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18 Nov 1804
Evidence
Circumstantial
Ch Probative force
§ Warning[?]
5. Do not, from the observation of the non-existence of any direct evidence on either side, consider the body of evidence on that side (it being composed exclusively of circumstantial) as insufficient to warrant a decision on that side Consider how many sorts of facts there are which are every day proved to general satisfaction, although in their nature such that direct evidence in proof of them is seldom if ever[?] to be observed /adduced/.
6. Do not, in consideration of the strength of the body of direct evidence adduced in proof of a fact, regard the production of circumstantial evidence as useless on that side, or unavailing on the other.
7. Where from the same source, viz: the testimony of the same person from which you have circumstantial evidence of the testimonial kind - viz. of that sort which consists of general assertion - such as confession or accusation or assertion of right, in general terms - you can also have direct evidence, consisting in a circumstantiated relation or statement of the same fact, never[?] proved[?] upon the ground of the circumstantial alone, to the exclusion of the direct evidence.
8. Never lose sight of the distinction between the question of admissibility and the question of conclusiveness, in regard to circumstantial, any more than in regard to direct evidence. Infer not of this or that article of evidence that because if admitted it would not be conclusive, therefore it ought not so much as to be admitted.
These cautions /The above/, in proportion as they appear reasonable, will be apt to appear needless. Turn to practice, shall find them far from being in that case.
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Title: [18 Nov 1804 Evidence Circumstantial]Description: 18 Nov 1804 Evidence Circumstantial Ch. Probative force §.3 Warning[?] §. Instructions (Monitory[?]) to the Judge in relation to circumstantial evidence. A general view of the subject of circumstantial evidence has pointed out a number of errors, against which it may be of use that the Judge should be put upon his guard, by so many monitory[?] rules. 1. Do not in consideration of the weakness, much less of the mere[?] inconclusiveness of any fact in the character of an evidentiary fact, reject it altogether, so as to refuse to take it into consideration, or to give it a place in any account that may be taken of the items entering[?] into the composition of the body of evidence. Confound not the question of admissibility with the question of conclusiveness. 2. Much less[?] for inconclusiveness. - confound not the question of admissibility with the question of conclusiveness. 3. Do not, in contemplation /consideration/ of the separate slightness of the articles of which a body of circumstantial evidence is composed, treat[?] /consider/ the whole body as insufficient to constitute /warrant/ a just ground for a decision on that side. 4. Do not in consideration of the strong light that would have been thrown upon a cause by such or such an article of circumstantial evidence conclude without further reflection, that for want of such article the body of evidence must be treated as insufficient. 5. Do not, in consideration of the strength of any fact, in the character of an evidentiary fact, consider it as singly /separately/ conclusive: without other evidence on the same side, and without adverting to the infirmative[?] facts, by which the probative force of it is liable to be weakened. Consult upon occasion the table of Infirmative[?] facts. 6. Much less, hold yourself excused by it from listening to or looking out for counter-evidence.
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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./
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Title: [16 Sept 1804 Evidence Circumstantial]Description: 16 Sept 1804 Evidence Circumstantial Ch. [...?] [...?] [...?] § 1. Generalis[?] Ch. Probative force of the several species /above modifications/ of circumstantial evidence - causes of its failure. Take on the one part any given principal fact; on the other, any given evidentiary fact, being such with reference to the above principal fact: and let the existence of the evidentiary fact be supposed to be certain - admitted as such on all hands. To whomsoever it appears that such is the strength /probative force/ of the connection between the two in this case no /no/ [...?] of things can take a place in which the principal fact shall not have happened, to him the probative force of the evidentiary fact must /can not but/ appear conclusive. To whomsoever it appears that in the same case this or that fact may have existed /had existence/, the existence of which being supposed the principal fact may not have happened, to him the probative force of the evidentiary fact must appear short of conclusive The deficiency in point of conclusiveness will appear greater and greater, the greater the probability of such collateral and hypothetical infirmative fact: and suppose a number of these hypothetical facts, the probability of each being the same the above deficiency will be greater and greater, in proportion as the number of such infirmative facts is greater: - all these separate /several/ infirmative facts will form an aggregate /a sort of complex/ infirmative fact the infirmative force of which will be as the number of the elementary or compound infirmative facts. In like manner by the ordinary mathematical methods, if the probability of each such elementary infirmative fact were given, although in the case of each it were different in the case of each, the aggregate infirmative force of the aggregate infirmation fact might be obtained.
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