceedings; but we venture the opinion that in a religious organization where, from the nature of the case, its standing and efficiency depend so much upon purity of reputation in its members, and the avoidance of scandal, the weight of probabilities, as in ordinary civil cases, is sufficient to justify a Church in protecting itself by removing the cause of offense.' It cannot afford the benefit of every doubt to those who are bringing reproach upon its name.
There is one function of circumstantial evidence of the utmost practical importance. In the great majority of instances the case does not depend upon either direct or presumptive proof alone, but rather upon a mixture of both. Unfortunately, it is of frequent occurrence that there is a strong conflict of direct testimony. We often hear the most violent contradictions between witnesses, called to testify to the same facts or circumstances from personal knowledge. This is not always to be attributed to perjury on one side or the other. It is a wise maxim of law that if a conflict between witnesses can be explained upon the hypothesis of honesty on both sides, we are so to explain it; if we cannot, we adopt the theory of perjury as a last resort; but, in either case, we are to find out the truth with as much certainty as possible. How is this to be done? We of course take account of the character of the witnesses, if known or proved, of their means of observation, their clearness or confusion of memory, their manner and appearance in testifying, and various other matters which may affect their credibility. But these tests will not always suffice. Courts and juries are sometimes led astray by perjury, and even upon ecclesiastical trials falsehood is possible, and may be so plausible as to "deceive the very elect." In these cases of conflicting direct evidence, we resort to presumptive evidence to settle the doubt. We inquire which is most rational; which best accords with the known facts; which is most probable upon a consideration of the character and conduct of the parties and of the witnesses; which is confirmed or weakened by any circumstances appearing in the case. Truth must be consistent with itself. If an alleged fact cannot co-exist with an established or admitted fact, it must, of course, be discarded. It may be that an apparently trivial circumstance, when carefully examined, absolutely contradicts a mass of testimony, and bars our way when we were rapidly driving on to a conclusion. There is occasionally confusion and apparent inconsistency in the attending circumstances, when explanation and comparison may reconcile the seeming discrepancies, so that through the tangled skein we may trace the white line of truth till it leads on to a sure and safe result.
It must be admitted, however, that human testimony, in all its varieties, is a very imperfect means of arriving at the truth. Such are our differences in constitution, in perceptive faculties and reasoning powers, in prejudices and prepossessions, that, upon the plainest matters, we seldom perfectly agree. Perhaps none of us suspect how much the images in our minds are distorted by the medium through which they enter. Even as to objects of sense we find great difficulty in getting an exact report. A number of eye-witnesses to the same occurrence frequently get such different and sometimes contradictory impressions of the same occurrence that no two can unite upon the details. Especially is this diversity manifested in the attempt to repeat conversations, or any kind of oral statements. A slight change of expression, even the omission or misplacing of a single word, will often entirely pervert the meaning. But when we consider how often the hearer fails to comprehend the true import of words at the time they are spoken, and how treacherous the memory is at all times, the more so when under the bias of interest or prejudice, we see the extreme caution necessary to be exercised in all this kind of evidence.
But this liability to error is by no means peculiar to legal investigations. It enters into the whole world of opinions, dividing mankind into an endless variety of parties. It invades the solemn domain of history, which has its conflicting schools and theories, and its hot partisanships. With all the proverbial uncertainty of law, it is in fact among the most certain of any of the departments of human inquiry. It gives us scientific and logical modes of proceeding, so that even when we grope our way in the midst of confused elements, we have light upon our path. If we adhere to established principles, and follow where experience guides us, we shall best render to our fellow-men such measure of justice as is possible to our limited means of knowledge, and our imperfect judgment.
AttT. II.—THE ETHICS OF SINCERITY.
Sincerity is a fundamental virtue. Without it there can be no moral excellence of character and conduct. But is it, as many think, the all-sufficient virtue? They hold any line of belief and action amply vindicated by the fact that it was the honest following of individual judgment and conscience. If a man speak out his own convictions of what is true, and act out his own convictions of what is right, what more can be required? If he did otherwise, would he not be culpable? "I tell things as I see them; I do my duty as I understand it. I may be mistaken, but I am surely sincere. Therefore, I am free from reproach. My own heart approves, and God, who knows my honesty, must approve me. If men condemn, they are either ignorant or unjust."
This plea is plausible. It professes to be based on the ethical axiom that intelligence and volition condition and measure responsibility. It appeals to common sense, which has in numberless instances accepted the excuse, " He knew no better." Much Scripture is cited in its support. But thoughtful men shrink from its far-reaching consequences. The idolater claims sincerity as well as the worshiper of Jehovah, the Mormon as well as the Christian, the heretic as well as the orthodox, the infidel as well as the believer. Some persons believe in communism, some in free love, some in persecuting unto death those who reject their creed; there are even found in our day and land a few who believe that they should kill their own children to the glory of God. What error, vice, crime, however monstrous and pernicious, may not be justified if this plea be admitted? Besides, often as we have urged in our own behalf, and acknowledged in behalf of others, sincerity of conviction as a valid ground of acquittal from censure, we have not less frequently condemned persons, sometimes with severe scorn and indignation, on account of their avowed opinions and deeds, without denying that they really held those opinions, and that their deeds conformed to their own code of morals.
Bead the fourteenth chapter of the Epistle to the Bomans, and the tenth of the first Epistle to the Corinthians. Difference of opinion, and hence of practice, existed in the Churches about the lawfulness or obligation of eating certain meats and observing certain days; and Paul wrote that every man should follow his own convictions. "Let not him that eateth despise him that eateth not; and let not him which eateth not judge him that eateth: for God hath received him." "One man esteemeth one day above another, another esteemeth every day alike. Let every man be fully persuaded in his own mind." "For why is my liberty judged of another man's conscience?" These passages seem to teach that sincerity in obeying conscience is the test of uprightness and divine approval; that men who pursue contrary lines of conduct may be equally accepted of God, because they agree in doing what they conceive to be his will. "Wise and noble words of liberty and toleration!" certain persons cry out; "how they rebuke the narrowness and despotism of Churches that insist on one faith, and proscribe all who do not think and do like them!" But lest they confound liberty and license, let them take along