1. See Adhemar Esmein, A History of Continental Criminal Procedure in Specific Reference to France (Boston, 1913); Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Mass., 1983); Mirjan R. Damaska, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (New Haven, 1986); Walter Ullmann, "Medieval Principles of Evidence," Law Quarterly Review 62 (1946): 77-87; Andre Laingue and Arlette Lebigry, Histoire du droit penale, 2: La procedure criminelle (Paris, 1986); Raoul Van continue

Caenegem, "History of European Civil Procedure," International Encyclopedia of Comparative Law , vol. 16 (Tübingen, 1973), 2, 3-79.

2. The Romano-canon system of proof was already in place in the northern province by the late thirteenth century, and by the early fourteenth century it was fully implemented in the two English archdioceses. See Charles Donahue, "Proof by Witnesses in the Church Courts of Medieval England: An Imperfect Reception of the Learned Law," in On the Laws and Customs of England , ed. Morris Arnold et al. (Chapel Hill, 1981), 141. While the English ecclesiastical courts took over the system of proof outlined in the academic treatises, some variation existed in practice. Thus some testimony was accepted from those who were not eye-witnesses, and some who testified should technically have been disqualified (127-158).

3. Theodore Plucknett, A Concise History of the Common Law , 5th ed. (Boston, 1956), 298, 433. Bracton's rules also echo canonist witness disqualifications. Bracton was first printed in 1569. See also Plucknett, "The Relations between Roman Law and English Common Law," University of Toronto Law Journal 2 (1939): 24.

4. Michael Dalton, The Country Justice (London, 1618), 261-262.

5. John Langbein, Prosecuting Crime in the Renaissance: England, Germany, France (Cambridge, 1974), 124.

6. See Richard Chamberlain, The Complete Justice (London, 1681), 449.

7. See J. S. Cockburn and Thomas A. Green, eds., Twelve Good Men and True: The Criminal Trial Jury in England, 1200-1800 (Princeton, 1988).

8. Sir Thomas Smith, De Republica Anglorum (Cambridge, 1906), 98.

9. Sir John Fortescue, De Laudibus Legum Anglie , ed. and trans. S. B. Chrimes (Cambridge, Mass., 1942), chaps. 25-26.

10. Smith, De Republica Anglorum , 99-101. See also 67, 79, 80. For discussions of witnesses who are jurors and infamous and interested witnesses see Anon., The Law of Evidence , 2 vols. (Savoy, 1717), 8, 20-66. Richard L. Marcus, "The Tudor Treason Trials: Some Observations on the Emergence of Forensic Themes," University of Illinois Law Review (1984): 698, 699-701, citing Trial of Udall (1590), 1 State Trials , 1281; Kevin Teeven, "Problems of Proof and Early English Contract Law," Cambrian Law Review (1984): 54, 55.

11. Geoffrey Elton, The Tudor Constitution (London, 1960), 67-68, 72-76.

12. Treason Act, 13 Car. 3, c. 1. For discussion of the evolution of the 1696 treason legislation, see Samuel Reznick, "The Statute of 1696: A Pioneer Measure in the Reform of Judicial Procedure in England," Jour - soft

nal of Modern History 2 (1930): 5-26; Walter Simon, "The Evolution of Treason," Tulane Law Review 35 (1961): 669-698; Lamar Hill, "The Two-Witness Rule in English Treason Trials: Some Comments on the Emergence of Procedural Law," American Journal of Legal History 12 (1968): 95-111.

13. T. B. Howell, Complete Collection of State Trials , 34 vols. (London, 1809-1826), 2: 15-18. The issue of a single witness was also raised in the Trial of John Fisher, Bishop of Rochester (1535), 1 State Trials , 401, 402, and the Trial of Sir Nicholas Throckmorton (1554), 1 State Trials , 880, 886. When Bacon, during his impeachment trial of 1620, objected to a single witness as insufficient, Coke replied that one witness was sufficient especially to prove "a work of darkness." 2 State Trials , 1093.

14. See John H. Wigmore, "The Required Number of Witnesses: A Brief History of the Numerical System in England." Harvard Law Review 15 (1901): 82-108.

15. Chamberlain's Complete Justice (London, 1681) lists offenses that required either one or two witnesses. His rather lengthy list of offenses requiring two witnesses were all established by statute, perhaps suggesting the Crown and Parliament were more willing to invoke the two-witness rule. Laymen may have been less suspicious of Romano-canon features than was the legal profession. The statutes cited include those passed during the reigns of Henry VIII, Edward VI, Elizabeth, James I, and Charles II (450). Two witnesses were required to convict a woman for concealing the death of her child. 21 Jac., c. 27 (1623). Perjury, too, required two witnesses. Legal commentators such as Hale who contrast the benefits of the English legal system with that of the Continent, however, continue to emphasize that English juries were not required to have a specified number of witnesses. Sir Matthew Hale, History and Analysis of the Common Law of England (London, 1820), 346-347. Wigmore suggests that most perjury cases prior to 1640 had been tried by Star Chamber, which, like Chancery and the ecclesiastical courts, regularly employed the two-witness rule, and that the two-witness requirement continued after such cases were transferred to the common-law courts. Adultery, which was made a felony in 1650 and required two witnesses, also had been previously tried by the ecclesiastical courts.

16. Robert Boyle, "Some Considerations about the Reasonableness of Reason and Religion," in The Works of Robert Boyle (London, 1772), 4: 182.

17. Maija Jansson, "Matthew Hale on Judges and Judging," Journal of Legal History 9 (1989): 208. Jewish law "expected a full evidence to convict such a malefactor and would not pass that sentence only upon con- soft

nections and implorations of circumstances that contained not in themselves a full evidence."

18. Donald Veall, The Popular Movement for Law Reform, 1640-1660 (Oxford, 1970), 128, 154; Stuart E. Prall, The Agitation for Law Reform during the Puritan Revolution, 1640-1660 (The Hague, 1966), 71. See also Lilburne, "Large Petition of the Levellers" (1647), in Puritanism and Liberty , ed. A. S. P. Woodhouse (Chicago, 1938), 322-323; Jansson, "Matthew Hale on Judges," 208.

19. Prall, Agitation for Law Reform , 22. Admiralty, which employed civilian procedure, was left alone during the Commonwealth and Protectorate (34).

20. Edwin Powers, Crime and Punishment in Early Massachusetts, 1620-1692 (Boston, 1966), 91. The phrase "that which is equivalent" was interpreted to mean one clear witness and "concurrent and concluding circumstances." See also Gail Marcus, "'Due Execution of the Generall Rules of Righteousnesse': Criminal Proceedings in New Haven Town and Colony, 1638-1658," in Saints and Revolutionaries: Essays in American History , ed. David Hall (New York, 1984).

21. It has been suggested that New Englanders were less fearful of the civil law than were the English because it was practiced by fellow Calvinists in Scotland and the Netherlands.

22. See William Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830 (Cambridge, Mass., 1975).

23. See Gerard Reedy, The Bible and Reason: Anglicans and Scripture in Late Seventeenth-Century England (Philadelphia, 1985); Henry Van Leeuwen, The Problem of Certainty in English Thought, 1630-1690 (The Hague, 1963).

24. For Lilburne see Van Leeuwen, Problem of Certainty , 40; see also Edward Stillingfleet, Origines Sacrae (London, 1662), 237-240; Seth Ward, A Philosophical Essay toward an Eviction of the Being and Attributes of God , 5th ed., 1677 (London, 1654), 90, 99-100, 102, 117.

25. Sir Matthew Hale, The Primitive Origination of Mankind (London, 1677), 129. Hale occasionally employs civil law language. He notes "That evidence at Law which taken singly or apart makes but an imperfect proof, semiplena probatio , yet in conjunction with others, like Silurus his twigs, that were easily broken apart, but in conjunction or union were not to be broken" (130). Hale's Analysis of the Laws of England (London, 1713) appears to have been influenced by the structure of Justinian's Institutes .

26. Sir Matthew Hale, The History of the Common Law of England , continue

ed. Charles M. Gray (Chicago, 1971), 163-164. For a similar statement emphasizing jurors' knowledge of the accused, the nature of the offense, and the credit of the accused and his witnesses, see Zachary Babington, Advice to Grand Jurors in Cases of Blood (London, 1677), 4.

27. Hale, History of the Common Law , 165. Jurors were of the vicinage and "oftentimes know the Witnesses and the Parties" (167).

28. Ibid., 164, 165, 167.

27. Hale, History of the Common Law , 165. Jurors were of the vicinage and "oftentimes know the Witnesses and the Parties" (167).

28. Ibid., 164, 165, 167.

29. John Locke, An Essay Concerning Human Understanding , ed. Alexander Fraser, 2 vols. (New York, 1959), bk. 4, chap. 4, sec. 4.

30. Ibid., bk. 4, chap. 4, sec. 6.

31. Ibid., bk. 4, chap. 4, sec. 5.

29. John Locke, An Essay Concerning Human Understanding , ed. Alexander Fraser, 2 vols. (New York, 1959), bk. 4, chap. 4, sec. 4.

30. Ibid., bk. 4, chap. 4, sec. 6.

31. Ibid., bk. 4, chap. 4, sec. 5.

29. John Locke, An Essay Concerning Human Understanding , ed. Alexander Fraser, 2 vols. (New York, 1959), bk. 4, chap. 4, sec. 4.

30. Ibid., bk. 4, chap. 4, sec. 6.

31. Ibid., bk. 4, chap. 4, sec. 5.

32. Geoffrey Gilbert, The Law of Evidence (London, 1756), 121-161. The 1769 and 1788 editions are almost identical. The 1791 edition by Capel Lofft was much enlarged. For a discussion of the treatise tradition, see A. W. Simpson, "The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature," University of Chicago Law Review 48 (1981): 632-680.

33. Gilbert, Law of Evidence , 1756 ed., 150-151; see also 154-155. See also Capel Lofft, 1791 ed., 1: 403-409. John Morgan's Essays Upon the Law of Evidence , 2 vols. (London, 1789) is very similar to Gilbert. He notes one witness is sufficient to prove any single fact, although the concurrence of two or more corroborate the proof. He emphasizes the importance of observing the quality, age, education, understanding, behavior, and inclination of the witnesses. The credit of witnesses was to be judged from their state and dignity in the world. Their skill, knowledge, memory, and moral condition were also important. The lowest proof was the oath of one witness. Two witnesses were "one step higher" than one witness and were sometimes required by law. 1: 9, 12, 46-47, 293-294, 296. For a discussion of witness credibility in connection with the grand jury see Sir John Somers, The Security of English-Men's Lives (London, 1681), 38, 142. See also Joseph Keble, An Assistance to Justices of the Peace (London, 1683), 264; George Stanhope, The Duty of Witnesses. A Sermon (London, 1701). Stanhope, a chaplain to the king, employs the concept of moral certainty and suggests that two witnesses are usually required (26). The sermon was preached at the Maidstone Assizes before L. C. J. Holt and was published at the request of the high sheriff of Kent.

34. William M. Best, The Principles of the Law of Evidence , 6th ed. (London, 1875), 18-19, 20, 21, 22. See also 24.

35. Ibid., 102.

36. Ibid., 749.

34. William M. Best, The Principles of the Law of Evidence , 6th ed. (London, 1875), 18-19, 20, 21, 22. See also 24.

35. Ibid., 102.

36. Ibid., 749.

34. William M. Best, The Principles of the Law of Evidence , 6th ed. (London, 1875), 18-19, 20, 21, 22. See also 24.

35. Ibid., 102.

36. Ibid., 749.

37. John H. Wigmore, "History of the Hearsay Rule," Harvard Law Review 17 (1904): 436-458; R. W. Baker, The Hearsay Rule (London, continue

1950); Edward M. Morgan, Some Problems of Proof under the Anglo-American System of Litigation (New York, 1956), 106-140.

38. In 1650, jurors in Bennett v. Hartford were told that if they give evidence, it should be done in open court. Baker, Hearsay Rule , 10, citing (1650) Style 233. We do not yet know about the evolution of the concept that jurors were not to know facts on personal knowledge and "should be in a state of legal ignorance." Best, Principles of the Law of Evidence , 117. Hearsay evidence was rejected by Somers, in connection with grand jury "verdicts." Somers, Security of English-Men's Lives , 141.

39. See Barbara Shapiro, Probability and Certainty in Seventeenth-Century England (Princeton, 1983), 21, 274.

40. Hale, Primitive Origination of Mankind , 128.

41. Locke, Essay Concerning Human Understanding , bk. 4, chap. 14, sec. 10.

42. Wigmore, "History of the Hearsay Rule," 435, 445, 454. Edward M. Morgan, "Hearsay Dangers and the Application of the Hearsay Concept," Harvard Law Review 62 (1948): 180-181; Baker, Hearsay Rule , 7-9.

43. Edward Waterhouse, Fortescue Illustratus (London, 1663), 350.

44. Even after the hearsay exclusion was established, hearsay was considered acceptable if used to confirm or corroborate other testimony. This principle was employed in Raleigh's trial of 1603. It is to be found in Gilbert's Law of Evidence and was accepted until the end of the eighteenth century. Wigmore, "History of the Hearsay Rule," 443, 447. Several eighteenth-century texts connected the hearsay rule with the best evidence rule. Baker, Hearsay Rule , 15.

45. Best, Principles of the Law of Evidence , 377.

46. See Alessandro Giuliani, "The Influence of Rhetoric on the Law of Evidence and Pleading," Juridical Review 62 (1969): 216-251. For a more general discussion of rhetoric and English law, see D. S. Bland, "Rhetoric and the Law Student in Sixteenth-Century England," Studies in Philology 53 (1957): 498-508; R. J. Schoeck, "Rhetoric and Law in Sixteenth-Century England," Studies in Philology 50 (1953): 110-127; Wilfred Prest, "Dialectical Origins of Finch's Law," Cambridge Law Journal 36 (1977): 326-352. See also V. P. Mortari, "Dialectica e giurisprudenza: Studio sui trattati di dialettica legale del sec. XVI," Annali di Storia del Diritto 1 (1957): 293-401.

47. Quintilian, Institutes of the Orator (London, 1777), bk. 4, chap. 9.

48. Ibid.

47. Quintilian, Institutes of the Orator (London, 1777), bk. 4, chap. 9.

48. Ibid.

49. For a similar treatment in Cicero, see De partitione oratoria , Loeb Classical Library, vol. 4. Cicero considers the qualities of persons, e.g. continue

health, appearance, age, sex, intellectual abilities, moral character, emotional dispositions, social condition, education, occupation, associates, power, and wealth. The place and time (day, night, season) of the event are to be considered, as are the traces (weapon, blood, crying out). Also to be considered were trembling and changing color. Consideration of these circumstances of an action could lead to the discovery of probability. For a somewhat more elaborate treatment, see Cicero, De inventione , Loeb Classical Library, vol. 2.

50. For examples of this tradition see Tancred, Ordo iudiciarius ; William Durantis, Speculum iudiciale ; Albertus Gandinus, Tractatus de maleficiis ; Thomas de Piperata, Tractatus de fama ; Julius Clarus, Practica criminalis ; Joannes Menochius, De praesumptionibus, conjecturis, signis et indiciis, commentoris (1608); Antonius Matthaeus, De criminibus ; Prosper Farinaccius, Praxis et theorica criminales ; Josephus Mascardus, Les conclusiones probationum .

51. See Richard Fraher, "Conviction According to Conscience: The Medieval Jurist's Debate Concerning Judicial Discretion and the Law of Proof," Law and History Review 7 (1989): 23-88; Giorgia Alessi Palazzola, Prova legale e pena: La crisi del sistema tra evo medio e moderno (Naples, 1979). See also James Franklin, "The Ancient Legal Sources of Seventeenth-Century Probability," in The Uses of Antiquity in the Scientific Revolution , ed. S. Gaukroger, pub. forthcoming.

52. See Fraher, "Conviction According to Conscience," passim; Palazzola, Prova legale e pena , 61-66, 79-81; John Langbein, Torture and the Law of Proof (Chicago, 1977); Mirjan Damaska, "The Death of Legal Torture," Yale Law Journal 87 (1978): 866. The concept of half proof appears c. 1200 in the writing of Glossator Azo. Franklin, "Ancient Sources," citing Azo, Lectura super Codicem , bk. 4, tit. 1 (reprint, Turin, 1966), 254.

53. Bartolus pointed out that transient facts cannot be notorious. Fraher, "Conviction According to Conscience," 51-54. See also Damaska, "Death of Legal Torture," 867.

54. Fraher, "Conviction According to Conscience," 55-56. See also Palazzola, Prova legale e pena , passim.

55. The efforts of judges of the Parlement of Paris to gain control over and limit the use of torture by provincial judges not only reduced the use of judicial torture but also increased reliance on circumstantial evidence—evidence which constituted less than "legal proof." See Alfred Soman, "Criminal Jurisprudence in Ancien-Regime France: The Parlement of Paris in the Sixteenth and Seventeenth Centuries," in Crime and Criminal Justice in Europe and Canada , ed. Louis A. Knafla (Waterloo, Canada, 1981), 43-75, and "La justice criminelle aux XVIe-XVIIe siècles: continue

Le Parlement de Paris et les sièges subalternes," in La faute, la repression et le pardon: Philologie et histoire jusque à 1610 , vol. 1 (Brest, 1982), 16-52. Soman's research complements that of John Langbein. See Langbein, Torture and the Law of Proof . See also Damaska, "Death of Legal Torture," 860-883. The Carolina appears to insist on the necessity of full legal proof, but sixteenth-century Germany as well as France used the poena extraordinaria (867).

56. Palazzola, Prova legale e pena , 46-47. The same categories are to be found in Summa de ordine judiciario of Damoso, cited in Palazzola (47-48). James Franklin suggests that canonists and civilians developed gradations of proof from the Digest and that the violent-probable-light grading of presumptions can be found by the 1150s. In the mid-thirteenth century, Aquinas identified three varieties of suspicion. "One is violent, to the contrary of which proof is not admitted, as when someone is found alone with a woman, naked on a bed, in a secret place, at a time apt for intercourse. The second is the probable ( probabilis ). . . . Third is the rash, which arises from a light conjecture . . . although the first kind does not have the certainty of something actually sensed, or the certainty of demonstration, it does have certainty sufficient for proof in law. For the same kind of certainty is not required in all things, as is said in Aristotle's Ethics ." Quoted in Franklin, "Ancient Sources," 12. Aquinas also mentioned the half proofs of the lawyers.

57. Ibid., 115-117. Menochius also indicates that judges might condemn on the basis of presumption in the absence of full proof if penalties were diminished. Similar treatments are to be found in the treatises of Alciatus, Carpzov, and Matthaeus.

56. Palazzola, Prova legale e pena , 46-47. The same categories are to be found in Summa de ordine judiciario of Damoso, cited in Palazzola (47-48). James Franklin suggests that canonists and civilians developed gradations of proof from the Digest and that the violent-probable-light grading of presumptions can be found by the 1150s. In the mid-thirteenth century, Aquinas identified three varieties of suspicion. "One is violent, to the contrary of which proof is not admitted, as when someone is found alone with a woman, naked on a bed, in a secret place, at a time apt for intercourse. The second is the probable ( probabilis ). . . . Third is the rash, which arises from a light conjecture . . . although the first kind does not have the certainty of something actually sensed, or the certainty of demonstration, it does have certainty sufficient for proof in law. For the same kind of certainty is not required in all things, as is said in Aristotle's Ethics ." Quoted in Franklin, "Ancient Sources," 12. Aquinas also mentioned the half proofs of the lawyers.

57. Ibid., 115-117. Menochius also indicates that judges might condemn on the basis of presumption in the absence of full proof if penalties were diminished. Similar treatments are to be found in the treatises of Alciatus, Carpzov, and Matthaeus.

58. Cesare Beccaria, An Essay on Crimes and Punishment , 1983 ed., Brookline, Mass. (1764), 54-55.

59. See Paul Foriers, "La conception de la preuve dans l'école le droit natural," in La Preuve: Deuxième partie: Moyen âge et temps modernes . Recueils de la Société Jean Bodin pour l'histoire comparative des institutions (Brussels, 1965), 169-192.

60. Marcus, "Tudor Treason Trials," 702, citing 2 State Trials , 15.

61. Henry Bracton, On the Laws and Customs of England , ed. and trans. Samuel E. Thorne, 4 vols. (Cambridge, Mass., 1968), 4: 330. An edition appeared in 1640.

62. Ibid., 2: 386; see also 2: 404.

61. Henry Bracton, On the Laws and Customs of England , ed. and trans. Samuel E. Thorne, 4 vols. (Cambridge, Mass., 1968), 4: 330. An edition appeared in 1640.

62. Ibid., 2: 386; see also 2: 404.

63. The bloody sword example of violent presumption was a standard of medieval jurists. Some Romano-canonist medieval lawyers, however, suggested the possibility of self-defense or other explanations. Ullmann, "Medieval Principles of Evidence," 86.

64. Sir Edward Coke, The First Part of the Institutes of the Lawes of continue

England: or, A Commentary upon Littleton (1628), sec. 1, 6b. Coke indicated in connection with charter, or feoffments, that where the witnesses were dead, violent presumption of continual and quiet possession "stands for a proofe." The bloody sword example of presumption also appears in William Staunford, Les plees del coron (London, 1557), 11b.3, c. 14. This volume is based primarily on Bracton and the yearbooks. There were 6 editions before 1600.

65. See Sir Edward Coke, Third Part of the Institutes of the Lawes of England (Philadelphia, 1853), chap. 104, 232.

66. Thus Coke noted that no presumptions were to be admitted against presumptions of law (ibid.). Wrongs shall never be presumed (ibid., 373). The Anglo-American presumption of innocence may be derived from this maxim.

67. An alternative approach was to reduce the standard further and allow half proofs for conviction. Jean Bodin advocated this approach to proof in witchcraft cases.

68. For several decades after the statutes both the common people and the governing classes believed in the possibility of witchcraft. Without the willing participation of accusers, justices of the peace, grand juries, judges, and juries, the processes of arrest, examination, indictment, trial, and punishment could not have occurred. For discussion of witchcraft in England, see Alan Macfarlane, Witchcraft in Tudor and Stuart England (London, 1979); Keith Thomas, Religion and the Decline of Magic (New York, 1979); C. L'Estrange Ewen, Witch Hunters and Witch Trials (London, 1929); Shapiro, Probability and Certainty , 194-226. See also Christina Larner, "Crimen Exceptum? The Crime of Witchcraft in Europe," in Crime and the Law: The Social History of Crime in Western Europe Since 1500 , ed. V. A. C. Gatrell, et al. (London 1980), 49-75; Brian Levack, The Witch-hunt in Early Modern Europe (London, 1987).

69. Gifford thus invoked civil law standards for conviction. George Gifford, "Dialogue Concerning Witches and Witchcraft," in The Witchcraft Papers , ed. Peter Haining (1593; reprint, London, 1974); Thomas Cooper, The Mysterie of Witchcraft (London, 1617), 276-278.

70. John Cotta, The Trial of Witchcraft (London, 1616), 85. Cotta's work was dedicated to Sir Edward Coke and the legal profession. Reginald Scot, Discoverie of Witchcraft (1584; reprint, London, 1964), 42; see also 40-43. Scot, who considered most confessions to be "idle, false, inconstant and of no weight," came close to denying that witchcraft existed (61).

71. Dalton, Country Justice , 1618 ed., 273, 1 cap. 107. Convictions for witchcraft, however, had fallen off sharply by 1620 except for a brief flurry in the 1640s.

72. E.g., Richard Bolton, A Justice of the Peace in Ireland (Dublin, 1683), 95. break

73. Robert Filmer, An Advertisement to the Grand Jurymen of England Touching Witchcraft , 1680 ed. (London, 1653), preface, 308. Perkins's categorizations of proofs into "less sufficient" and "more sufficient" were, according to Filmer, used erroneously because his less sufficient really "meaneth insufficient." Indeed his "unsufficient sufficient proofs" were weaker and worse than his presumptions, which he confesses are "no proofs at all." Perkins's "less sufficient proofs" included proofs of red hot irons, scratching the suspected, and burning items belonging to the suspected. Perkins's "more sufficient proofs" were confession and the testimony of two witnesses (306, 309, 312).

The language of vehement suspicion and presumption also appear in the literature of colonial American witchcraft. Late seventeenth-century New Englanders appear to have been familiar with and perhaps puzzled by these concepts. In one case there was "just ground of vehement suspicion," but this was not deemed "Legally guilty according to Inditement." When the same party was brought to trial again a few years later (1680), the court decided the evidence was insufficient for indictment but was sufficient for punishment. There was "not full proof" that the individual was a witch, but "The Court vehemently suspects her so to be." The accused was imprisoned. In another case in which an individual was acquitted, the court indicated that the accused was "suspiciously Guilty of Witchcraft, but not legally guilty, according to lawe and evidence wee have received." When the evidence was strong, but insufficient, the accused might be required to pay court costs and might be punished. Carol F. Karlsen, The Devil in the Shape of a Woman: Witchcraft in Colonial New England (New York, 1989), 56, 59, 60.

74. 1 State Trials , 1053, 1054, 1065, 1070, 1071. See also Trial of Udall (1590), 2 State Trials , 1281.

75. 2 State Trials , 18. In the 1606 trial of Henry Garnet the judge referred "to many apparent proofs, and evident presumptions" while the defendant, like Campion a few years earlier, asked that the jury not credit things where there was "no direct proof" nor "to condemn him by circumstances or presumptions." 2 State Trials , 253, 256.

76. Keith Thomas, "The Puritans and Adultery: The Act of 1650 Reconsidered," in Puritans and Revolutionaries , ed. Donald Pennington and Keith Thomas (Oxford, 1978), 279, citing Daniel Taylor, Certain Queries (London, 1651), 9-10, and William Sheppard, England's Balme (London, 1657), 159-160. Adultery had previously been under the jurisdiction of the ecclesiastical courts. The act of 1650 resulted in very few convictions (280).

77. The English also received some instruction on the principles of the civil law from such English works as Robert Wiseman's Law of Laws, or the Excellency of the Civil Law (London, 1657). Wiseman introduced continue

the standard distinction between direct and indirect proofs. He indicated that the civil law did not require "direct and positive proof" but would admit of "strong and forcible presumptions also, that by arguments of conjecture drawn from one thing to another, brings forth the certainty of the things in issue." Wiseman, Law of Laws , 1686 ed., 27, citing Wiesenbach. With appropriate reference to Menochius on presumption, he indicates that presumptions might have the same force as proofs. He explained, however, that no proof, presumptive or direct, was sufficient without the testimony of two witnesses and cited the Romano-canon maxim that the testimony of one witness in serious crimes was the same as that of no witnesses at all (37). See also Waterhouse, Fortescue Illustratus , 260.

For further discussion of the civil law and the civilians in England, see Brian Levack, The Civil Lawyers in England, 1603-1641: A Political Study (Oxford, 1973); Theodore Plucknett, "Roman Law and English Common Law," 24-50; Peter Stein, "Continental Influences in English Thought, 1600-1900," in La Formazione Storica del diretto moderno in Europa , ed. L. S. Olschki (Florence, 1977), 1105-1125; Dafydd Jenkins, "English Law and the Renaissance, Eighty Years On: In Defense of Maitland," Journal of Legal History 2 (1981): 107-142; Gino Gorla and Luigi Moccia, "A 'Revisiting' of the Comparison between 'Continental Law' and 'English Law,'" Journal of Legal History 2 (1981): 143-156; Luigi Moccia, "English Attitudes to the 'Civil Law,'" Journal of Legal History 2 (1981): 157-169; J. H. Baker, "English Law and the Renaissance," Cambridge Law Journal 44 (1985): 46-61. See also articles by Daniel R. Coquillette cited in Chapter 3 and bibliography.

78. Coke, Third Part of the Institutes , chap. 104; Sir Matthew Hale, Historia Placitorium Coronae (London, 1734), 239. The recent effort to interpret Hale's willingness to accept less than normal evidence in cases of witchcraft and rape as the result of his hostility to women fails to take into account that these crimes fell into the traditional category of infrequently witnessed crimes. See Gilbert Geis, "Lord Hale, Witches and Rape," British Journal of Law and Society 5 (1978): 26-44. But see David Lanham, "Hate, Misogyny and Rape," Criminal Law Review 7 (1983): 148-166.

79. The Trial of John Giles (London, 1681), 144, 54.

80. The Trial of Dover , in Howell, 6 State Trials , 13, 559.

81. The True Narrative , Old Bailey Trials, 2.

82. Ibid., 3.

81. The True Narrative , Old Bailey Trials, 2.

82. Ibid., 3.

83. 7 State Trials , 726.

84. An Account of . . . The Tryal of Mr. Edward Fitzharris (London, 1681), 1. break

85. Trial of Carr (London, 1681), 14.

86. Ibid., 22-23.

85. Trial of Carr (London, 1681), 14.

86. Ibid., 22-23.

87. Gilbert Burnet, The Life and Death of Sir Matthew Hale (London, 1682), 192.

88. Giles Dunscombe, Trials Per Pais: or the Law of England Concerning Juries by Nisi Prius (London, 1702), preface. Numerous editions appeared between 1665 and 1793.

89. William Hawkins does not discuss circumstantial evidence but refers to violent presumptions of guilt in the context of bail. Those under violent presumption of guilt, e.g., those taken with the thing stolen or those known as notorious thieves, ought not be bailed for a "fresh felony whereof there is probable evidence against them." William Hawkins, A Treatise of the Pleas of the Crown (London [in The Savoy], 1724), 2:98.

90. Argument from something like circumstantial evidence was common in the writings of natural theologians attempting to prove the existence of God from his effects or works. For the best-known late seventeenth-century example, see John Ray, The Wisdom of God Manifested in the Works of the Creation (London, 1691). This mode of thought, typical of the late seventeenth and early eighteenth centuries, culminates in the work of Bishop Butler. Butler emphasized that the "Weight of circumstantial evidence" was "very often altogether as convincing, as that which is the most express and direct." Joseph Butler, The Analogy of Religion, Natural and Revealed to the Constitution and Course of Nature (London, 1736), 272.

91. The Trial of Josh Hill , 11 State Trials , 172.

92. 13 State Trials , 55.

93. Blackstone appears to equate circumstantial evidence with presumption. William Blackstone, Commentaries on the Laws of England , 4 vols. (London, 1765-1769), 3: 371.

94. The Trial of Mary Blandy , in Howell, 18 State Trials , 1186, 1187. See also "The Trial of John Woodburne," Collection of State Trials (London, 1741), 378.

95. 18 State Trials , 1229, 1292, 1293, 1296, 1297, 1298, 1299, 1300, 1301.

96. Ibid., 1314, 1316.

95. 18 State Trials , 1229, 1292, 1293, 1296, 1297, 1298, 1299, 1300, 1301.

96. Ibid., 1314, 1316.

97. William Wills, An Essay on the Principles of Circumstantial Evidence , 1857 ed. (London, 1838), 44, citing Donellan's case; see also 45-46. See also A Defense and Substance of the Trial of John Donellan (London, 1781).

98. William Paley, The Principles of Moral and Political Philosophy , 9th ed., Boston, 1818 (London, 1795), 354-355. Nine editions had been issued by 1818. break

99. Ibid., 355.

98. William Paley, The Principles of Moral and Political Philosophy , 9th ed., Boston, 1818 (London, 1795), 354-355. Nine editions had been issued by 1818. break

99. Ibid., 355.

100. Quoted in Wills, Circumstantial Evidence , 44, from Edmund Burke, Works , 2: 623. For a discussion of the relative value of direct and indirect (circumstantial) evidence, see 42-50. For a discussion of the eighteenth-century preference for circumstantial evidence and its impact on the development of the novel, see Alexander Welsh, "Burke and Bentham on the Narrative Potential of Circumstantial Evidence," New Literary History 21 (1989-1990): 607-627.

101. Francis Snyder, "Using the Criminal Law," in Policing and Prosecution in Britain, 1750-1850 , ed. Douglas Hay and Francis Snyder (Oxford, 1989), 47. There were also criminal gangs who staged crimes that they intended to be discovered so that gang members could testify against those whom they had ensnared into participating in the staged felony. See Ruth Paley, "Thief-takers in London in the Age of the McDaniel Gang, c. 1745-1754," in Policing and Prosecution , 301-343. See also David Philips, "Good Men to Associate and Bad Men to Conspire: Associations for the Prosecution of Felons in England, 1760-1860," in Policing and Prosecution , 113-170.

102. Jean Domat, Civil Law in Its Natural Order , trans. W. Strahan, 2 vols. (Boston, 1853), 1: 790, 791.

103. Ibid., 1: 817. See also 1: 795. The indicia were facts; conjecture and presumptions were what was reasoned about these facts. See also Foriers, "La conception de la preuve dans l'école le droit natural," 169-192.

102. Jean Domat, Civil Law in Its Natural Order , trans. W. Strahan, 2 vols. (Boston, 1853), 1: 790, 791.

103. Ibid., 1: 817. See also 1: 795. The indicia were facts; conjecture and presumptions were what was reasoned about these facts. See also Foriers, "La conception de la preuve dans l'école le droit natural," 169-192.

104. Domat, Civil Law , 1: 792-793.

105. Ibid., 1: 818.

106. Ibid., 1: 791, 795, 818. Domat did not deviate from the two-witness rule.

104. Domat, Civil Law , 1: 792-793.

105. Ibid., 1: 818.

106. Ibid., 1: 791, 795, 818. Domat did not deviate from the two-witness rule.

104. Domat, Civil Law , 1: 792-793.

105. Ibid., 1: 818.

106. Ibid., 1: 791, 795, 818. Domat did not deviate from the two-witness rule.

107. Robert Joseph Pothier, A Treatise on the Law of Obligations or Contracts , trans. William Evans, 2 vols. (Philadelphia, 1826), 1: 49, 60, 83, 100. Evans also suggests that the English become more receptive to the learning embodied in American cases and legal analysis. Evans was slightly defensive. While expressing deference to the judiciary, which he obviously thought too conservative and too reliant on precedent, he insisted on the "freedom of rational inquiry" to examine the "correct principles of legal reasoning." While "no friend to wanton innovation," he hoped to modify the law in some areas (1: 100-101).

108. Ibid., 2: 473.

109. Ibid., 2: 474, 477.

107. Robert Joseph Pothier, A Treatise on the Law of Obligations or Contracts , trans. William Evans, 2 vols. (Philadelphia, 1826), 1: 49, 60, 83, 100. Evans also suggests that the English become more receptive to the learning embodied in American cases and legal analysis. Evans was slightly defensive. While expressing deference to the judiciary, which he obviously thought too conservative and too reliant on precedent, he insisted on the "freedom of rational inquiry" to examine the "correct principles of legal reasoning." While "no friend to wanton innovation," he hoped to modify the law in some areas (1: 100-101).

108. Ibid., 2: 473.

109. Ibid., 2: 474, 477.

107. Robert Joseph Pothier, A Treatise on the Law of Obligations or Contracts , trans. William Evans, 2 vols. (Philadelphia, 1826), 1: 49, 60, 83, 100. Evans also suggests that the English become more receptive to the learning embodied in American cases and legal analysis. Evans was slightly defensive. While expressing deference to the judiciary, which he obviously thought too conservative and too reliant on precedent, he insisted on the "freedom of rational inquiry" to examine the "correct principles of legal reasoning." While "no friend to wanton innovation," he hoped to modify the law in some areas (1: 100-101).

108. Ibid., 2: 473.

109. Ibid., 2: 474, 477.

110. Geoffrey Gilbert, The Law of Evidence , London, 1756 ed., 160-161. In John Morgan's Essays upon the Law of Evidence , 2 vols. (London, 1789), treatment is identical to Gilbert's. 1: 9-10, 47.

111. Gilbert, Law of Evidence , London, 1795 ed., 304. Only two types continue

of presumption, "violent" and "probable," are listed because "light" and "rash" presumptions are worth nothing. Law of Evidence , 1756 ed., 160-161. The use of the categories in pretrial examination may explain how magistrates came to exercise discretion and drop weak cases. See p. 179.

112. Gilbert, Law of Evidence , ed. Capel Lofft, 4 vols. (London, 1791), 1: xxxvi; 1795 ed., 314-315.

113. Gilbert, Law of Evidence , 1756 ed., 159-161; 1769 ed., 160, 161.

114. Gilbert, Law of Evidence , 1791 ed., 304, 310.

115. Ibid., 1: 37.

116. Ibid., 1: 42, 42n.

117. Ibid., 1: xxxviii.

118. Ibid., 1: 42.

114. Gilbert, Law of Evidence , 1791 ed., 304, 310.

115. Ibid., 1: 37.

116. Ibid., 1: 42, 42n.

117. Ibid., 1: xxxviii.

118. Ibid., 1: 42.

114. Gilbert, Law of Evidence , 1791 ed., 304, 310.

115. Ibid., 1: 37.

116. Ibid., 1: 42, 42n.

117. Ibid., 1: xxxviii.

118. Ibid., 1: 42.

114. Gilbert, Law of Evidence , 1791 ed., 304, 310.

115. Ibid., 1: 37.

116. Ibid., 1: 42, 42n.

117. Ibid., 1: xxxviii.

118. Ibid., 1: 42.

114. Gilbert, Law of Evidence , 1791 ed., 304, 310.

115. Ibid., 1: 37.

116. Ibid., 1: 42, 42n.

117. Ibid., 1: xxxviii.

118. Ibid., 1: 42.

119. Richard Kirwan, Logick, or an Essay on the Elements, Principles and Different Modes of Reasoning (London, 1807), 238. Logick was dedicated to Lord Norbury, Chief Justice of Common Pleas in Ireland.

120. James Gambier, A Guide to the Study of Moral Evidence (Boston, 1834), 105.

121. Thomas Gisborne, An Enquiry into the Duties of Men in the Higher and Middle Classes of Society (London, 1794), 227-229.

122. Daniel McKinnon, The Philosophy of Evidence (London, 1812), vi, vii, 27.

123. Ibid., 55, 56, 57, 63-64. Hearsay was excluded not only for the practical reason that one could not cross-examine, but also because it did not "import a probability of sufficient strength to command" belief or to be "received as a satisfactory proof of the truth" (65). See also James Glassford, An Essay on the Principles of Evidence and Their Application to Subjects of Judicial Inquiry (Edinburgh, 1820), 582-592, 638-680. Glassford's study, intended for the general reader, attempts to incorporate the practice of English and Scottish law.

122. Daniel McKinnon, The Philosophy of Evidence (London, 1812), vi, vii, 27.

123. Ibid., 55, 56, 57, 63-64. Hearsay was excluded not only for the practical reason that one could not cross-examine, but also because it did not "import a probability of sufficient strength to command" belief or to be "received as a satisfactory proof of the truth" (65). See also James Glassford, An Essay on the Principles of Evidence and Their Application to Subjects of Judicial Inquiry (Edinburgh, 1820), 582-592, 638-680. Glassford's study, intended for the general reader, attempts to incorporate the practice of English and Scottish law.

124. Thomas Starkie, A Practial Treatise of the Law of Evidence , 1833 ed., 2 vols. (London, 1824).

125. Ibid., 1: 50-51, 397n.

126. Ibid., 1: 495, 515. Joseph Chitty's Practical Treatise of the Criminal Law , 4 vols. (London, 1816) still refers to circumstantial evidence in connection with secret crimes. Because of the "obscurity" of some kinds of crimes, juries are often compelled to "receive evidence which is merely circumstantial and presumptive" (1: 458). Presumptive evidence must arise from the facts and cannot be deduced from the defendant's conduct. Chitty therefore repudiates use of the knowledge that the defendant has previously committed similar offenses (1: 450, citing Samuel M. Phillipps, Treatise on the Law of Evidence (London, 1814), 70. He refers to the "curious distinctions" of the older writers on this topic.

124. Thomas Starkie, A Practial Treatise of the Law of Evidence , 1833 ed., 2 vols. (London, 1824).

125. Ibid., 1: 50-51, 397n.

126. Ibid., 1: 495, 515. Joseph Chitty's Practical Treatise of the Criminal Law , 4 vols. (London, 1816) still refers to circumstantial evidence in connection with secret crimes. Because of the "obscurity" of some kinds of crimes, juries are often compelled to "receive evidence which is merely circumstantial and presumptive" (1: 458). Presumptive evidence must arise from the facts and cannot be deduced from the defendant's conduct. Chitty therefore repudiates use of the knowledge that the defendant has previously committed similar offenses (1: 450, citing Samuel M. Phillipps, Treatise on the Law of Evidence (London, 1814), 70. He refers to the "curious distinctions" of the older writers on this topic.

124. Thomas Starkie, A Practial Treatise of the Law of Evidence , 1833 ed., 2 vols. (London, 1824).

125. Ibid., 1: 50-51, 397n.

126. Ibid., 1: 495, 515. Joseph Chitty's Practical Treatise of the Criminal Law , 4 vols. (London, 1816) still refers to circumstantial evidence in connection with secret crimes. Because of the "obscurity" of some kinds of crimes, juries are often compelled to "receive evidence which is merely circumstantial and presumptive" (1: 458). Presumptive evidence must arise from the facts and cannot be deduced from the defendant's conduct. Chitty therefore repudiates use of the knowledge that the defendant has previously committed similar offenses (1: 450, citing Samuel M. Phillipps, Treatise on the Law of Evidence (London, 1814), 70. He refers to the "curious distinctions" of the older writers on this topic.

127. Simon Greenleaf, Treatise on the Law of Evidence (Boston, continue

1844). The editor of the 1853 edition of Coke on Littleton also noted many civilian works on evidence, the "most admired" being those of Mascardus, Menochius, Everhardus, and Farinaccius. Sir Edward Coke, The First Part of the Institutes of the Laws of England; or a Commentary upon Littleton , 2 vols. (Philadelphia, 1853), 7a, n. 1.

128. Greenleaf, Law of Evidence , 16-17. Greenleaf indicated that circumstantial evidence is sometimes "not with entire accuracy, called "presumptive." "Complex and difficult" operations of the mind caused the evidence "afforded by the circumstances, to be termed presumptive evidence: though, in truth the operation is similar in both cases."

129. Ibid., 18-38.

130. Ibid., 50.

131. Ibid., 51.

132. Ibid., citing Starkie, Law of Evidence , 2: 684.

133. Ibid., 55.

128. Greenleaf, Law of Evidence , 16-17. Greenleaf indicated that circumstantial evidence is sometimes "not with entire accuracy, called "presumptive." "Complex and difficult" operations of the mind caused the evidence "afforded by the circumstances, to be termed presumptive evidence: though, in truth the operation is similar in both cases."

129. Ibid., 18-38.

130. Ibid., 50.

131. Ibid., 51.

132. Ibid., citing Starkie, Law of Evidence , 2: 684.

133. Ibid., 55.

128. Greenleaf, Law of Evidence , 16-17. Greenleaf indicated that circumstantial evidence is sometimes "not with entire accuracy, called "presumptive." "Complex and difficult" operations of the mind caused the evidence "afforded by the circumstances, to be termed presumptive evidence: though, in truth the operation is similar in both cases."

129. Ibid., 18-38.

130. Ibid., 50.

131. Ibid., 51.

132. Ibid., citing Starkie, Law of Evidence , 2: 684.

133. Ibid., 55.

128. Greenleaf, Law of Evidence , 16-17. Greenleaf indicated that circumstantial evidence is sometimes "not with entire accuracy, called "presumptive." "Complex and difficult" operations of the mind caused the evidence "afforded by the circumstances, to be termed presumptive evidence: though, in truth the operation is similar in both cases."

129. Ibid., 18-38.

130. Ibid., 50.

131. Ibid., 51.

132. Ibid., citing Starkie, Law of Evidence , 2: 684.

133. Ibid., 55.

128. Greenleaf, Law of Evidence , 16-17. Greenleaf indicated that circumstantial evidence is sometimes "not with entire accuracy, called "presumptive." "Complex and difficult" operations of the mind caused the evidence "afforded by the circumstances, to be termed presumptive evidence: though, in truth the operation is similar in both cases."

129. Ibid., 18-38.

130. Ibid., 50.

131. Ibid., 51.

132. Ibid., citing Starkie, Law of Evidence , 2: 684.

133. Ibid., 55.

128. Greenleaf, Law of Evidence , 16-17. Greenleaf indicated that circumstantial evidence is sometimes "not with entire accuracy, called "presumptive." "Complex and difficult" operations of the mind caused the evidence "afforded by the circumstances, to be termed presumptive evidence: though, in truth the operation is similar in both cases."

129. Ibid., 18-38.

130. Ibid., 50.

131. Ibid., 51.

132. Ibid., citing Starkie, Law of Evidence , 2: 684.

133. Ibid., 55.

134. William Wills, An Essay on the Principles of Circumstantial Evidence , 3d ed., 1857 (London, 1838).

135. William Best, A Treatise on Presumptions of Law and Fact with the Theory and Rules of Presumptive or Circumstantial Proof in Criminal Cases (Philadelphia, 1845).

136. Wills, An Essay , 3d ed., 1857, 274-275.

137. Ibid., 135. Truth was thus either "abstract and necessary" or "probable and contingent," and each required different kinds of evidence (16-17).

138. Ibid.

139. Ibid., 236.

140. Ibid., 51.

136. Wills, An Essay , 3d ed., 1857, 274-275.

137. Ibid., 135. Truth was thus either "abstract and necessary" or "probable and contingent," and each required different kinds of evidence (16-17).

138. Ibid.

139. Ibid., 236.

140. Ibid., 51.

136. Wills, An Essay , 3d ed., 1857, 274-275.

137. Ibid., 135. Truth was thus either "abstract and necessary" or "probable and contingent," and each required different kinds of evidence (16-17).

138. Ibid.

139. Ibid., 236.

140. Ibid., 51.

136. Wills, An Essay , 3d ed., 1857, 274-275.

137. Ibid., 135. Truth was thus either "abstract and necessary" or "probable and contingent," and each required different kinds of evidence (16-17).

138. Ibid.

139. Ibid., 236.

140. Ibid., 51.

136. Wills, An Essay , 3d ed., 1857, 274-275.

137. Ibid., 135. Truth was thus either "abstract and necessary" or "probable and contingent," and each required different kinds of evidence (16-17).

138. Ibid.

139. Ibid., 236.

140. Ibid., 51.

141. Wills felt that facts of a circumstantial nature could only be classified into two extremely general classes, those which he calls "moral indications," relating to the relations, language, and conduct of the accused, and those which "are apparently extrinsic" and "independent of the moral conduct and demeanor." Each of these might be subdivided into either inculpatory or exculpatory (ibid., 52).

142. Ibid., 156, 157. He cites Stewart and Mill's Logic among others.

143. Ibid., 33.

144. Ibid., 32-43. He cites Menochius, Alciatus, Mascardus, Starkie, Burke, Domat, Bonnier, and Bentham among others. Wills emphasized that circumstances and facts of all kinds must be proved by human testimony. The relative values of circumstantial and direct testimonial evidence were still a matter of considerable dispute, both in and outside the courtroom in the early decades of the nineteenth century. Burke had argued that "when circumstantial proof is in its greatest perfection, that continue

is when it is most abundant in circumstances, it is much superior to positive proof." P. 42, citing Edmund Burke, Works , 1834 ed., 2: 624.

145. Ibid., 36.

146. Ibid., 39-40. He also criticized the civilian approach to confessions which resulted from "arbitrary and unphilosophical rules of evidence, which necessarily have the effect of closing many of the channels of truth."

147. Ibid., 41.

148. Ibid., 157, 166, 167. He cites Starkie and Greenleaf in connection with the second rule.

149. Ibid., 171a. This was "the fundamental rule, the experimentum crucis by which the relevancy and effect of circumstantial evidence must be estimated."

150. Ibid. He cited an 1805 case in which Lord Chancellor Baron McDonald said that "the nature of circumstantial evidence was this, that the jury must be satisfied that there is not a rational mode of accounting for the circumstances, but upon the supposition that the prisoner is guilty." Citing Rex v. Patch , Surrey Spring Assizes, 1805. He also cites Laplace's Théorie analytique des probabilités .

151. Ibid., 175. He cites M. E. Bonnier's Traité théorique et practique des preuves in connection with this rule. In discussing the doubt in reasonable doubt, Wills indicated that it must not be a trivial one, e.g., one "as speculative ingenuity may raise, but a conscientious one which may operate on the mind of a rational man acquainted with the affairs of life." (P. 177, citing per Mr. Baron Parke in Reg. v. Tawell without full citation.)

141. Wills felt that facts of a circumstantial nature could only be classified into two extremely general classes, those which he calls "moral indications," relating to the relations, language, and conduct of the accused, and those which "are apparently extrinsic" and "independent of the moral conduct and demeanor." Each of these might be subdivided into either inculpatory or exculpatory (ibid., 52).

142. Ibid., 156, 157. He cites Stewart and Mill's Logic among others.

143. Ibid., 33.

144. Ibid., 32-43. He cites Menochius, Alciatus, Mascardus, Starkie, Burke, Domat, Bonnier, and Bentham among others. Wills emphasized that circumstances and facts of all kinds must be proved by human testimony. The relative values of circumstantial and direct testimonial evidence were still a matter of considerable dispute, both in and outside the courtroom in the early decades of the nineteenth century. Burke had argued that "when circumstantial proof is in its greatest perfection, that continue

is when it is most abundant in circumstances, it is much superior to positive proof." P. 42, citing Edmund Burke, Works , 1834 ed., 2: 624.

145. Ibid., 36.

146. Ibid., 39-40. He also criticized the civilian approach to confessions which resulted from "arbitrary and unphilosophical rules of evidence, which necessarily have the effect of closing many of the channels of truth."

147. Ibid., 41.

148. Ibid., 157, 166, 167. He cites Starkie and Greenleaf in connection with the second rule.

149. Ibid., 171a. This was "the fundamental rule, the experimentum crucis by which the relevancy and effect of circumstantial evidence must be estimated."

150. Ibid. He cited an 1805 case in which Lord Chancellor Baron McDonald said that "the nature of circumstantial evidence was this, that the jury must be satisfied that there is not a rational mode of accounting for the circumstances, but upon the supposition that the prisoner is guilty." Citing Rex v. Patch , Surrey Spring Assizes, 1805. He also cites Laplace's Théorie analytique des probabilités .

151. Ibid., 175. He cites M. E. Bonnier's Traité théorique et practique des preuves in connection with this rule. In discussing the doubt in reasonable doubt, Wills indicated that it must not be a trivial one, e.g., one "as speculative ingenuity may raise, but a conscientious one which may operate on the mind of a rational man acquainted with the affairs of life." (P. 177, citing per Mr. Baron Parke in Reg. v. Tawell without full citation.)

141. Wills felt that facts of a circumstantial nature could only be classified into two extremely general classes, those which he calls "moral indications," relating to the relations, language, and conduct of the accused, and those which "are apparently extrinsic" and "independent of the moral conduct and demeanor." Each of these might be subdivided into either inculpatory or exculpatory (ibid., 52).

142. Ibid., 156, 157. He cites Stewart and Mill's Logic among others.

143. Ibid., 33.

144. Ibid., 32-43. He cites Menochius, Alciatus, Mascardus, Starkie, Burke, Domat, Bonnier, and Bentham among others. Wills emphasized that circumstances and facts of all kinds must be proved by human testimony. The relative values of circumstantial and direct testimonial evidence were still a matter of considerable dispute, both in and outside the courtroom in the early decades of the nineteenth century. Burke had argued that "when circumstantial proof is in its greatest perfection, that continue

is when it is most abundant in circumstances, it is much superior to positive proof." P. 42, citing Edmund Burke, Works , 1834 ed., 2: 624.

145. Ibid., 36.

146. Ibid., 39-40. He also criticized the civilian approach to confessions which resulted from "arbitrary and unphilosophical rules of evidence, which necessarily have the effect of closing many of the channels of truth."

147. Ibid., 41.

148. Ibid., 157, 166, 167. He cites Starkie and Greenleaf in connection with the second rule.

149. Ibid., 171a. This was "the fundamental rule, the experimentum crucis by which the relevancy and effect of circumstantial evidence must be estimated."

150. Ibid. He cited an 1805 case in which Lord Chancellor Baron McDonald said that "the nature of circumstantial evidence was this, that the jury must be satisfied that there is not a rational mode of accounting for the circumstances, but upon the supposition that the prisoner is guilty." Citing Rex v. Patch , Surrey Spring Assizes, 1805. He also cites Laplace's Théorie analytique des probabilités .

151. Ibid., 175. He cites M. E. Bonnier's Traité théorique et practique des preuves in connection with this rule. In discussing the doubt in reasonable doubt, Wills indicated that it must not be a trivial one, e.g., one "as speculative ingenuity may raise, but a conscientious one which may operate on the mind of a rational man acquainted with the affairs of life." (P. 177, citing per Mr. Baron Parke in Reg. v. Tawell without full citation.)

141. Wills felt that facts of a circumstantial nature could only be classified into two extremely general classes, those which he calls "moral indications," relating to the relations, language, and conduct of the accused, and those which "are apparently extrinsic" and "independent of the moral conduct and demeanor." Each of these might be subdivided into either inculpatory or exculpatory (ibid., 52).

142. Ibid., 156, 157. He cites Stewart and Mill's Logic among others.

143. Ibid., 33.

144. Ibid., 32-43. He cites Menochius, Alciatus, Mascardus, Starkie, Burke, Domat, Bonnier, and Bentham among others. Wills emphasized that circumstances and facts of all kinds must be proved by human testimony. The relative values of circumstantial and direct testimonial evidence were still a matter of considerable dispute, both in and outside the courtroom in the early decades of the nineteenth century. Burke had argued that "when circumstantial proof is in its greatest perfection, that continue

is when it is most abundant in circumstances, it is much superior to positive proof." P. 42, citing Edmund Burke, Works , 1834 ed., 2: 624.

145. Ibid., 36.

146. Ibid., 39-40. He also criticized the civilian approach to confessions which resulted from "arbitrary and unphilosophical rules of evidence, which necessarily have the effect of closing many of the channels of truth."

147. Ibid., 41.

148. Ibid., 157, 166, 167. He cites Starkie and Greenleaf in connection with the second rule.

149. Ibid., 171a. This was "the fundamental rule, the experimentum crucis by which the relevancy and effect of circumstantial evidence must be estimated."

150. Ibid. He cited an 1805 case in which Lord Chancellor Baron McDonald said that "the nature of circumstantial evidence was this, that the jury must be satisfied that there is not a rational mode of accounting for the circumstances, but upon the supposition that the prisoner is guilty." Citing Rex v. Patch , Surrey Spring Assizes, 1805. He also cites Laplace's Théorie analytique des probabilités .

151. Ibid., 175. He cites M. E. Bonnier's Traité théorique et practique des preuves in connection with this rule. In discussing the doubt in reasonable doubt, Wills indicated that it must not be a trivial one, e.g., one "as speculative ingenuity may raise, but a conscientious one which may operate on the mind of a rational man acquainted with the affairs of life." (P. 177, citing per Mr. Baron Parke in Reg. v. Tawell without full citation.)

141. Wills felt that facts of a circumstantial nature could only be classified into two extremely general classes, those which he calls "moral indications," relating to the relations, language, and conduct of the accused, and those which "are apparently extrinsic" and "independent of the moral conduct and demeanor." Each of these might be subdivided into either inculpatory or exculpatory (ibid., 52).

142. Ibid., 156, 157. He cites Stewart and Mill's Logic among others.

143. Ibid., 33.

144. Ibid., 32-43. He cites Menochius, Alciatus, Mascardus, Starkie, Burke, Domat, Bonnier, and Bentham among others. Wills emphasized that circumstances and facts of all kinds must be proved by human testimony. The relative values of circumstantial and direct testimonial evidence were still a matter of considerable dispute, both in and outside the courtroom in the early decades of the nineteenth century. Burke had argued that "when circumstantial proof is in its greatest perfection, that continue

is when it is most abundant in circumstances, it is much superior to positive proof." P. 42, citing Edmund Burke, Works , 1834 ed., 2: 624.

145. Ibid., 36.

146. Ibid., 39-40. He also criticized the civilian approach to confessions which resulted from "arbitrary and unphilosophical rules of evidence, which necessarily have the effect of closing many of the channels of truth."

147. Ibid., 41.

148. Ibid., 157, 166, 167. He cites Starkie and Greenleaf in connection with the second rule.

149. Ibid., 171a. This was "the fundamental rule, the experimentum crucis by which the relevancy and effect of circumstantial evidence must be estimated."

150. Ibid. He cited an 1805 case in which Lord Chancellor Baron McDonald said that "the nature of circumstantial evidence was this, that the jury must be satisfied that there is not a rational mode of accounting for the circumstances, but upon the supposition that the prisoner is guilty." Citing Rex v. Patch , Surrey Spring Assizes, 1805. He also cites Laplace's Théorie analytique des probabilités .

151. Ibid., 175. He cites M. E. Bonnier's Traité théorique et practique des preuves in connection with this rule. In discussing the doubt in reasonable doubt, Wills indicated that it must not be a trivial one, e.g., one "as speculative ingenuity may raise, but a conscientious one which may operate on the mind of a rational man acquainted with the affairs of life." (P. 177, citing per Mr. Baron Parke in Reg. v. Tawell without full citation.)

141. Wills felt that facts of a circumstantial nature could only be classified into two extremely general classes, those which he calls "moral indications," relating to the relations, language, and conduct of the accused, and those which "are apparently extrinsic" and "independent of the moral conduct and demeanor." Each of these might be subdivided into either inculpatory or exculpatory (ibid., 52).

142. Ibid., 156, 157. He cites Stewart and Mill's Logic among others.

143. Ibid., 33.

144. Ibid., 32-43. He cites Menochius, Alciatus, Mascardus, Starkie, Burke, Domat, Bonnier, and Bentham among others. Wills emphasized that circumstances and facts of all kinds must be proved by human testimony. The relative values of circumstantial and direct testimonial evidence were still a matter of considerable dispute, both in and outside the courtroom in the early decades of the nineteenth century. Burke had argued that "when circumstantial proof is in its greatest perfection, that continue

is when it is most abundant in circumstances, it is much superior to positive proof." P. 42, citing Edmund Burke, Works , 1834 ed., 2: 624.

145. Ibid., 36.

146. Ibid., 39-40. He also criticized the civilian approach to confessions which resulted from "arbitrary and unphilosophical rules of evidence, which necessarily have the effect of closing many of the channels of truth."

147. Ibid., 41.

148. Ibid., 157, 166, 167. He cites Starkie and Greenleaf in connection with the second rule.

149. Ibid., 171a. This was "the fundamental rule, the experimentum crucis by which the relevancy and effect of circumstantial evidence must be estimated."

150. Ibid. He cited an 1805 case in which Lord Chancellor Baron McDonald said that "the nature of circumstantial evidence was this, that the jury must be satisfied that there is not a rational mode of accounting for the circumstances, but upon the supposition that the prisoner is guilty." Citing Rex v. Patch , Surrey Spring Assizes, 1805. He also cites Laplace's Théorie analytique des probabilités .

151. Ibid., 175. He cites M. E. Bonnier's Traité théorique et practique des preuves in connection with this rule. In discussing the doubt in reasonable doubt, Wills indicated that it must not be a trivial one, e.g., one "as speculative ingenuity may raise, but a conscientious one which may operate on the mind of a rational man acquainted with the affairs of life." (P. 177, citing per Mr. Baron Parke in Reg. v. Tawell without full citation.)

141. Wills felt that facts of a circumstantial nature could only be classified into two extremely general classes, those which he calls "moral indications," relating to the relations, language, and conduct of the accused, and those which "are apparently extrinsic" and "independent of the moral conduct and demeanor." Each of these might be subdivided into either inculpatory or exculpatory (ibid., 52).

142. Ibid., 156, 157. He cites Stewart and Mill's Logic among others.

143. Ibid., 33.

144. Ibid., 32-43. He cites Menochius, Alciatus, Mascardus, Starkie, Burke, Domat, Bonnier, and Bentham among others. Wills emphasized that circumstances and facts of all kinds must be proved by human testimony. The relative values of circumstantial and direct testimonial evidence were still a matter of considerable dispute, both in and outside the courtroom in the early decades of the nineteenth century. Burke had argued that "when circumstantial proof is in its greatest perfection, that continue

is when it is most abundant in circumstances, it is much superior to positive proof." P. 42, citing Edmund Burke, Works , 1834 ed., 2: 624.

145. Ibid., 36.

146. Ibid., 39-40. He also criticized the civilian approach to confessions which resulted from "arbitrary and unphilosophical rules of evidence, which necessarily have the effect of closing many of the channels of truth."

147. Ibid., 41.

148. Ibid., 157, 166, 167. He cites Starkie and Greenleaf in connection with the second rule.

149. Ibid., 171a. This was "the fundamental rule, the experimentum crucis by which the relevancy and effect of circumstantial evidence must be estimated."

150. Ibid. He cited an 1805 case in which Lord Chancellor Baron McDonald said that "the nature of circumstantial evidence was this, that the jury must be satisfied that there is not a rational mode of accounting for the circumstances, but upon the supposition that the prisoner is guilty." Citing Rex v. Patch , Surrey Spring Assizes, 1805. He also cites Laplace's Théorie analytique des probabilités .

151. Ibid., 175. He cites M. E. Bonnier's Traité théorique et practique des preuves in connection with this rule. In discussing the doubt in reasonable doubt, Wills indicated that it must not be a trivial one, e.g., one "as speculative ingenuity may raise, but a conscientious one which may operate on the mind of a rational man acquainted with the affairs of life." (P. 177, citing per Mr. Baron Parke in Reg. v. Tawell without full citation.)

141. Wills felt that facts of a circumstantial nature could only be classified into two extremely general classes, those which he calls "moral indications," relating to the relations, language, and conduct of the accused, and those which "are apparently extrinsic" and "independent of the moral conduct and demeanor." Each of these might be subdivided into either inculpatory or exculpatory (ibid., 52).

142. Ibid., 156, 157. He cites Stewart and Mill's Logic among others.

143. Ibid., 33.

144. Ibid., 32-43. He cites Menochius, Alciatus, Mascardus, Starkie, Burke, Domat, Bonnier, and Bentham among others. Wills emphasized that circumstances and facts of all kinds must be proved by human testimony. The relative values of circumstantial and direct testimonial evidence were still a matter of considerable dispute, both in and outside the courtroom in the early decades of the nineteenth century. Burke had argued that "when circumstantial proof is in its greatest perfection, that continue

is when it is most abundant in circumstances, it is much superior to positive proof." P. 42, citing Edmund Burke, Works , 1834 ed., 2: 624.

145. Ibid., 36.

146. Ibid., 39-40. He also criticized the civilian approach to confessions which resulted from "arbitrary and unphilosophical rules of evidence, which necessarily have the effect of closing many of the channels of truth."

147. Ibid., 41.

148. Ibid., 157, 166, 167. He cites Starkie and Greenleaf in connection with the second rule.

149. Ibid., 171a. This was "the fundamental rule, the experimentum crucis by which the relevancy and effect of circumstantial evidence must be estimated."

150. Ibid. He cited an 1805 case in which Lord Chancellor Baron McDonald said that "the nature of circumstantial evidence was this, that the jury must be satisfied that there is not a rational mode of accounting for the circumstances, but upon the supposition that the prisoner is guilty." Citing Rex v. Patch , Surrey Spring Assizes, 1805. He also cites Laplace's Théorie analytique des probabilités .

151. Ibid., 175. He cites M. E. Bonnier's Traité théorique et practique des preuves in connection with this rule. In discussing the doubt in reasonable doubt, Wills indicated that it must not be a trivial one, e.g., one "as speculative ingenuity may raise, but a conscientious one which may operate on the mind of a rational man acquainted with the affairs of life." (P. 177, citing per Mr. Baron Parke in Reg. v. Tawell without full citation.)

141. Wills felt that facts of a circumstantial nature could only be classified into two extremely general classes, those which he calls "moral indications," relating to the relations, language, and conduct of the accused, and those which "are apparently extrinsic" and "independent of the moral conduct and demeanor." Each of these might be subdivided into either inculpatory or exculpatory (ibid., 52).

142. Ibid., 156, 157. He cites Stewart and Mill's Logic among others.

143. Ibid., 33.

144. Ibid., 32-43. He cites Menochius, Alciatus, Mascardus, Starkie, Burke, Domat, Bonnier, and Bentham among others. Wills emphasized that circumstances and facts of all kinds must be proved by human testimony. The relative values of circumstantial and direct testimonial evidence were still a matter of considerable dispute, both in and outside the courtroom in the early decades of the nineteenth century. Burke had argued that "when circumstantial proof is in its greatest perfection, that continue

is when it is most abundant in circumstances, it is much superior to positive proof." P. 42, citing Edmund Burke, Works , 1834 ed., 2: 624.

145. Ibid., 36.

146. Ibid., 39-40. He also criticized the civilian approach to confessions which resulted from "arbitrary and unphilosophical rules of evidence, which necessarily have the effect of closing many of the channels of truth."

147. Ibid., 41.

148. Ibid., 157, 166, 167. He cites Starkie and Greenleaf in connection with the second rule.

149. Ibid., 171a. This was "the fundamental rule, the experimentum crucis by which the relevancy and effect of circumstantial evidence must be estimated."

150. Ibid. He cited an 1805 case in which Lord Chancellor Baron McDonald said that "the nature of circumstantial evidence was this, that the jury must be satisfied that there is not a rational mode of accounting for the circumstances, but upon the supposition that the prisoner is guilty." Citing Rex v. Patch , Surrey Spring Assizes, 1805. He also cites Laplace's Théorie analytique des probabilités .

151. Ibid., 175. He cites M. E. Bonnier's Traité théorique et practique des preuves in connection with this rule. In discussing the doubt in reasonable doubt, Wills indicated that it must not be a trivial one, e.g., one "as speculative ingenuity may raise, but a conscientious one which may operate on the mind of a rational man acquainted with the affairs of life." (P. 177, citing per Mr. Baron Parke in Reg. v. Tawell without full citation.)

141. Wills felt that facts of a circumstantial nature could only be classified into two extremely general classes, those which he calls "moral indications," relating to the relations, language, and conduct of the accused, and those which "are apparently extrinsic" and "independent of the moral conduct and demeanor." Each of these might be subdivided into either inculpatory or exculpatory (ibid., 52).

142. Ibid., 156, 157. He cites Stewart and Mill's Logic among others.

143. Ibid., 33.

144. Ibid., 32-43. He cites Menochius, Alciatus, Mascardus, Starkie, Burke, Domat, Bonnier, and Bentham among others. Wills emphasized that circumstances and facts of all kinds must be proved by human testimony. The relative values of circumstantial and direct testimonial evidence were still a matter of considerable dispute, both in and outside the courtroom in the early decades of the nineteenth century. Burke had argued that "when circumstantial proof is in its greatest perfection, that continue

is when it is most abundant in circumstances, it is much superior to positive proof." P. 42, citing Edmund Burke, Works , 1834 ed., 2: 624.

145. Ibid., 36.

146. Ibid., 39-40. He also criticized the civilian approach to confessions which resulted from "arbitrary and unphilosophical rules of evidence, which necessarily have the effect of closing many of the channels of truth."

147. Ibid., 41.

148. Ibid., 157, 166, 167. He cites Starkie and Greenleaf in connection with the second rule.

149. Ibid., 171a. This was "the fundamental rule, the experimentum crucis by which the relevancy and effect of circumstantial evidence must be estimated."

150. Ibid. He cited an 1805 case in which Lord Chancellor Baron McDonald said that "the nature of circumstantial evidence was this, that the jury must be satisfied that there is not a rational mode of accounting for the circumstances, but upon the supposition that the prisoner is guilty." Citing Rex v. Patch , Surrey Spring Assizes, 1805. He also cites Laplace's Théorie analytique des probabilités .

151. Ibid., 175. He cites M. E. Bonnier's Traité théorique et practique des preuves in connection with this rule. In discussing the doubt in reasonable doubt, Wills indicated that it must not be a trivial one, e.g., one "as speculative ingenuity may raise, but a conscientious one which may operate on the mind of a rational man acquainted with the affairs of life." (P. 177, citing per Mr. Baron Parke in Reg. v. Tawell without full citation.)

141. Wills felt that facts of a circumstantial nature could only be classified into two extremely general classes, those which he calls "moral indications," relating to the relations, language, and conduct of the accused, and those which "are apparently extrinsic" and "independent of the moral conduct and demeanor." Each of these might be subdivided into either inculpatory or exculpatory (ibid., 52).

142. Ibid., 156, 157. He cites Stewart and Mill's Logic among others.

143. Ibid., 33.

144. Ibid., 32-43. He cites Menochius, Alciatus, Mascardus, Starkie, Burke, Domat, Bonnier, and Bentham among others. Wills emphasized that circumstances and facts of all kinds must be proved by human testimony. The relative values of circumstantial and direct testimonial evidence were still a matter of considerable dispute, both in and outside the courtroom in the early decades of the nineteenth century. Burke had argued that "when circumstantial proof is in its greatest perfection, that continue

is when it is most abundant in circumstances, it is much superior to positive proof." P. 42, citing Edmund Burke, Works , 1834 ed., 2: 624.

145. Ibid., 36.

146. Ibid., 39-40. He also criticized the civilian approach to confessions which resulted from "arbitrary and unphilosophical rules of evidence, which necessarily have the effect of closing many of the channels of truth."

147. Ibid., 41.

148. Ibid., 157, 166, 167. He cites Starkie and Greenleaf in connection with the second rule.

149. Ibid., 171a. This was "the fundamental rule, the experimentum crucis by which the relevancy and effect of circumstantial evidence must be estimated."

150. Ibid. He cited an 1805 case in which Lord Chancellor Baron McDonald said that "the nature of circumstantial evidence was this, that the jury must be satisfied that there is not a rational mode of accounting for the circumstances, but upon the supposition that the prisoner is guilty." Citing Rex v. Patch , Surrey Spring Assizes, 1805. He also cites Laplace's Théorie analytique des probabilités .

151. Ibid., 175. He cites M. E. Bonnier's Traité théorique et practique des preuves in connection with this rule. In discussing the doubt in reasonable doubt, Wills indicated that it must not be a trivial one, e.g., one "as speculative ingenuity may raise, but a conscientious one which may operate on the mind of a rational man acquainted with the affairs of life." (P. 177, citing per Mr. Baron Parke in Reg. v. Tawell without full citation.)

152. Best, Principles of the Law of Evidence , 6th ed.

153. Ibid., 49-50, 82, 85. The arithmetically calculated subdivisions of half proofs had made matters worse. The Napoleonic Code (1808) was a great improvement because it had abolished the system of legal proofs and instituted "free proof" or "intime conviction" (87). Best was nevertheless critical of "conviction intime" because he thought it implied that French juries were not limited to what was produced in court.

152. Best, Principles of the Law of Evidence , 6th ed.

153. Ibid., 49-50, 82, 85. The arithmetically calculated subdivisions of half proofs had made matters worse. The Napoleonic Code (1808) was a great improvement because it had abolished the system of legal proofs and instituted "free proof" or "intime conviction" (87). Best was nevertheless critical of "conviction intime" because he thought it implied that French juries were not limited to what was produced in court.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

154. William Best, Treatise on Presumptions of Law and Fact , (Philadelphia, 1845).

155. Ibid., preface.

156. Ibid., 1-2, 26. He cites Locke's Essay Concerning Human Understanding , bk. 4, chap. 14, secs. 3-4.

157. Ibid., 26. He includes a lengthy discussion and citations from Alciatus, Menochius, Matthaeus, Huberus, Vinnius, Struvius, Westenbergius, and Pothier, as well as from Locke, Starkie, and Phillipps on the nature of probable inference (26-27). break

158. Ibid., 28. He cites Matthaeus, Mascardus, Huberus, Struvius (28n).

159. Ibid., 29, citing Matthaeus and Quintilian.

160. Ibid., 31.

161. Ibid., 31n.

162. Ibid., 31-32, 35. For the distinction between legal fictions and presumptions, see 33, 36-38.

163. Ibid., 43, 43n.

164. Ibid., 45, 45n, citing Starkie and several civilians.

165. Ibid., 46.

166. Ibid. To do so would result in a new trial.

167. Ibid., 149, 150.

168. Ibid., 151.

169. Ibid., 152. Best cites Domat, Matthaeus, and Pothier, as well as Roscoe's Circumstantial Evidence and Paley's Moral Philosophy .

170. Ibid., 152-153.

171. Ibid.

172. Best also draws on Bentham as well as civilian and philosophical sources. See ibid., 174ff., 201. Alexander Burrill's Circumstantial Evidence (New York, 1856) also combines discussion of the nature of knowledge with Anglo-American legal materials and the evidentiary tradition of the civilians. Bentham, Burrill argued, had been among the first "to perceive its importance and comprehend the range of circumstantial evidence and its application." He also emphasized the importance of Starkie, Phillipps, Wills, and Best. Circumstantial Evidence , iii, iv, v. Burrill hoped to reach both a professional and a general audience, the latter especially because of the role of jurors, who could not properly discharge their duties without adequate instruction.

As I noted in Chapter 1, James Thayer, in A Preliminary Treatise on Evidence at the Common Law (Boston, 1898), differed from most of his predecessors in that he was less sympathetic to grounding the law of evidence in epistemology and logic, and he sharply differentiated the evidentiary tradition of law from that of the natural sciences. He differed from his predecessors as well in his willingness to employ civilian concepts. Indeed, he viewed the development of the doctrine of presumptions in England primarily as a nineteenth-century one. Preliminary Treatise , 343n. Presumptions, for Thayer, operated in advance of argument or evidence "or irrespective of it, taking something for granted; but assuming its existence." Presumptions were neither argument nor evidence but were a means of shortening argument and inquiry. Much of the law was expressed presumptively in the form of prima facie rules (314, 315). Thayer thus again marks something of a break with the systematizing continue

philosophical orientation of early nineteenth-century writers and signals a return to a more insular Anglophile point of view.