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90 XY. AMERICAN STATE TRIALS.

a case in which government itself fails in the end and object
for which it alone was created—it is the “‘immedicable vul-
nus’’ of a State.

You will remember, jurors, that the law does not require
proof of these hypotheses. On the contrary, the law depends
upon the principle that they must be excluded, excluded to a
moral certainty by proof. They furnish a defense upon the
bare suggestion of them, by showing that the evidence, the
cireumstantial evidence, of the State does not come up to
the standard of the law.

The last rule I read in your hearing establishes the inferior.
ity of circumstantial evidence generally, by declaring in no
case ought it to be relied on if direct and positive evidence
be within the reach of the prosecution. Let me further show
its fallibility by supposing a case of direct and positive evi-
dence, A man near the road in the thicket, or within the
enclosure of Mrs. Stevenson's, locks upon the seene. He
has a full view of Gordon and Bruff and Worrell, and brings
every incident into this court in the order of its happening;
the report of the pistol, the fall of Gorgon, the hiding of the
body, the departure. In a word, he tells you what did tran-
spire, as it transpired, who shot, whether accidentally or in-
tentionally, and what followed. If his relation showed guilt
it would show what guilt, and in whom. You would not in
such case have to grope your way by the guide of a moat
fallible and erring reason, to the unseen and unknown truth;
nor call upon your imagination to say might it not have been
thus, or sof You would be eut off from the dangerous exer-
tise of speculation and conjecture. The only question would,
be credibility. Faith in the witness would be the only exerciae
of the mind, Is he honest, ia he ablef would be the only in-
quiries. If he were not able, the eanfusion of his narrative
would show it, If he were corrupt, a eross-examination would
lay bare his perjury. I would defy any perjured witness to
give a false detail of that scene without detection. Yes, gen-
tlemen, cross-examination in your presence, with moral power
of the eye, can bring to the surface a perjury hidden in the
heart of a false witness. But we have no remedy for the

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