date

27 Sept 1803[?] Evidence Circumstantial
27 Sept 1803[?]

Evidence

Circumstantial

We shall see /It will be seen/, that in the cluster[?] of principal facts the concurrence of which is necessary in the instance of most if not all offences to bring the offence under the notion of a crime there is one sort of fact in most cases, an ingredient altogether indispensable, which in its very nature is incapable of being proved by direct evidence - at least by any other testimony than that of the agent himself - which is incapable of being proved, and which consequently when proved by any other /uncorroborated by this/ testimony never is proved by any other than circumstantial evidence. This fact is the existence of criminal consciousness in the agents mind. (Any witness that is not blind may see into another man's countenance: no witness, had he the eyes of Argus could ever see directly into another's mind.)

Among the Romanists, judging from presumptions alone means, if it means anything, judging from circumstantial evidence alone. On this or that occasion you /we/ will find them telling you in the form of a general or even universal proposition that you ought not to judge from presumption from presumptive evidence. If so, from what then is it that you /we/ ought to judge?

When the individual fact in question being an evidentiary fact is to a certain degree remote from the principal fact, then indeed you may say without difficulty and without any [...?] line[?] antecedently[?] drawn by the legislator - this is not a principal fact but a mere evidentiary fact; the testimony by which this fact is endeavoured to be proved, is not direct but circumstantial evidence. But when the principal fact and the evidentiary fact touch, then it is that any decision grounding itself on any supposed distinction between them, any decision rejecting the evidence on the ground of its being no other than circumstantial evidence, will be sophistical[?] in its nature and pernicious in its effects: pernicious because the distinction having no settled foundation in the nature of things, the decision grounded on it could not have been foreseen, but whenever pronounced must have fallen like a thunderstroke upon the party hurt by it.
Similar Items
  • Title: [4 July 1812 Evidence Introd]
    Description: 4 July 1812

    Evidence Introd

    Introd

    Ch. 23. Technically appropriate

    '.1.

    Thus if it be not /where it has not been/ upon the point /matter/ of law, it is upon the effect of some acknowledged fact in the character of an evidentiary fact with relation /regard/ to some assignable fact in the character of a principal fact in a /and this/ word in the character of an article of circumstantial evidence that the question has turned on the occasion of every decision of which under the head /part//division/ in question mention has been made will be found manifest by /appear plain enough it is supposed to/ every lawyer by whom the contents of it are looked over in this view.

    The cause of this distinction will also it is supposed be sufficiently apparent: of this distinction that is of those reasons a not entering upon them to pronounce on /say what ought be/ the effect of /in which of/ direct evidence, coupled with their obtrusion /intrusion/ in taking upon them to say what ought to be and thence what shall be the effect of an article of circumstantial evidence.

    To say what ought to be to the effect of an article of direct evidence - of the testimony of a witness would be to decide upon the probative force of the evidence delivered by that same witness. But in every /each/ instance this question is altogether of an individual nature: the decision pronounced upon it incapable of serving as a rule or a guidance in any other individual case - altogether incapable of serving in the character of a general rule incapable therefore so long as any power at all was left to Jury, incapable of furnishing any the least shadow of a pretext for taking the question into the hands of a Judge.
  • Title: [11 Sept 1803 Evidence Ch.]
    Description: 11 Sept 1803

    Evidence

    Ch. [...?]

    Instructions

    Considerations in terminis [?]

    [...?] Improbabilities

    C Considerations proper to be borne in mind in judging of the weight of evidence

    the cause of distrust /suspicion/ - Improbability of the fact deposed to.

    The improbability of a fact in itself may be considered as a sort of counter-testimony - a sort of circumstantial evidence operating in contradiction to any direct evidence by which the fact in question would otherwise be considered as proved.

    The improbability of a fact may rise to such a degree as to render it absolutely incredible, incapable of being proved to the satisfaction of him who thinks of it, if not by any evidence, at least by any such evidence, as is actually adduced in proof of it.

    If the inference drawn from the improbability of the fact, viz: that it is not true be just: i:e: if notwithstanding the evidence /testimony/ by which the existence /truth/ of it is asserted it really was not true the fault must lie either in the inferences deduced from the testimony or in the testimony itself. If the testimony itself was to such a degree positive as to assert the existence of the matter of fact in question in direct term, then the fault can not lie in the inference deduced from the testimony by the Judge but must be in the testimony itself. The testimony must have either incompleat or false or both: though if as above it were to a certain degree positive, as above, there may be no room for charging it with being incompleat, and if the fact so asserted be false, the testimony by which the existence /reality/ of it was asserted must necessarily have been in some circumstance or other false. But as an assertion made by a man may be false without his being conscious of its being so, such falsity is not of itself proof of perjury. /may very well have place without perjury./
  • Title: [[048-179b] 25 Sept. 1804 Evidence]
    Description: [048-179b]

    25 Sept. 1804

    Evidence

    Note

    Circumstantial

    Ch. Failure Causes

    §. Delinquency. Clandestinity

    Disguise[?] - Search[?]

    [...?] (a)

    B. Of Circumstantial Evidence

    Ch. ( ). General View[?]

    §.1.

    The [...?] of circumstantial evidence presents itself as the first to be brought to view. - Why so? - Because this can /is may/ be /capable of being/ treated[?] of without the [...?] of any part of the matter contained in /under/ any of the other heads. None of them can be clearly or /and/ satisfactorily treated of without the introduction of more or less of the matter contained in this.

    The relations we have here to bring to view are no other than those /the relations/ which subsist[?] between fact and fact: between one fact considered as the principal fact - the fact to be proved or disproved, and another fact considered as evidentiary in relation to it - as applicable in the character of evidence to prove or to help prove the existence or non-existence of it.

    We shall not in this whole book, be imbarassed[?] by any of these doubts and difficulties which [.../] hover over human testimony /the expanse/. For the purpose of the inquiry /argument/ The existence of the evidentiary fact will be supposed to have been established, no matter how: and the question /consideration/ will be confined to the connection between that and the principal fact to the proof of which it is considered as applicable.

    Note

    Clandestinity of the act - Of this and the next[?] modification of voluntary deportment evidentiary /capable of affording circumstantial evidence/ of delinquency, viz: 2.[?] Forgery of real evidence: 3. Opposition to physical investigation. 4. Tampering with witnesses. 5. Latitantcy. 6. Substraction of property and other pledges of justiciability, and 7 Tampering with prosecutor, it is almost needless to observe that in several transactions the scene being out of court the evidence to the Judge will not present itself in the shape of immediate, but only in the shape of reported evidence. Consequently the evidentiary chain can not in one of these cases consist of any smaller number of links than five, nor of any smaller number of joints than four, exposed each of them to the infirmative force of its several infirmative facts, as above exhibited.