048-083.xml

Title: [31 Aug 1804 Evidence Circumstantial]

Description: 31 Aug 1804

Evidence

Circumstantial

Ch. 1. General[?]

§.3. Order [...?]

§3. Order of enquiry.

The course pursued by /order observed in/ the disquisitions contained in the present book will be found to be [...?] as follows -

1. To exhibit some general explanations of relation to the nature of this class of /circumstantial/ evidence -

2. To give a catalogue, the more ample the better /as ample as possible/ of such tools[?] /species/ of evidence referable to this class as appear alike applicable to an extensive class of causes: leaving as an endless task /labour/, the task of giving /exhibiting/ the whole mass of circumstantial evidence capable of applying to this or that particular species of cause.

3. In describing, as far as appears necessary, the nature and characteristic properties of each such species of circumstantial evidence, to show in what manner it may contribute to satisfy the mind[?] concerning the existence or non-existence of the principal fact (the fact supposed to be evidenced) to which it applies.

4. To show at the same time the cases in which, and thereby sometimes the causes from which, its probative force is liable to fail: - the cases and causes of its failing to be conclusive.

048-095.xml

Title: [30 Oct 1803 Evidence Circumstantial]

Description: 30 Oct 1803

Evidence

Circumstantial

in general

On the occasion /In relation to subject/ of these several modifications of circumstantial evidence, two points /three questions/ require all along to be kept in view[?] .

1. what the fact is /is the nature of/ which is regarded in the character of an evidentiary 2. what each species of evidence is in itself: what the sort of fact /fact/ is, in relation to which it is in the nature for[?] it /the evidentiary fact/ to operate as evidence: and what the circumstances are, if any, by the introduction of which the operating of it in that character may be rendered inconclusive.

Note

The division into physical evidence /if at all/ (understand circumstantial evidence) and psychological is an exhaustive one: in one branch or the other may be included every possible modification of circumstantial evidence. Portions /Divisions/ thus extensive[?] are two extensive, both of them, to apply exclusively to any species of legally-important fact: The point of view /character/ in which they are here mentioned is accordingly that of so many reservoirs or fountain heads[?] up to from which all modifications applying to any particular [...?] /species/of legally important facts may be traced. Under these three /two/ articles /heads/ there will accordingly be no mention made /room for any/ of the species of fact: but after these the designation of the species of fact evidenced will be a constant [...?] to /accompaniment of/ the each modification of circumstantial evidence.

The same observations may be extended /applied/ to the two next heads with little difference. Under /To one or other of the two first heads may be ranked /referred/ all circumstantial /real/ evidence in the case where it is brought forward in affirmance of a fact fact undertaken /endeavoured/ to be proved: under one or other of the two next all circumstantial evidence in the case when it is brought to view in disaffirmance of a fact affirmed and evidenced, i.e.[?]: endeavoured to be proved on the other side. Flor it is only by reference to other facts that the improbability or impossibility by which is meant nothing more than improbability in the highest conceivable degree can be proved: the expression by which it is spoken of as if it were an absolute property, residing completely and exclusively in the improbable fact itself, may be received for the convention of discourse, but would lead to confusion and error, if taken for a correct representation of the nature of the case.

JB_045_605.xml

Title: [3 Sept 1812 Evidence Introd]

Description: 3 Sept 1812

Evidence Introd

Ch 12 Circumstantial

Out of the same hands has nay attempt been made to take the charge of drawing the influence form circumstantial evidence? avowedly, in the lump, that is in all cases and under that name, no: on the contrary, there being few causes in which the nature of the case does not present the two species of evidence in a state of the most intimate union, so it is that the circumstantial evidence is judged of by them as of course along with the direct; nor, for any such purpose, as that of dividing the cognizance between the Jurybox and the Bench, is any distinction made.

At the same time, so it is, that as often as evidence of the circumstantial kind has presented itself, the business of drawing the inference from it has, as often as such has been his pleasure been, by the Judge, taken out of the hands of the Jury, and, under the name of matter of law taken into his own hands; and this with such effect, as in and by so doing to determine the fate of the suit or cause.

Between the cases in which the drawing the inference from circumstantial evidence is proper to be left to the Jury, and the cases in which it is proper for it thus to be taken out of their hands by the Judge, has any line been ever attempted to be drawn? - Not any propriety out of the question, could any line be drawn, distinguishing with any tolerable clearness the cases in which the one course has been taken from the cases in which the other course has been taken, in actual practice? - Impossible, - What then is the result? - that in this as in so many other cases, arbitrary will, to say no worse, has been the only guide.