JB_045_606.xml

Title: [3 Sept. 1812 Evidence Introd]

Description: 3 Sept. 1812

Evidence Introd

Introd

Ch. 12 Circumstantial

'.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.

JB_045_604.xml

Title: [1 Sept. 1812 Evidence Introd]

Description: 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

JB_045_717.xml

Title: [4 July 1812 Evidence Introd]

Description: 4 July 1812

Evidence Introd

Introd

Ch. 23. Technically appropriate

'.1.

In this respect different in a considerable degree, it has already been seen is the nature of circumstantial evidence. In the case of this sort of evidence many and extensive are, it has been seen the instances in which one [...?] /[...?]/ sort of fact ground may be seen for inferring the existence or the non existence of another sort of fact.

Thus there was a species of evidence the decision of which was not in its own nature absolutely incapable of being taken into the hands of the Judges, accordingly taken with their insatiable /over-grasping/ and ever grasping hands it has been and to a vast and deplorable extent.

I say deplorable, and for this reason: viz. that assuredly in most instances, not in improbably in every instance without exception the conclusions thus drawn will in the general character this in every instance has been given to them, rash and untrue conclusions. Why? because the conclusion will in every instance be found liable to be weakened by facts, of the nature of informative facts as above explained, which facts have in the drawing of the inference been overlooked or neglected