048-144.xml

Title: [16 Sept 1804 Evidence Circumstantial]

Description: 16 Sept 1804

Evidence

Circumstantial

Ch. Failure Causes

§.2. Generalia

§.2.

In the instance of each of the above modifications of circumstantial evidence, we have observed /thus much we can not but have observed, viz:/ that with reference to its correlative principal fact, it is attended /possessed/ with a degree though an unliquidated degree of probative force. We come now[?] to speak of the several infirmative facts, by the respective probability of which that force is, /in the instance of each such evidentiary fact, lessened./ weakened.

Though the expressions thus employed on the occasion of the operation in question - expressions employed for the purpose of giving to our conceptions that degree of clearness and precision of which they are susceptible, present probably an appearance of abstruseness, yet in the operation itself there is nothing that is not perfectly familiar and exemplified by almost every body in every day practice. What we have to do is no more than this: - viz: on the occasion of each species of evidence, to think of the several cases that may by possibility have taken place - cases in any one of which the conclusion we should at first view be disposed to draw from the evidence would be fallacious.

Of the several /aggregate mass of the/ supposed facts that are here brought to view under the relative character of infirmative facts, part has been suggested by actual history (histories of judicial decisions) other part by analogy and abstraction, working upon the stock thus furnished by experience or supposed experience. The several histories will either be quoted or referred to, in so far as the source has been noted down or can be recollected.

Where no such individual exemplification is exhibited, the addition of such individual exemplifications, such as the progress of time may happen to bring them into existence may be matter of amusement if not of profit to some future hand. By the help of this apparatus my endeavour will be to discover and bring to view such infirmative facts, such corrections to /preventatives of/ each conclusion, as my powers such as they are, are for the present able to reach. Whosoever shall endeavour and succeed in his endeavours to add to the catalogue, will render proportionable service to the interests of truth, humanity and justice. For in most of the instances delinquency is in some shape or other the ultimate principal fact. In these several[?] instances, the discovery of a fact, of a capable nature to speak in the character of an infirmative fact as[/] above described may operate in prevention of undue punishment - in preservation of innocence.

048-143.xml

Title: [16 Sept 1804 Evidence Circumstantial]

Description: 16 Sept 1804

Evidence

Circumstantial

Ch. Failure[?] Causes

(Another proposition, which will be sufficiently clear without the use /[...?] benefit/ of numerical cyphers, literal species, or diagrams, be[?] more[?] /no more/ clearer with than without them, and to a great majority considerably clearer without than with them, is - that) in a chain of circumstantial evidence, composed /consisting/ of a number /multitude/ of limbs, in each of which the probative force of the evidentiary fact is weakened by an infirmative fact, the force of the infirmative fact being in each the same in each the probative force of the immediate evidentiary fact with reference to the ultimate principal fact, will be less and less in proportion to the number of the links: - will be inversely[?] as the number of the links.

Hence whenever a chain of this sort presents itself to the Judge, it will be an exercise to him /an object a [...?] for his industry and discernment/ to make sure that there are no two links[?] between which any other link, with its attached apparatus of infirmative facts, can be interposed. Examples of trials[?] which were it not for this warning might be apt to be overlooked will meet us presently, /will presently come under review/;

048-114.xml

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.