date

27 Aug 1804 Evidence Circumstantial
27 Aug 1804

Evidence

Circumstantial

Ch.2

§.1. [...?] [...?]

It is among the properties of psychological facts, as such not to be made /make themselves/ known, evidenced, but through /otherwise than/ through the medium of some physical fact. What I myself /you yourself/ intend - what I am /you are/ conscious of - by what motives my intention has on this or that occasion been produced - all these facts, being facts the existence of which is confined within my own breast, can not in the way of immediate perception be known to anybody but myself: if /to you/ they are made known to you in any way, it can only be by means of some physical fact or facts, the perception of which has made its way into your mind through the medium of some one or more of your corporal[?] senses.

Such then is the importance of circumstantial evidence. In the most important class of cases it is so necessary /indispensable/, that without it all the direct evidence imaginable would be unavailing. In vain would it be ascertained /established/ that the hand of Titius had given motion to the hatchet from whence Sempronius[?] received his death, unless it were also ascertained, that death or at least the affliction /wound/ [...?] had been the object of the will - of the intention of Titius - had been the effect or among the effects intended by Titius to be produced. In vain would it be established that Titius mounted and rode off with the horse, to which the property he had no good title[?]; in vain unless it were also ascertained that at the time of his so doing, he was conscious of having no right - no good title so to do. The offence of Titus would not in murder in the one case: it would not be theft, stealing, larceny, in the other.
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    In all these instances the psychological fact - the state of the mind is the only fact (it will be seen) that has any intrinsic importance. But as the state of one man's mind can no otherwise be made known to any other man than through the medium of some external physical indications, in all these instances it is the physical evidence, and that alone, that constitutes /is/ the object unavoidably[?] presented to the senses /[...?]/ /cognizance/ of a disposing witness or the Judge. In all these cases therefore we see not merely a single link of evidence, but a chain, whole[?] chain of evidence though that as short a one as a chain can be, of evidence. To the senses of the Judge are presented without the intervention[?] of any other object /medium/ different /sundry/ articles of physical evidence - the physical appearances durable or non durable of which the vocal language, the written discourse, the countenance the gesture, the deportment, the course of proceeding of the individual in question is /are/ composed: from these physical indications, in virtue of a propensity so frequently called into action as to have become as it were /in a manner/ instructive, inferences are drawn by the Judge affirming on the part of the same individual the existence of some psychological fact, intention to act or consciousness of intention according to the nature of the case. In the case of those modifications of circumstantial evidence that stand distinguished by the title of prudential, this psychological fact is an act of intentionality: in those which stand under the head of subsequential, /it is an exemplification/ an act of consciousness - inculpative criminal consciousness in a penal case, if the case be a penal one; inculpative criminal consciousness - consciousness of the existence of these circumstances by which the physical act is invested of the character of an offence /a crime/.
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    §.1. [...?] [...?] [...?]

    In the case of circumstantial evidence there are always two facts to be considered: 1. the principal fact /the factum probandum or[?] problematical/, the fact the existence of which is supposed or proposed to be proved or - to be evidenced: which is the subject of proof; 2 the evidentiary fact - the fact /the factum probans/ from which the existence of the principal fact is or may be inferred.

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    In all cases of a penal nature, (high enough in rank to be reputed criminal,) certain facts of a psychological nature are necessary to constitute the crime[?]: these are 1. criminative intentionality and 2. criminative consciousness: and in many cases supposing criminative intentionality and consciousness ascertained the mischievousness of the act will be liable to be modified by the nature of the motive or motives which give birth to it.

    In all these cases the principal fact will therefore /accordingly/ be of a complex nature. Its ingredients will be /The existence, or in some cases the non-existence/ of some physical act or acts, together with the addition of /in conjunction with/ the psychological facts just mentioned.