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The countrtmaH.
is
ter evidence that the solicitor-general has j
misapprehended, or misapplied the doc
trine of that court, than the ill"stration ;
which he used in impressing upon you
h's construction of the decision of the
court. His illustration was drawn frojn
the proposition that men, with the same
facts before them, differ in questions of
politics, morals, and religion. Because
they diff r in the conclusions they come
to, in reference to these questions, with
the same evidence before them, there ore
you may find the accused guilty—such is
the argument in effect—therefore you may
find the accused guilty, without being
morally certain that he committed the
crimes Because men come to some sort
of a conclusion, upon mere speculative is
sue*', without its being morally certain
that they are right, therefore you may.
upon vague testimony, convict Joseph
Ashfield!
Such reasoning will not stand the test.
It will never do td convict a man of crime,
With an eye to justice, and under your
oaih, with the same facility you will agree
to a proposition in morals, politics, or re
ligion. In these things, men’s prejudices,
their associations, their education, have
something to do with the formation of
opinion—much more, in fact, than the
actual evidence brought befoie them, to
Sustain any proposition, in regard to a
speculat ve issue. I think then, gentle
men, you will agree with me, that ah hough
you need not have mathematical demon
stration of the guilt of the accused, before
you render a verdict against him, yet
something more is necessary than the kind
of evidence upon which you base your
religion, or your politics. In these t«o
things, the field of enquiry is broad, and
indefinite. The space, here, through which
you have to wander, in search of a con
clusion, is high as heaven, deep as hell.
You may compass sea and land, in search
Of evidence. You may appeal to the past,
through the page of history; you mav
cast your eye over the world, and take it
all in, at one view, in the formation of
your opinions, upon religion, and politics;
and, guided by the light of the pas', you
may cast your prophetic eye far into the
future, and bring from its bidden stores,
evidence upon which to base your religion,
or your politics. You may read from the
bible, and turning from the page of inspi
ration, to the volume of nature, you may
there seaich for other testimony, upon
Which to base your conclusions. You
may read the traditions of the elders, the
opinions of the fathers, in matters of
church, and state, in order to make up
your religious, or political opinions. You
may draw inspiration from the brow oi
Sinai, or drink knowledge from the waters
in which flows the blood of the martyrs of
civil, and religious liberty. All these fields
you may traverse, for testimony upon
which to base a conclusion in theology, or
the science of government. And when
you have done all this, there yet lie be
yond these, other and unexplored trea
sures of evidence, sources of knowledge,
that all have a bearing upon the lormation
o( correct opinions in politics, and religion.
And the best that any of us can say, in
reference to anv conclusion we mav come
to, touching t! ese matters, is, that accord
ing: to the lights before us, we think that I
our opinions are right. We never can be
certain that they are, this side of ihe land
where God-head throw s light upon these,
aniJ all other questions.
So you see, gentlemen of thejurv, that
the solicitor-general is wrong, when tie
intimates that no surer convictions, upon
your minds, are necessary to your finding
a verdict against the prisoner, than the
convictions upon which you base your re
ligious, or pol tical actions, In these mat
ters, you may think, and can only think,
that your opinion is right, but before you
convict Joseph Ashfield, you must not
only think him guilty, but must be certain
that he is so. And in judicial investiga-
tions-of this kind, it is not only neoes a y,
but possible, for you to arrive at greater
certainty than in your conclusions' touch
ing politics, or religion, or any other spec
ulative issue. The reason is, that the
testimony, especially in this case, is nar
rowed down to the evidence of Some half
d07, n witnesses, and your trtii ds can g>asp
this testimony; wnile in speculative is
sues, you have the broad expanse of the
universe, the heights of air, and the
depths of the earth as the great store
house of testimony, upon which to base
your opinion. And this your minds can
not digest, cannot grasp, nor not even the
mind of an arch-angel. So you will see,
gentlemen, that you must ieel more cer
tain that Joseph Ashfield is guilty, than
that you are right in your political, or ie
1 gious opinions, before you can convict
him.
And besides, gentlemen,-TemSmbter that
there is another reason why this must be
so. In making up your political, or reli
gious opinions, you are liable, in common
with your erring fellow-men, to be gov
erned by bias, or prejudice. Isn’t this so,«
gentlemen of the jury ? Are not many of
us Methodists, or Baptists, simply because
our friends are so? Are not many of us
Whigs, or Democrats, merely because our
fathers are, or were, so ? So y ou see, tnat
in these matters, men are governed by
their bias, or prejudice. But in the issue
between the State, and Joseph shfield,
you have said, upon your soietnn oaths,
that you have no bias, or prejudice,- for or
against the prisoner at the bar. Aud
hence, you are governed, entirely, by the
testimony, and will require more of it, and
tea gieater degree, tnan to make you
MethoUisrs, or Baptists, Whigs, or Demo
crats. I Lave no tears, gentlemen, but
that you will consider the &o)icitor-gener-
al wrong, as to the amount, and degree ol
testimony necessary to convict ttie prison
er. I am nut surprised at the position as
sumed by the prosecution, witn reference
to the law of eviuenr.e, in this matter.
Fer, as 1 have said beiore, they have but
little testimony, and that ttiey wish to
make go a long way. And their first ob
ject, therefore, is to persuade you that
very little testimony is necessary to con
demn the accused.
May it piease the Court, the law upon
this point, as upon all the other points m-
vo’v^d in this case, I consider plain, and
simple. It is, T believe, correctly, as well
as authoritatively, laid down by our Su
preme Court, in the case already cited,
it is true, that the court says, in reference
to such ca-es, as that now under consider
ation, that “abs flute mathematical, or
meianhvsical certainty, is not essential
Besides, it is not “attainable:” “Moral
certainty is all that can be required.”
What th» Supreme Court means by tuis,
as applied to this case, is, that this jury,
in order to convict Joseph Ashfield, need
not be as certain that he is guilty, as that
two and two make four, or that any other
such mathematical proposition is true.
That two and two do make four, is math
ematically certain. There cannot possi
bly, under any circumstances, be any
mistake about it. The Supreme Couit
says that such certainty as this, is not re
quired to con vice Joseph Ashfield. Why ?
Because such certainty is “ wholly unat
tainable.-’’ Even if a witness were t > say,
upon this stand, under oath, that he saw
the accused ply the torch, still it would
not be us certain that accused did it, as
that two and two make four. For th g
one witness might swear to what was
false. This we know that men do, some
times. But mathemat cs never swears to
a falsehood, under any circumstances.
For it has no interest so to do, for its
own sake, and it is utterly callous to the
influence of gold, offered ty the suborner
of perjury. And so, may iE please the
Court, d two, or a doz-n, or a hundred
witnesses, were to swear, upon this stand,
that they saw Joseph Ashfield put the
torch to Dr. Adams’s house,- though the'
• ntorbl certainty, attainable by tins array
of testimony, would be increased as each
successive witness gave in his evidence,
still mathematical certainty could never
be attained, by this means. Jb’p:, a; the
Supreme Court declares, it is not att Sua
ble, in judicial investigation . Judicial
investigations are based only upon moral
evidence, and not upon mathematical de
monstration. There rs no absolute, and
unq alified certainty, except in mathemat
ical demonstrations. But there is what we
call certainty,- based upon mora l evidence,
which is attainab e, in judicial investiga
tions, and elsewhere.' Metaphysicians,
and logicians, take a distinction, which is
founded in reason, between mathematical
demonstration, and rhorai evidence. And
it is in allusion to this distinoti m, that
the Supreme Court very correctly says,
hat in such cases as the one we are b)-
i jg, though the testimony must “ gener*
ate full belief of the fact, to the exclu
sion of all reasonable doubt, still abso
lute mathematical, or metaphysical eet-
uiinty, is not essential.” V\ hat proves
clearly that the Supreme Court had in its
mind the distinction made by logicians,
between mathematical demonstration, and
moral evidence, is the fact that it says
the former, “ in judicial investigations,
is wholly unnattainable,” and then goes
on, in the next sentence, to speak of
“ moral certainty,” in contradistinction
, to “absolute mathematical, or metaphy*
sieal certainty.”
(to b« OOktinotsd.)