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8 Nov 1803
Evidence
Circumstantial
in general
Continuation
Another thing is that the greater the number of /is of the/ distinct facts that come to be deposed to, the greater the probability of different deposing witnesses, and the greater the probability that among them there will be some one or more whose relative situation would place him out of the reach of those causes of suspicion that will be apt to attach upon the witness to whose lot it falls to speak to the principal fact. In the case of injuries to individuals, to /To/ the principal fact the sort of deposing witness most sure to be met with is either the party injured, or some person connected by self-regarding interest or sympathy with the party injured: for example the party beaten, insulted, plundered, cheated: while among the infinitely diversified chain of evidentiary facts it will frequently perhaps frequently happen that there shall be one or more that have fallen under the cognizance of perfect strangers: the preparations, the declarations of intention, the threats, the consultations among the accomplices, the journeys to and from the spot, the clandestinity[?] of deportment, the confusion of mind, the silence in cases where innocence would have given birth to explanations for the purpose of doing[?] away suspicions suggested by observing eyes to enquiring lips - facts of this sort are liable to have found a variety of witnesses, many of them standing altogether clear of those suspicions of bias or mendacity which, as already observed, are so apt to attach upon the sort of witnesses to whom the perception /cognizance/ of the principal facts is so apt to have been confined.
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Title: [14 April 1803 Evidence Object]Description: 14 April 1803 Evidence Object Of these two problems the solution of the first will readily enough be understood to belong to the topic /subject/ of Procedure. Why? because the providing for the presentation /exhibition/ of the evidence to the cognizance of the judge requires a multitude of preliminary steps which on the first mention of them will be found to occupy a place, and that a principal one, in the series of steps of which the course /system/ of Procedure is composed. 1. How to trace out and discover such pieces of evidence whencesoever furnished whether by things or persons i.e. witnesses as the nature of the case promises, from[?] the complexion of it, to afford. 2. When found, how to guard it against the danger of being lost before the time comes for the presentation of it to the Judge. 3. When found to exist, how to cause it to be forthcoming. 4. Witnesses forthcoming, how to make sure of their deposing. 5. Witnesses forthcoming and deposing, how to make sure if possible what they depose shall as far as [...?] within their respective cognizance be the truth, the whole truth and nothing but the truth. Of these problems - not to mention other intermediate or incidental ones the solution for the reason just mentioned will be seen at first glance to belong to the subject /system/ of Procedure. Why? because on each occasion for the solution of each problem /of these subordinate problems/ some fresh step /fresh steps/ appears /presents itself/ as requisite to be taken and these on each such occasion different ones - to be taken by or on behalf of or at the instance of one or other party, in virtue of powers given by the legislator, by or under the authority of /from/ the Judge.
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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: [March 1804 Evidence Forthcomingness]Description: March 1804 Evidence Forthcomingness Ch. 2 Investigator Indicat Problem - a transaction of a given nature being supposed to have passed - and the whole or certain parts of it to have come under the cognizance of certain persons, though as yet unknown - in the character of percipient witnessess (whether the facts of which they have been respectively been percipient, belong (with reference to the principal fact sought) to the head of direct or circumstantial evidence - required to find out who those persons respectively are, and what are the parts of the transaction with reference to which, having been percipient witnesses, they are respectively capable of furnishing evidence in the character of deposing witnessess. Points for consideration, for the purpose of obtaining data for the solution of the above problem - 1. Physical relations. Questions suggested by the consideration of local circumstances: local situations of the supposed actors, in the supposed transaction, at the supposed time. What sort of place was the scene of it? Was it a private place? - an enclosed space - such as a house or a yard or a garden adjacent to the house. Who were the persons likely to have been present in the house? who was the principal occupier of the house? of what persons did his family consist? What other persons were likely to be present, either as inmates, or as occasional visitors? Was it a public place - a place open to all passengers? Who were the persons that at the time in question, were likely to have been passengers on the spot, or within sight or hearing of it?
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