048-089.xml

Title: [Aug 1804 Evidence Circumstantial]

Description: Aug 1804

Evidence

Circumstantial

Ch.2. Circumstantial [...?]

§.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.

The factum probandum may in any case be either of /is susceptible of two main distinctions: it may be or[?] it must be either of/ a physical nature, or of a psychological nature.

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.

JB_047_051.xml

Title: [28 Aug. 1806 Evidence Whether]

Description: 28 Aug. 1806

Evidence

Whether one psychological fact can be redutionary of another?

1. Fear. (i.e. pain of apprehension) of consciousness

1. Confusion of mind of [...?] conscienceness: Answer confusion of mind in fear which for its source the circumstance of the cause[?] suspected, or any other source of danger.

II. Motive, of Intention

2. Motive of intentionably[?]? Not immediately; but exposure to the action of such and such a motive: but there is physical evidence.

III. [...?] of Motive

3. Intentionably, of motive? - Yes, in case answer as above.

IV. Of position, of Intention

4. Habitual enmity, sexual desire i.e. habitual disposition to experience pain & pleasure of it - circumstantial evidence of intentionality: viz: intention to do the acts tending to the gratification of the above propensities.

V - Falshood or Reticence, of Fear

5. Non-response, False response &c. The psychological fact of which they are immediately evidentiary, is fear: fear of some evil to result from the disclosure. But this fear may have had other causes [...?] of /than the/ particular guilt[?] in question.

VI. Consciousness, of the past agency in question.

Fallaé[?], by confusion is surely produced by religion

6. Self insinuative[?] consciousness is not absolutely conclusive evidence of the act. Consider case of religious insanity.

7. So in theft. consciousness i.e. belief of want of little may be conscious. A man may steal his own goods believing them to be anothers.

#3

At each link in the chain of causality, the indication is liable to be fallacious. Therefore the probative force will be less and less as the number encreases[?].

In the indication of the probative force Of the several species of circumstantial evidence there can be little or nothing said[?]. The evidentiary property /quality/ of the evidentiary fact would not exist, if the existence of it were not generally obvious. What the legislator can do in the way of instruction for the Judge is little more than the bringing the whole mass of doctrine together, for the purpose of affording him that /to him comprehensive view at the commencement of his [...?]/ of the subject - that sense of intellectual power which is so useful to the right discharge of his functions, and which otherwise might for some time be wanting /deficient/.

Taking any one of these points of facts by itself, the probative force will be apt to strike the reader at first sight as being incompleat. Accordingly it is seldom without a concurrence of several articles of circumstantial evidence there the answer will present itself as strong enough to be conducive.

048-001.xml

Title: [29 April 1803/ 13 Dec. 1808 Evidence]

Description: 29 April 1803/ 13 Dec. 1808

Evidence

Marg. Con B.I Ch.I

F Work that ---- with

Ch.2 Species and book on circumstantial

1. Facts considered in these ---- -- are expressed by words.

2. Ex gr. positive or other nature -- ----- - existence and non-existence

F 1. Facts 2. legally in operation or - material X not Y.

3. Physical or psychological

4. Individual x general

5. Susceptible of permanancy x unsusceptible of to = ------

6. Entities 1. Real x 2. Fictions - words not being names of real entities.

7. Fictions 1. of the first order

2. Motions. physical

2d of the 2d order - ------- 2. Relations including -----.

8. Facts 1. -----

2. Events -----

9. ----- 1. physical -----

2. Moral i.e. physical compounded with psychological

10. Acts 1. Transient 2. ----. See ---- chemical

11. Facts 1. principal 2. evidentiary

12. - principal 1. in penali. Inculpative &c 2. in non-penali - ----- &c

13. 1. simple 2. complex or aggregate which include the ---- -------

14. Fact x matter of fact = a simple fact or an aggregate of facts too multifarious to be demonstrated a fact. Matter of fact = matter of ----, of punishment, of reward.

15. Facts 1. individual x general

16. To individual belongs individuation - to general belongs classification.

FACTS 1

Evidence is relative and consists of facts - evidence of facts: viz: facts exhibited or brought into existence for the sake of proving the existence or non-existence of other facts. Legal evidence of facts considered in a legal point of view = facts legally ---- = material = operative p.1

2(a)

Fact and matter of fact p.1

3.

- for the purpose of grounding a decision to be made by a judge p.1

4.

Facts considered in a legal point of view are principal or evidentiary - This is an introd. ---- to proced.

Principal, what p.2

5.

Evidentiary, what p.2

6.

Principal legal facts admit of a particular description. Any fact may be an evidentiary legal fact. p.2

6(a)

To exhibit the connection between facts principal & evidentiary in all cases an almost endless task.

Reference to book on circumstantial evidence

Principal facts distinguished (as before).

Provable by

Plff Defd

In respect of punishment

1. Inculpative 1. Exculpative

or Criminative or justificative

2. aggravative 2. Exemptive

3. Extenuative

I In respect of the burthen of satisfaction.

1. partitive[?] 1. Exonerative

or -------

II. In respect of rights

1. Collative 1. Ablative

or ---titive or divestitive

FACTS

8. Direct evidence applies to the principal fact: circumstantial to an evidentiary fact p.4

9 Facts ordinary and scientific. p.4

10 Facts improperly distinguished, according to the propositions in which they are

1. positive /affirmative/ or negative p.4

11 - true and false p.4

11(a) Distinction in the Roman law between the fact of the offence (corpus delicti) & and the fact consisting of the personality of the offender p.4.

1 Requiring proof of the corpus delicti is tantamount to requiring real evidenvce in addition to personal.

2 Facts general & particular

3 ---tions of opinion included under the notion of facts. The ---- was the cause of the death

4 Any thing which in the subject of ----- may be termed a fact.

5 Facts are ------ by words - i.e. by terms. Individuation of

6 Facts Facts --- transient (most facts).

- 2.Continual ex gr. identity - local circumstances 3. ------- ---- ----- ---- = concealment

7. 1. Provable by direct evidence - ex gr. materially

2. not except by circumstantial evidence - positively

8 1. ----

2. content[?]

1. -----

2. General

*7 10 Principal fact 1. the aggregate 2. the component or ------ facts of which the aggregate is composed --- ------ ----- ----- is always -------.

F Before the distinction between principal and evidentiary, state that between permanent and ------ permanent appear most susceptible of permanence; ------, unsusceptibel of do.

I. Permanent

1. Relative ---- as between body & body

2. Continued forms, colours &c

3. Continued existence of any object

II Impermanent

1. ---- --- ----

2. Action

3. Past existence of any object

Facts considered without reference to law = not legally operative

2 - with reference to do = legally operative:

12 Fact x law

F Analyse ----- of ---- to shew the facts in it.

Facts psychological are

1. Consciousness with reference to this or that other fact -----

2. Intentionality with regard to acts and effects -----

3. Motives - obedience to this or that motive or mass of motives or preponderant mass or lot of motives.

Facts psychological

1. Individual (as above)

2. General (in point of time) as habits from --- ---- not ----- (---) dispositions (future provable facts) including affections, -----, virtues, vices &c.

13 Dec. 1808 distinctions in regard to facts.

1. 1 ----- x state of things. Events. 1. Acts: 2. Events at large

2. Facts positive or negative: positive existence of events &c. negative non-existence

1. Facts are positive or negative: positive existence; negative non-existence, of some entity.

2. ------ natural 2. ----: ---- correspond to to denominations[?]

3. ------- are 1. physical 2. psychological

4. Physical are 1. things or any -------

5. ------ ----- are 1. of the 1st order 1. states /-----/ of things 2. Events = -------

6. Events are 1. Acts (corporal) 2. ---- at large

7. 2. of the 2d order

1. ------

2. Relations

3. Qualities