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9 Sept 1804
Evidence
Circumstantial
Ch. Generalia
§. Modification
[...?]. Evidence by deportment - by demeanour - by behaviour - by conduct by actions - all these denominations indicate nearly the same thing - personal evidence of this sort though it be of a nature peculiar to persons /besides having a person for its source/, and agrees in some respects with evidence by discourse, differs widely and materially from it in other respects. In the way of discourse, evidence can not be given by a person without the concurrence of his will, directed to the very object of inducing a belief of the facts reported by it: in the way of deportment evidence may be given - the existence of the facts in question suggested - without any such concurrence. Indeed it is mostly in the case when /in which/ if it depended upon his will no such suggestion - no such persuasion - would take place, that the evidence in the way of deportment is resorted to. discourse it is current /well known/, is the ordinary, most apposite, and most determinate and unambiguous vehicle for human ideas for personal evidence. Deportment is but an imperfect and makeshift substitute for discourse. Accordingly it is only when evidence in the way of discourse is not to be had or is regarded as fallacious, that /recourse is had/ evidence in /by/ the way of deportment is recurred to. Evidence by deportment is not - nothing but evidence in the way of discourse is - testimony nor that when extra[?] judicially uttered[?]. Questions substituted in some cases of natural defect for language /words/ are not deportment but testimony. Signs also, if employed instead of language, come under the notion of evidence by discourse, and not under that of evidence by deportment.
Similar Items
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Title: [[...?] 1804 Evidence Ch [.]Description: [...?] 1804 Evidence Ch [...?] Assess Forgery of Real - and all the other modifications of circumstantial. Ch. Interception of criminative evidence. By the interception of criminative evidence I mean the preventing it from coming into existence. The explanatory locution would have been more expressive, but it would have been too long to be employed in the character of a subject of predication. Under the notion of the act must to this purpose /on this occasion/ be understood to be included that of the endeavour. The evidence considered on this occasion as capable of being intercepted or endeavoured to be intercepted may of course be any species of evidence whatsoever: real, or personal; personal whether exhibited by testimony, by passive /active/ deportment of by active /passive/. In so far as it bears reference to real evidence, interception of evidence is closely allied to forgery of real evidence in /under/ one of its shapes /modifications/, viz: [.../] obliterative. They /There/ exist not however between them the two notions in any case any coincidence: of neither of them is the denomination capable of being applied /employed/ to denote the other. Obliterative forgery - obliteration - supposes the evidence previously in existence: interception supposes it not to have been previously in existence Forgery is moreover confined to real evidence, including written evidence in respect of that part of its nature whereby it coincides with, and forms a species /constitutes a modification/ of real evidence. Interception, as already noted, applies to every modification of evidence - without exception - personal as well as real. Go on with 1. Productive causes 2. Infirmative facts - Reference to the species intercepted.
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Title: [27 Sept 1803[?] Evidence Circumstantial]Description: 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.
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Title: [9 Sept 1804 Evidence Circumstantial]Description: 9 Sept 1804 Evidence Circumstantial Ch General §. Modifications By the above /all these several/ marks, evidence by deportment, though it be personal evidence as well as from a personal source, will be clearly understood to be - in no case direct - in every case circumstantial evidence. Its connection with the principal fact in question will be required to be made out and its probative force will be understood /seen/ to be reduced /reducible/ by the same connections /cause/ in this case as in the case of real evidence from a personal source. When subsequent to the principal fact in question - it being a punishable act it may operate as evidence of intention with reference to the commission of the act: a sort of information that may not so frequently be conveyed by purely real evidence. But when subsequent to that same act, it will most commonly be indicative of fear and nothing more - fear - the same sort of psychological evidence, as, at that period, will most frequently be the psychological fact indicated by real evidence.
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