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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.
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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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Title: [[048-179b] 25 Sept. 1804 Evidence]Description: [048-179b] 25 Sept. 1804 Evidence Note Circumstantial Ch. Failure Causes §. Delinquency. Clandestinity Disguise[?] - Search[?] [...?] (a) B. Of Circumstantial Evidence Ch. ( ). General View[?] §.1. The [...?] of circumstantial evidence presents itself as the first to be brought to view. - Why so? - Because this can /is may/ be /capable of being/ treated[?] of without the [...?] of any part of the matter contained in /under/ any of the other heads. None of them can be clearly or /and/ satisfactorily treated of without the introduction of more or less of the matter contained in this. The relations we have here to bring to view are no other than those /the relations/ which subsist[?] between fact and fact: between one fact considered as the principal fact - the fact to be proved or disproved, and another fact considered as evidentiary in relation to it - as applicable in the character of evidence to prove or to help prove the existence or non-existence of it. We shall not in this whole book, be imbarassed[?] by any of these doubts and difficulties which [.../] hover over human testimony /the expanse/. For the purpose of the inquiry /argument/ The existence of the evidentiary fact will be supposed to have been established, no matter how: and the question /consideration/ will be confined to the connection between that and the principal fact to the proof of which it is considered as applicable. Note Clandestinity of the act - Of this and the next[?] modification of voluntary deportment evidentiary /capable of affording circumstantial evidence/ of delinquency, viz: 2.[?] Forgery of real evidence: 3. Opposition to physical investigation. 4. Tampering with witnesses. 5. Latitantcy. 6. Substraction of property and other pledges of justiciability, and 7 Tampering with prosecutor, it is almost needless to observe that in several transactions the scene being out of court the evidence to the Judge will not present itself in the shape of immediate, but only in the shape of reported evidence. Consequently the evidentiary chain can not in one of these cases consist of any smaller number of links than five, nor of any smaller number of joints than four, exposed each of them to the infirmative force of its several infirmative facts, as above exhibited.
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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/;
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