date

1 Sept. 1812 Evidence Introd
1 Sept. 1812

Evidence Introd

Introd

Ch 12. circumstantial

'.11.

Having constructed this palladium: - as it has been so often called - of the constitution, viz the jury box, - the same combination of indiscernible causes, left, above and in contact with this palladium, a set of cases whose obvious interest, and consequently whose endeavour, it has been, to weaken and undermine it.

From the very first, - and, as will be seen, not altogether without just cause, - they took upon themselves - those experienced and learned Judges - to determine what evidence should, and what should not, be presented to the cognizance of these their inexperienced and unlearned assessors: but, the evidence once presented to them, by those inexperienced and unlearned assessors it was that the Judgement on it came to be formed and pronounced.

Once presented to them [...?] - good. - But, this or that lot of evidence suppose it not presented to them by these their Directors - what then became of it? - Answer - it was decided - and with it commonly the fate of the whole cause determined - by these their Directors themselves: - with what consistency, as well as with what fruit, will be seen as we advance

All evidence is either direct or circumstantial evidence. From any evidence. From any evidence that comes under the denomination of direct, it appears not that, on any occasion, they have as yet taken upon themselves to deduce the inference. On the contrary, so abundant are the instances in which speaking of Evidence in general, the acknowledgement has been made to Juries, that to them and them alone it belongs, to say what credit is due to the evidence, whatever it has been that they have been permitted to hear, and thereupon to deduce the inference from it, that the [...?] or usurpation[?] is universally [...?] ready to fall, in the character of an inevitable punishment, in the hand of every Judge who should take it upon him to attempt the depriving them of this function - this inestimable right - without which their office would be no better than a pernicious sinecure. In regard to circumstantial evidence, the question has never yet been stated - nor, if it were, does it seem possible to find any rational answer to it, why, in this instance any more than in that other, any attempt should be made to take the decision out of those popular hands, by which, in the sort of compound judicatory in question, without a shadow of objection and amidst universal plaudits every question in so far as it turns upon direct evidence is determined
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  • Title: [3 Sept 1812 Evidence Introd]
    Description: 3 Sept 1812

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    Ch 12 Circumstantial

    Out of the same hands has nay attempt been made to take the charge of drawing the influence form circumstantial evidence? avowedly, in the lump, that is in all cases and under that name, no: on the contrary, there being few causes in which the nature of the case does not present the two species of evidence in a state of the most intimate union, so it is that the circumstantial evidence is judged of by them as of course along with the direct; nor, for any such purpose, as that of dividing the cognizance between the Jurybox and the Bench, is any distinction made.

    At the same time, so it is, that as often as evidence of the circumstantial kind has presented itself, the business of drawing the inference from it has, as often as such has been his pleasure been, by the Judge, taken out of the hands of the Jury, and, under the name of matter of law taken into his own hands; and this with such effect, as in and by so doing to determine the fate of the suit or cause.

    Between the cases in which the drawing the inference from circumstantial evidence is proper to be left to the Jury, and the cases in which it is proper for it thus to be taken out of their hands by the Judge, has any line been ever attempted to be drawn? - Not any propriety out of the question, could any line be drawn, distinguishing with any tolerable clearness the cases in which the one course has been taken from the cases in which the other course has been taken, in actual practice? - Impossible, - What then is the result? - that in this as in so many other cases, arbitrary will, to say no worse, has been the only guide.
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    '.11

    By this sort of assumption what have been the effects produced on the administration of justice?

    1. In each cause taken by itself, has the probability of right decision received any increase? - does any sufficient reason appear, for concluding that the inference thus drawn by the Judge was more rational than that which, in that same case, would have been drawn by the Jury? - On the contrary? when the inferences thus drawn come to be looked at, so flagrant will their absurdity and folly be frequently - not to say most frequently seem to be, as to preclude the idea that nay inference so absurd and foolish could have been drawn by any understanding, not corrupted by that species of half-absurdity half-nonsense, what among lawyers has received the name of science: and and it is under the assurance, that, under the guidance of common sense, no such inference would be drawn by the twelve unlearned men whom he has had to deal with, that the judge has thus taken the business upon himself: - Under that assurance? Yes: - and for that very reason: for on the supposition of an expectation on his part, that the inference, and from the inference the decision formed, would have been the same as that which it was his desire to see formed, use there would be time, even with reference to his own purposes in his thus taking it out of their hands.

    1. Mischief the first - Producing misdecision in each particular cause, on the occasion of which the assumption in question has been made - the incongruous power exercised.
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    '.1.

    Thus if it be not /where it has not been/ upon the point /matter/ of law, it is upon the effect of some acknowledged fact in the character of an evidentiary fact with relation /regard/ to some assignable fact in the character of a principal fact in a /and this/ word in the character of an article of circumstantial evidence that the question has turned on the occasion of every decision of which under the head /part//division/ in question mention has been made will be found manifest by /appear plain enough it is supposed to/ every lawyer by whom the contents of it are looked over in this view.

    The cause of this distinction will also it is supposed be sufficiently apparent: of this distinction that is of those reasons a not entering upon them to pronounce on /say what ought be/ the effect of /in which of/ direct evidence, coupled with their obtrusion /intrusion/ in taking upon them to say what ought to be and thence what shall be the effect of an article of circumstantial evidence.

    To say what ought to be to the effect of an article of direct evidence - of the testimony of a witness would be to decide upon the probative force of the evidence delivered by that same witness. But in every /each/ instance this question is altogether of an individual nature: the decision pronounced upon it incapable of serving as a rule or a guidance in any other individual case - altogether incapable of serving in the character of a general rule incapable therefore so long as any power at all was left to Jury, incapable of furnishing any the least shadow of a pretext for taking the question into the hands of a Judge.