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24 July 1812
Evidence Introd.
Introd
Ch. 26
To form a good circumstance evidence two circumstances at least one necessary: but by these rules one is regarded as sufficient
The practice of considering, and on such slender ground as just mentioned, a fact belonging to an individual transaction as being of itself probative or disprobative of a fact belonging to another individual transaction shall have no connection with it stands exposed /has to encroach/ to this [...?] In every instance without exception either it is deceptitious or mindless: mindless to such a degree as to be migatory and ridiculous.
Of a general rule constructed for this purpose the effect if any effect follows from it that would not follow without it, will frequently be, the pronouncing as true fact which by all persons to whom the transaction is known will be seen plainly to be false or vice versa.
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Title: [24 July 1812 Introd Ch. 26]Description: 24 July 1812 Introd Ch. 26 In each of these instances are /is/ seen to the exclusion of the Jury, a Judge or a Bench of Judges taking upon themselves commonly a single Judge taking upon himself to decide upon a question of fact on the ground of some single article or other of circumstantial evidence: and out of /from the individual/ the decision pronounced thereupon in each individual case, by the customary process of abstraction a general rule drawn which any subsequent /other/ individual suit or cause, the Judge upon or without its being quoted to him by an Advocate takes into consideration, and on the occasion of such [...?] individual suit or cause, if it happens to suit his purpose holds himself bound by it, and gives to it the effect of determining /[...?]//presenting/ the decision respecting the second individual fact, and thereby of deciding the fate of the second individual suit or cause. Of this mode of judging behold the nature and effect. With relation to a fact a matter of fact constituting on the occasion of the individual suit as cause in hand the principle fact is a principle fact, a fact that had place in the occasion of a [...?] action /an individual/ altogether different /irrelevant/ bearing no manner of relation to it a transaction which had place a hundred years before, and concerning which some one matter of fact and no more has been correctly or incorrectly transmitted to us, is viewed in the light of an evidentiary fact, and with relation /reference/ to the existence or non existence of such /this/ principal fact the probative force of it is considered as conclusive.
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Title: [24 July 1812 Evidence Introd]Description: 24 July 1812 Evidence Introd Introd Ch. 26 Against this mode of judging /[...?] of judicature/ there are two objections present themselves: one drawn from the nature of things, and independent of all local institutions: the other peculiar to England, and grounded in the use of the distinguished /distinguishing/ features of the English Constitution: viz. that which respects /[...?]/ the power and functions and power of a Jury. 1. The objection of an universal nature is this - viz. that for the determination of a question of fact, depending as all question of fact do, (especially in so far as circumstantial evidence, upon an indefinite number of circumstances, such as are never in any two individual transactions exactly the same - it is absurd to take from any individual transaction any individual fact or circumstance, and in the character of a conclusively probative evidentiary fact, consider it as, it conclusively probative of the existence or non-existence of another fact: altogether unconsidered with it, otherwise than by the capacity of being designated by the same general words, thereby putting a sweeping exclusion upon all evidence on the other side, whatsoever might have been its probative force. For as the anterior of the two occasions let the inferior drawn from the existence of the evidentiary fact to that of the principal fact which on that individual occasion was a question /dispute/ have been ever so just and rational, fact which on the posterior occasion comes a question it shall be equally just and rational? On the contrary, nothing can be more absurd. For the two individual transactions what have they in common? nothing but the capacity of being designated by one and the same assemblage of general words distinct to any amount in the two several fields of space and time as likewise in respect of all the several individual persons and things concerning them.
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Title: [3 July 1812 Evidence Introd]Description: 3 July 1812 Evidence Introd Introd Ch. 23. Technically appropriate In the instance of all these several topics, so extensive is the field to which they every one of them have application, scarce any need or occasion has there been /small indeed has been the occasion which there has been/ to make any particular species of fact in the character of the subject matter of the evidence: and where there has, extensive to a prodigious degree of amplitude has been the species of fact thus brought to view. Under the head of circumstantial evidence for example 1. any matter of fact whatever belonging to the class of physical facts - 2. any matter of fact whatever belonging to the class of psychological facts. 3. On the occasion of a series of [...?] action directed to any one common end, among the matters of fact to which such series of action have given birth any which occupying in the order of time a station anterior to this or that other matter of fact considered as evidentiary of it; and vice versa. 4. human delinquency, in whatsoever shape manifested or operating: 5. on the occasion of a script exhibited in the character either of an instrument of contract or a script at large, the genuineness or spuriousness of the script. Such in every instance is the amplitude, the prodigious amplitude of the only species of facts which in the occasion /in the course/ of a work having for its subject evidence in general or legally operative evidence in general it seemed necessary or proper to bring to view.
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