citizens, selected and impartial, who, on particular occasions, or in particular causes, are vested with discretionary powers to try the truth of facts, on which depend the property, the liberty, the reputation, and the lives of their fellow-citizens.

Having described what I mean when I speak of juries, it is proper that I should assign, in the fullest and clearest manner, my reasons for some parts of my description.

The first part in this description, which has drawn your most marked attention, is, probably, that which represents the powers, vested in juries, as discretionary. This part, therefore, merits the first illustration. It will be remembered all along, that the discretionary power vested in juries is a power to try the truth of facts. "Ad quæstionem facti respondent juratores."

The truth of facts is tried by evidence. The principal species of evidence, which comes before juries, is the testimony of witnesses.

In a former lecture,2 I had occasion to observe, that human testimony is a source of evidence altogether original, suggested by our constitution; and not acquired, though it is sometimes corroborated, and more frequently corrected, by considerations arising from experience. I had occasion further to observe, that, in no case, the law orders a witness to be believed; for the testimony of a thousand witnesses may not produce belief; and that, in no case, the law orders a witness not to be believed; for belief may be the unavoidable result of his testimony. These general positions, then laid down, it is now our business to fortify and apply. If we shall be successful in fortifying and applying them; we shall see, in a new and in a very striking light, the sublime principle of the institution of juries.

It is tedious, and it is painful, to travel through all the [1 See Trial by Evidence.] 2 Ante, vol. 1. p. 498-500.

numerous degrees, into which it has been attempted to arrange the force of evidence. Some writers on the subject have divided proofs into such as are near, and such as are remote. Others have been adventurous enough to define the precise number of each, which is necessary to superinduce the condemnation of a person, who is accused. One says, two will be sufficient: a second says, three are necessary a third fixes upon a number different from either. They have never reflected, that evidence arises from the circumstances attending the fact: that those circumstances should be considered in a collected and not in a separate view; and that on the more or less intimate connection which subsists between them, the strength or weakness of the evidence resulting from them depends.

The truth of this remark will sufficiently appear, if we consider separately any of the presumptions enumerated by those writers on the criminal law. There is not one of them, which may not appear favorable, or unfavorable, or indifferent to the person under trial. A man, with a bloody sword in his hand, is seen running from a house. On entering it, a person run through the body, and no other person, is found there. Would not the presumption be strong, that the man, who ran from the house was the assassin? But should a jury be compelled, on this evidence, to convict him? Should he not be allowed to prove, if he can, the connection of this strong circumstance against him with another, in his favor, equally strong-that, passing the door of the house, he was drawn, by the cries of the person assassinated, to his assistance, and suddenly seized the poignard which the assassin had left in his side? The weight of any one circumstance cannot be ascertained independently of others: the number and connection of those others cannot be specified, previously, in a didactic treatise upon the degrees of evidence.

Thus it is with regard to evidence arising from circum

stances will more success attend an attempt to ascertain systematically the degrees of evidence arising from positive testimony? This depends upon the character of him who delivers, and upon the character of him who receives it. That, which would be believed from the mouth of a witness famed for his integrity and good sense, would be disbelieved, if told by a witness remarkable for falsehood or credulity. A person, hackneyed in the ways and vices of the world, who has deceived and who has been deceived a thousand times, is slow to credit testimony. An undesigning countryman, who has never practised nor experienced the artifices of fraud, believes implicitly everything he hears. Can the characters of witnesses-can the characters of jurors be graduated in a dissertation upon evidence? And yet, in each particular case, the force of evidence must depend upon the character both of witnesses and jurors.

For these reasons, we find, in the institutions of antiquity, no general rules prescribed concerning the force of testimony, or the weight of presumptions; the Emperor Hadrian expressly declares the impracticability of prescribing them. When one of his judges applied to him for a rescript, containing particular directions upon this subject; the emperor wrote him an answer, in which the sentiment we have mentioned is beautifully exhibited. "No certain rule," says he, "can be given with regard to the degree of evidence, which will be sufficient in every cause that shall occur. This only I can recommend to you in general; that you by no means confine yourself to any one kind or degree; but that, according to the nature and the circumstances of every case, you estimate, in your own mind, what you believe, and what you do not think to be sufficiently proved." 1

The evidence of the sciences is very different from the

12 M'D. Ins. 631.

evidence of facts. In the sciences, evidence depends on causes which are fixed and immovable, liable to no fluctuation or uncertainty arising from the characters or conduct of men. In the sciences, truths, if self-evident, are instantly known. If their evidence depend on their connections with other truths, it is evinced by tracing and discovering those connections. In facts, it is otherwise. They consist not of principles which are self-evident; nor can their existence be traced or discovered by any necessary connection with self-evident principles. As facts, therefore, are neither principles, nor necessarily connected with principles; the evidence of facts is unsusceptible of a general theory or rules.

Let us then forbear to attempt a graduated scale of this kind of evidence. It is the philosopher's stone of criminal jurisprudence. It is impossible to establish general rules, by which a complete proof may be distinguished from a proof that is incomplete, and presumptions slightly probable may be distinguished from conjectures altogether uncertain.

If, therefore, the evidence of facts can be ascertained, distinguished, and estimated by no system of general rules; the consequence unavoidably is, that, in every case, the evidence of facts must depend upon circumstances, which to that case are peculiar. The farther consequence unavoidably is, that the power of deciding on the evidence of facts must be a discretionary power; for it is a power of deciding on a subject unsusceptible of general principles or rules.

And, after all, is it, at last, come to this? Do we live by discretionary power? Is this the final result of the boasted trial by jury? In Turkey, life and everything precious in life depend on the nod of one man: here, it seems, on the nod of twelve. There is a difference, indeed, in number: but, in principle, where is the difference?

Such is, and such must be our doom. It is agreed, on all hands, that, in every state, there must be somewhere a power supreme, arbitrary, absolute, uncontrollable: these are strong expressions for discretionary power. There have been, it is true, different opinions concerning the question-where does this power reside?

What security, then, it may next be asked, is there, under any government, for the enjoyment of property, character, freedom, and life; if, under every government, the last resolution of the tedious and expensive process is into arbitrary or discretionary power?

Let us not despair: perhaps, after a little investigation, we may be happy enough to discover some emerging isthmus, on which, amidst this unstable, watery scene, that surrounds us, we may be able to find rest for the soles of our feet.

It has been shown, at large, that it is impracticable, by any determinate rules, to ascertain or graduate the force of evidence in facts; and that, consequently, juries, who decide on the evidence of facts, must possess discretionary powers. But though it be impracticable to ascertain this matter by determinate rules; is it, therefore, impracticable also to give and acquire some conception of it by a general reference? Perhaps not.

Let us try: let the reference be as comprehensive as possible: if we must live by discretion, let the exercise of that discretion be universally unanimous. If there must be, in every political society, an absolute and discretionary power over even the lives of the citizens; let the operations of that power be such, as would be sanctioned by unanimous and universal approbation. Suppose then, that, in pursuing this train of thought, we assume the following position—that the evidence, upon which a citizen is condemned, should be such as would govern the judgment of the whole society. Let us, first, inquire, whether this position be reason