tal circumstance of inconfiftency which is alleged against it, may be fuject to thofe imputations, it is more reafonable to adhere to the first, than to be influenced by the laft, unless, as in the preceding cafe, the oppofite relation is calculated not only to oppofe the conclufion, but to account for the undifputed facts (a). Sometimes a conclufion from circumftances may be fo forcible as to difcredit even the pofitive teftimony of a fact in abfolute contradiction of it, as for instance, where a crime is fully proved to have been committed, and the circumftances upon which it is imputed to the prifoner, cannot upon any reasonable fuppofition be reconciled with his innocence, the evidence of an alibi is naturally attended with fufpicion and distrust, and requires a stronger ground of reliance, than the or dinary prefumption of the veracity of evidence. I suppose all arguments of inaccuracy, from an indiftinctnefs in the obfervation of a particular time to be out of the question; for when the cafe may be reducible to that, it admits a lefs violent folution.

The circumstances from which a prefumption is deduced, may be dependent or diftinct. In the first cafe, all the facts constitute one entire chain, and a removal of any one of the links deftroys the connection of the whole; in the fecond, the removal of any one circumstance leaves the effect of the others fubfifting; but the concurrence of several diftinct and independent circumstances, leading to the fame conclufion, greatly increases the strength of the whole, and each affords a mutual fupport and corroboration to the other. It is judicioufly obferved in Butler's Analogy, that probable proofs, by being added together, not only increase the evidence but multiply it; and that unless the whole series of things, which are alleged in the argument he had before adduced, and every particular thing in it can reasonably be fuppofed to have happened by accident, then is the truth of it proved in like manner, as if in any common cafe numerous events acknowledged were to be alleged in proof of any other event difputed; the truth of the event difputed would be proved not only if any one of the acknowledged ones did of itself clearly imply it, but though no one of them fingly did fo, if the whole of the acknowledged events, taken together, could not in reafon be supposed to have happened unless the difputed one were true.

(a) The following cafe which has fallen under my obfervation, is partly connected with this reafoning: A. being in company with B., had his pocket picked of three guineas; B. told C. rather triumphantly, that he had picked A's pocket of 4 guineas. This was ftated by a court of quarter-feffions to the jury as an inconfiflency, which destroyed the presumption of guilt; but fuppofing there to be a falfehood, or inaccuracy with respect to the number mentioned by B., or an inaccuracy with refpect to C.'s relation, the variation in that refpect did not deftroy the prefumption, or rather conclufion arifing from B. faying, that he had picked the pocket of A.

In the preceding obfervations, the facts from which the conclufion is drawn are affumed to be clear and undifputed; if some Facts naturally tending to one conclufion are clearly afcertained and others which are in themselves ambiguous would conform to such conclufion, so that a given supposition would render the whole connected and confiftent; there may be in general fufficient ground to infer, not only the existence of the conclufion in queftion, but the true expofition of fuch ambiguous facts, as are confiftent with that conclufion; and fometimes, even, if all the facts taken feparately may be equivocal, but their union leads in one point of view to a clear and distinct conclufion, and fhews a relation and connection, but no reasonable ground can be fuggefted for a fimilar concurrence to that which actually exifts upon a different suppofition, fuch facts may mutually and reciprocally receive a proper expofition, by the general concurrence of the whole, especially where the conclufion is unoppofed by other facts, which are indicative of a different conclufion. The prefumption of a fact which is deduced from feveral undisputed circumftances, is fometimes more fatisfactory than the positive evidence of the fact itself, which may be open to mistake, or misrepresentation, and it is clear, that a well connected chain of circumstances is of all evidence the leaft fufpicious in point of veracity, for it is the evidence which is leaft capable of being fabricated with effect.

But it often requires great judgment and difcretion to trace with propriety the connection between the existing circumstances, and the presumption which is applied to them; and there is no enquiry in which rapidity and precipitation may be more frequently detri mental. I have already obferved, that a presumption is not deftroyed by the mere difficulty of accounting for any incidental circumftance, provided the other circumftances which are undisputed neceffarily tend to the conclufion in difpute. On the other hand a presumption is not to be haftily formed, from the difficulty of explaining the cause and reafon of exifting circumstances, unless the whole of the fubject with which thofe circumftances are connected is fufficiently feen. This applies more ftrongly, when the difficulty is to account for the non-existence of facts, which might be reasonably supposed to exift upon a different supposition from that which is affumed. There is no point upon which presumption is more material, than in afcribing to particular conduct, motives and difpofitions which cannot be feen, and can only be inferred from the facts that are feen, and the probable motives by which they may bé occafioned; but it will often be very fallacious, to reafon upon A 24 the

the motives or difpofition of others, without a most perfect view of all the circumstances with which they are connected.

In the Douglas caufe, feveral queftions were propofed with refpect to the motives of lady Jane, in doing or not doing particular acts, fuppofing the filiation to be real. In answer to one of the questions, Why did the not bring evidence of the children being really hers? It is truly obferved, that it is difficult to say what is the properest manner of acting, before the event points out the inconvenience of acting in one manner rather than in another, and even ignorance can reafon better after the fact, than wisdom can before. Towards the clofe of the cafe are the following obferva, tions. "If the defender has not been able to account for every particular in the conduct of his parents, the fault lies in the nature of things. The attack made on the conduct of the defender's parents, has obliged him to explain it upon fuch motives as naturally infer their innocence, which must be conclufire against an argument which affumes for its bafis their guilt. The poflibilities which run through the purfuer's reafoning on this head, are anfwered by probabilities: and although it is abfurd to demand, and impoffible to anfwer, why an action in itself indifferent was done in one way rather than another, yet the defender hopes that he hath left no part of his parents' conduct unaccounted for. The prefumption for innocence fupports the account he hath given; and the purfuers have perverted all principles of common fense, in order to wreft a natural behaviour, to an unnatural prefumption of guilt. The fallacy of their argument has forced them to destroy under one head, what they had reared under another; to confound things and terms in their nature most oppofite; and to proceed in a perpetual rotation, inferring a crime from circumstances of con duct, and explaining that conduct by the affumed principle of a crime committed. In other words, they were guilty, therefore they acted fo-they acted fo, therefore they were guilty. The trifling objections raised to the manner in which the defender's parents acted, down to their arrival in Paris, have been stated and refuted in the preceding part of this cafe. The circumstances of their fortune account for the retirement, not mystery, in which they lived there: and the genuine, unvaried, parental tenderness with which they treated the defender from the hour of his birth, till that folemn confummation which their dying behaviour gave to his ftate of filiation, is more than a fuffieient anfwer to the cri ticisms, not arguments of the purfuers. The temporary motives which arife from particular characters; and particular fituations are too undetermined, to become the foundation of a legal decifion.

But

But if the defender's cafe even ftood on this iffue, he would be warranted, from the most undoubted evidence, to affirm, that the conduct of his parents was fair, natural, and unaffected, if they are fuppofed innocent; but forced, unnatural, and affected upon the pursuers' unjust affumption, that they were guilty of an imposture." One inftance adduced in the civil law, of a light and infufficient ground of prefumption is, where a guardian who had no estate of his own, is found to have enriched himself during the tutelage of his ward. This circumftance does not warrant any inference, that the acceffion of fortune has arifen from mifapplying the pro perty of the ward. Nec enim pauperibus industria vel augmentum pas trimonii quod laboribus et multis cafibus quæritur interdicendum. L. 10. Cod. Arb. Tutel. I have in an inferior court known the circumftance of five guineas having been stolen from one man, and the same amount being about the fame time spent by another, allowed as a sufficient prefumption to warrant a conviction of felony.

By the Roman law, if a father and fon perished at the fame time by fhipwreck, or in battle, and there was no diftinct evidence to afcertain which of the two died firft, the prefumption was, that the fon died first, if under the age of puberty, but that if he was above that age he was the furvivor; upon the principle that perfons under the age of puberty, are less robust than adults; but that after paffing that period, a younger perfon had more strength than an elder. But this rule was subject to fome exceptions for the benefit of mothers, and in support of the rights of patronage and fiduciary bequests. This point arose upon the death of General Stanwix and his daughter, mentioned in the case of the King v. Dr. Kay. 1 Bl. R. 640, the property being claimed by the brother of the daughter's mother, upon the prefumption that she had survived her father; the decifion in the cafe reported was upon a collateral point, and the ques tion was never judicially determined. In Mr. Fearne's posthumous works, there is a very elaborate difcuffion of the subject, in which his conclufion feems to be, that the prefumption of the daughter's furvivorship could not be fupported. This fubject came before Sir William Wynne, as judge of the Prerogative Court, in the cafe of Wright v. Netherwood, 6 May, 1793, upon a question respecting the implied revocation of a will by marriage, and the birth of a child, of which I have inferted a note to the cafe of Lugg v. Lugg, 2 Salk. 593. The father and child having perished together by fhipwreck the learned judge faid, that with respect to the priority of death, it had always appeared to him more fair and reasonable in these unhappy cafes, to confider all the parties as dying at the fame in

ftant

ftant of time, than to refort to any fanciful fuppofition of furvivorhip, on account of the degrees of robustness.

SECTION XV.

Of the Authority of Res Judicata.

The principles which regard the effect of a judicial determination, are very well explained in the fection upon that subject in the preceding treatife of Pothier. It is highly requifite for the purpofes of fecurity, that a certain authority shall be established for the conclufive determination of litigated questions, but the particular mode of conferring and executing fuch authority, must be a matter of pofitive regulation. The judgment which is entertained in particular infances, may be and often must be founded upon erroneous reafoning, but as the fubject, wherever it refts, must ultimately be fubject to human-infirmity, the imputation of such error ought not to be regarded as an impeachment of the authority, unless applied in its direct correction, according to the regular course of an appellate procedure.

The great principle illuftrated by Pothier, with reference to the civil law, and which is in its nature applicable to every other system, is, that what has been regularly decided by a competent tribunal, with regard to the fame fubject, and the fame cause of difpute, and between the fame parties, or thofe fucceeding to their rights, and in refpect to the fame character fhall be conclusively regarded

as true.

The recent cafe of Outram v. Morewood, 3 Eaft, 346 (in which it was ruled that a defendant who pleaded in bar to an action of trefpafs, a right to get coals by virtue of an ancient deed, was bound and estopped by a verdict in a former action in which his wife, under whom he claimed, had made the fame defence, and in which iffue was taken upon the identity of the land), affords a very instructive view of the application of fimilar principles, according to the law of England. The following are some of the paffages, in the very learned and elaborate judgment of Lord Ellenborough upon that occasion: "A recovery in any one fuit upon iffue joined on matter of title, is conclufive upon the fubject matter of fuch title; and a finding upon title in trefpafs not only operates as a bar to the future recovery of damages for a trespass founded upon the fame injury, but alfo operates by way of eftoppel to any action for an injury on the fame fuppofed right of poffeffion, And