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29 Aug 1804
Evidence
Circumstantial
Ch.1
§.2. Practical use
As to the question why the legislator does wrong by busying himself on this ground it is, in its conception at least, extremely simple. Data[?] important to warrant on his part a determination to any such effect, cannot, in the nature of the case, be present to his mind. The collection of them can never be complete and adequate, without the addition of such others as can not be present to any mind but that of the Judge, and such others, to whom the same opportunities may have happened to present themselves.
(The strength of the connection between the principal fact or facts on the one hand and the evidentary fact or facts on the other hand are susceptible (as will appear more and more clearly as we advance) of an infinite number of degrees:) in other words the probative force of the evidentary fact or facts is susceptible of an infinite variety of degrees: and although it should for argument sake be supposed to have been settled, what degree of probative force is sufficient to warrant decision in favour of the one or the other party in each species of cause, yet in no given individual cause of any species would it be possible so to describe the mass of circumstantial evidence exhibited in that cause, and deemed of the requisite force, as to frame by abstraction, out of that individual mass of circumstantial evidence so deemed sufficient, any general rule capable of indicating the sufficiency or insufficiency of the mass of circumstantial evidence afforded by any other individual cause.
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Title: [23 Aug 1804 Evidence Circumstantial]Description: 23 Aug 1804 Evidence Circumstantial Ch Application 10. But no species of behaviour can on any describable species of occasion, be so far considered /deemed/ as conclusive as to warrant the laying down a general rule obliging the Judge, as often as that sort of occasion presents itself, to consider that species /sort/ of behaviour as conclusive evidence of the sort of principal fact in question - in a word of a principal fact of any sort. 11. The reason is that in the assumption of a necessary and unreflecting[?] connection between any sort of external behaviour and any state of mind in respect of the fact of intentionality consciousness /the fact/, and /or/ the nature of the operating /determining/ motive force a certain unvaried and inexorable[?] line[?] of conduct on the occasion in question is assumed as being universal among mankind. But to prove the [...?] of this supposition, the single case of insanity (a case as every one knows but too frequently verified) is sufficient. And in insanity the degree of derangement is susceptible of an infinity of degrees /variable upon a scale of infinite length and number/ between perfect sanity and perfect wildness[?]. 11. The supposition of such conclusiveness supposes perfect consistency to be constant and universal in every human mind. But there never does, nor in human probability ever will exist that human existence /being/, of whose conduct any such perfect consistency can with truth be predicated.
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Title: [21 Sept. 1804 Evidence Circumstantial]Description: 21 Sept. 1804 Evidence Circumstantial Ch Failure Causes § Delinquency - Fear Add ambiguity on [...?] fear and anger? depending on idiosyncrasy. A sort of compound evidentiary fact composed of the symptoms in question and the occasion which brought them under observation will therefore in general constitute the slightest article of evidence that on the occasion in question can come to be adduced: and the probative force of this compound fact is the force which any infirmative facts of which the case may be found susceptible, will have to combat. Let us proceed in our inquiry of these informative facts.
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Title: [16 Sept 1804 Evidence Circumstantial]Description: 16 Sept 1804 Evidence Circumstantial Ch. Failure Causes §.2. Generalia §.2. In the instance of each of the above modifications of circumstantial evidence, we have observed /thus much we can not but have observed, viz:/ that with reference to its correlative principal fact, it is attended /possessed/ with a degree though an unliquidated degree of probative force. We come now[?] to speak of the several infirmative facts, by the respective probability of which that force is, /in the instance of each such evidentiary fact, lessened./ weakened. Though the expressions thus employed on the occasion of the operation in question - expressions employed for the purpose of giving to our conceptions that degree of clearness and precision of which they are susceptible, present probably an appearance of abstruseness, yet in the operation itself there is nothing that is not perfectly familiar and exemplified by almost every body in every day practice. What we have to do is no more than this: - viz: on the occasion of each species of evidence, to think of the several cases that may by possibility have taken place - cases in any one of which the conclusion we should at first view be disposed to draw from the evidence would be fallacious. Of the several /aggregate mass of the/ supposed facts that are here brought to view under the relative character of infirmative facts, part has been suggested by actual history (histories of judicial decisions) other part by analogy and abstraction, working upon the stock thus furnished by experience or supposed experience. The several histories will either be quoted or referred to, in so far as the source has been noted down or can be recollected. Where no such individual exemplification is exhibited, the addition of such individual exemplifications, such as the progress of time may happen to bring them into existence may be matter of amusement if not of profit to some future hand. By the help of this apparatus my endeavour will be to discover and bring to view such infirmative facts, such corrections to /preventatives of/ each conclusion, as my powers such as they are, are for the present able to reach. Whosoever shall endeavour and succeed in his endeavours to add to the catalogue, will render proportionable service to the interests of truth, humanity and justice. For in most of the instances delinquency is in some shape or other the ultimate principal fact. In these several[?] instances, the discovery of a fact, of a capable nature to speak in the character of an infirmative fact as[/] above described may operate in prevention of undue punishment - in preservation of innocence.
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