C O M P A R AT I V E S T U D Y is nothing but absolute possibility, where all the moral probabilities of evidence are against the prisoner, where nothing can save but absolute possibility that he may be innocent, it would be going too far to conclude him innocent from that, that would make it impossible that public Justice should take its course. Therefore, the true question for your consideration is, whether judging of this fact, as you judge of all other facts, that happen in the course of your dealings with mankind, and your correspondence with one another, it appears to you be proved satisfactorily, and to moral demonstration, that this prisoner must have been the person that secreted this letter, and took these notes out of it, if that be the fair result of this evidence, then the prisoner is guilty, and it will be your duty to find him so. If on viewing the evidence any reasonable doubt remains on your minds, that he is a person that secreted this letter, and took the notes out of it, he will be entitled to your acquittal.213 In this case, the judge distinguished between “absolute possibility” and “moral probability,” suggesting that an absolute possibility of innocence would not be sufficient to acquit the accused. The judge states that if the evidence “proved satisfactorily” the guilt of the accused, it is jurors’ “duty to find him [guilty].” Where there is “reasonable doubt,” the accused is “entitled to … acquittal.” The reasonable doubt language was repeated in other cases thereafter. In 1784, in the case against Richard Corbett, who was charged with arson (setting fire to buildings), the judge advised the jury in his summation of the evidence: But you gentlemen will weigh all these circumstances in your minds, in such a case you certainly will not convict the prisoner on a mere suspicion; but if you think his conduct such as can by no possibility be accounted for consistent with his innocence, you will be obliged to find him guilty; I do not mean to say that you are to strain against all evidence, or that if you are clearly and truly convinced of his guilt in your own minds you ought to acquit him, but I say if there is a reasonable doubt, in that case, that doubt ought to decide in favor of the prisoner.214 This case shows that the jurors were “obliged” to find the accused guilty if there is no “possibility … consistent with his innocence,” however, it appears to be left to the jurors’ discretion to acquit in case of “reasonable doubt.” In the 1786 trial of Joseph Rickards, who was charged with murder, there is no discretionary formulation: “If you are satisfied, Gentlemen, upon the whole, that he is guilty, you will find him so; if you see any reasonable 213 214 Trial of John Higginson, The Proceedings of the Old Bailey, Ref: T17830430-67 (emphasis added). Trial of Richard Corbett, The Proceedings of the Old Bailey, Ref: T17840707-10 (emphasis added). 45