One or more of the senses enable the witness to swear positively to either of the two latter points. But the malice prepense must be inferred, from words, deeds, and circumstances. Upon this Dr. Omnibus sensibly observes, that this very fact proves the impropriety of hanging upon all occasions: and Mrs. Negoose remarks, that she is of the same opinion, on the authority of that ancient dictum, the authorship of which seems to be equally ascribed to Solomon and Sancho Panza—that “circumstances alter cases.”
It is really surprising, that so grave and sensible a man, as Mr. Simon Greenleaf, should have made the remark, which appears on page 74, vol. i., of his Treatise on Evidence,—“In both cases (civil and criminal) a verdict may well be founded on circumstances alone; and these often lead to a conclusion far more satisfactory than direct evidence may produce.” Mr. Greenleaf refers, for illustration of this opinion, to the case of Bodine, N. Y. Legal Observer, vol. iv. p. 89, et seq. Lawyer Bodkin’s work on evidence will, doubtless, correct this error.
Let us reason impartially. Compunction, in a dying hour, we cannot deny it, has established the fact, that innocent persons have been hung, now and then, upon positive evidence, the false witness confessing himself the murderer, in articulo mortis. Well, says Madam Moody, here is fresh proof of the great sinfulness of hanging.—To be sure.—But let our opponents have fair play. A. is found dead, evidently stabbed.—B. is seized upon suspicion.—C. heard B. declare he would have the heart’s blood of A.—D. saw B. with a knife in his hand, ten minutes before the murder.—E. finds a knife bloody, near the place of the murder.—F. recognizes the knife as his own, and by him lent to B. just before the time of the murder.—G. says the size of the wound is precisely the size of the knife.—H. says, that, when he arrested B. his hand and shirt-sleeve were bloody.—I. says he heard B. say, just after the murder, “I’ve got my revenge.” In the case supposed, C. D. E. F. G. H. and I. swear positively, each one to a particular fact. Here are seven witnesses. Here then is a chain of evidence, whereof each witness furnishes a single link. It is the opinion of Peake, Chitty, Starkie, Greenleaf, and all other writers, on the law of evidence, that this chain is often as strong or stronger, than it would be, were it fabricated by one man only. I will not deny, that Dr. Omnibus and Mrs. Negoose think differently.
An extraordinary example of circumstantial evidence, in a capital case, was related by Lord Eldon. A man was on trial for murder. The evidence against him, which was wholly circumstantial, was so very insufficient, that the prisoner, confident of acquittal, assumed an air of easy nonchalance. The officer, who had arrested the prisoner, and conducted the customary search, had exhibited, in court, the articles, found upon his person, at the time of his capture—a few articles of little value, and, among them, a fragment of a newspaper. The surgeon, who examined the body of the victim after death, produced the ball, which he had extracted from the wound, precisely as he found it. Enveloped in a wrapper of some sort, and with the blood dried upon it, it presented an almost unintelligible mass.
A basin of warm water was brought into court—the mass was softened—the wrapper carefully detached—it was the fragment of a newspaper, and fitted like the counterpart of an indenture to the fragment, taken by the officer from the prisoner’s person. He was hung. Dear me! says Mrs. Negoose, what a pity!
I regret to learn from the late London papers, that Mr. Horace Twiss is recently dead. No one, I am confident, will fail to join in this feeling of regret, who has enjoyed, as I have done, the perusal of his truly delightful work, “The Public and Private Life of Lord Chancellor Eldon.”
No. LIV.
A pleasant anecdote is related by Nichols, of Dean Swift, who, when his servant apologized for not cleaning his boots, on a journey, because they would soon be dirty again, directed him to get the horses in readiness immediately: and, upon the fellow’s remonstrance, that he had not eaten his breakfast, replied, that it was of little consequence, as he would soon be hungry again.
The American Irish are, undoubtedly, a very sweet people, when they are thoroughly washed; but they rarely think of washing themselves or their children—they are so soon dirty again. Hydrophobia is an Irish epidemic; and there are also some of the Native American Party, I fear, who have not been into water, since the Declaration of Independence.