date

4 July 1812 Evidence Introd
4 July 1812

Evidence Introd

Introd

Ch. 23. Technically appropriate

'.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.
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  • Title: [27 Sept 1803[?] Evidence Circumstantial]
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    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.
  • Title: [18 Nov 1804 Evidence Circumstantial]
    Description: 18 Nov 1804

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    5. Do not, from the observation of the non-existence of any direct evidence on either side, consider the body of evidence on that side (it being composed exclusively of circumstantial) as insufficient to warrant a decision on that side Consider how many sorts of facts there are which are every day proved to general satisfaction, although in their nature such that direct evidence in proof of them is seldom if ever[?] to be observed /adduced/.

    6. Do not, in consideration of the strength of the body of direct evidence adduced in proof of a fact, regard the production of circumstantial evidence as useless on that side, or unavailing on the other.

    7. Where from the same source, viz: the testimony of the same person from which you have circumstantial evidence of the testimonial kind - viz. of that sort which consists of general assertion - such as confession or accusation or assertion of right, in general terms - you can also have direct evidence, consisting in a circumstantiated relation or statement of the same fact, never[?] proved[?] upon the ground of the circumstantial alone, to the exclusion of the direct evidence.

    8. Never lose sight of the distinction between the question of admissibility and the question of conclusiveness, in regard to circumstantial, any more than in regard to direct evidence. Infer not of this or that article of evidence that because if admitted it would not be conclusive, therefore it ought not so much as to be admitted.

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  • Title: [18 Nov 1804 Evidence Circumstantial]
    Description: 18 Nov 1804

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    §. 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.