048-121.xml

Title: [14 Nov 1804 Evidence Circumstantial]

Description: 14 Nov 1804

Evidence

Circumstantial

Ch Supernatural

§ 4

§ 4. Parallel mode - decision on points foreign to the merits

One ground of decision there is which though perfectly natural - as natural in one sense as it is technical in another - is in another point of view exactly upon a level with the supernatural. I mean /This is/ the decision of a cause upon points foreign to the merits.

In an indictment for murder a clerk makes an omission: he drops the Devil or the value of the knife. The murder is put out of doubt in all its circumstances. Is the murderer guilty or no? The answer depends upon the materiality of the Devil and /or/ the knife. The Devil is he material? The omission of him is an exculpative fact disproving and that conclusively the existence of as many criminative facts ass have been proved. The evidence in this case - I mean the circumstantial evidence - is it of the Duel kind or the Ordeal kind? Answer. It depends upon circumstances. Was the Clerk [...?] for the omission? it is of the Ordeal kind Did he make it inadvertently and without a fee? It is of the Duel kind. It is upon a par with the duel: with the duel fairly fought. (In either case a connection is assumed between two facts between which there is none.)

In the detail[?] the cases in which the want[?] of a cause is made to turn upon points foreign to the merits belong not to this place. They will find their place in the rationale of procedure.

048-001.xml

Title: [29 April 1803/ 13 Dec. 1808 Evidence]

Description: 29 April 1803/ 13 Dec. 1808

Evidence

Marg. Con B.I Ch.I

F Work that ---- with

Ch.2 Species and book on circumstantial

1. Facts considered in these ---- -- are expressed by words.

2. Ex gr. positive or other nature -- ----- - existence and non-existence

F 1. Facts 2. legally in operation or - material X not Y.

3. Physical or psychological

4. Individual x general

5. Susceptible of permanancy x unsusceptible of to = ------

6. Entities 1. Real x 2. Fictions - words not being names of real entities.

7. Fictions 1. of the first order

2. Motions. physical

2d of the 2d order - ------- 2. Relations including -----.

8. Facts 1. -----

2. Events -----

9. ----- 1. physical -----

2. Moral i.e. physical compounded with psychological

10. Acts 1. Transient 2. ----. See ---- chemical

11. Facts 1. principal 2. evidentiary

12. - principal 1. in penali. Inculpative &c 2. in non-penali - ----- &c

13. 1. simple 2. complex or aggregate which include the ---- -------

14. Fact x matter of fact = a simple fact or an aggregate of facts too multifarious to be demonstrated a fact. Matter of fact = matter of ----, of punishment, of reward.

15. Facts 1. individual x general

16. To individual belongs individuation - to general belongs classification.

FACTS 1

Evidence is relative and consists of facts - evidence of facts: viz: facts exhibited or brought into existence for the sake of proving the existence or non-existence of other facts. Legal evidence of facts considered in a legal point of view = facts legally ---- = material = operative p.1

2(a)

Fact and matter of fact p.1

3.

- for the purpose of grounding a decision to be made by a judge p.1

4.

Facts considered in a legal point of view are principal or evidentiary - This is an introd. ---- to proced.

Principal, what p.2

5.

Evidentiary, what p.2

6.

Principal legal facts admit of a particular description. Any fact may be an evidentiary legal fact. p.2

6(a)

To exhibit the connection between facts principal & evidentiary in all cases an almost endless task.

Reference to book on circumstantial evidence

Principal facts distinguished (as before).

Provable by

Plff Defd

In respect of punishment

1. Inculpative 1. Exculpative

or Criminative or justificative

2. aggravative 2. Exemptive

3. Extenuative

I In respect of the burthen of satisfaction.

1. partitive[?] 1. Exonerative

or -------

II. In respect of rights

1. Collative 1. Ablative

or ---titive or divestitive

FACTS

8. Direct evidence applies to the principal fact: circumstantial to an evidentiary fact p.4

9 Facts ordinary and scientific. p.4

10 Facts improperly distinguished, according to the propositions in which they are

1. positive /affirmative/ or negative p.4

11 - true and false p.4

11(a) Distinction in the Roman law between the fact of the offence (corpus delicti) & and the fact consisting of the personality of the offender p.4.

1 Requiring proof of the corpus delicti is tantamount to requiring real evidenvce in addition to personal.

2 Facts general & particular

3 ---tions of opinion included under the notion of facts. The ---- was the cause of the death

4 Any thing which in the subject of ----- may be termed a fact.

5 Facts are ------ by words - i.e. by terms. Individuation of

6 Facts Facts --- transient (most facts).

- 2.Continual ex gr. identity - local circumstances 3. ------- ---- ----- ---- = concealment

7. 1. Provable by direct evidence - ex gr. materially

2. not except by circumstantial evidence - positively

8 1. ----

2. content[?]

1. -----

2. General

*7 10 Principal fact 1. the aggregate 2. the component or ------ facts of which the aggregate is composed --- ------ ----- ----- is always -------.

F Before the distinction between principal and evidentiary, state that between permanent and ------ permanent appear most susceptible of permanence; ------, unsusceptibel of do.

I. Permanent

1. Relative ---- as between body & body

2. Continued forms, colours &c

3. Continued existence of any object

II Impermanent

1. ---- --- ----

2. Action

3. Past existence of any object

Facts considered without reference to law = not legally operative

2 - with reference to do = legally operative:

12 Fact x law

F Analyse ----- of ---- to shew the facts in it.

Facts psychological are

1. Consciousness with reference to this or that other fact -----

2. Intentionality with regard to acts and effects -----

3. Motives - obedience to this or that motive or mass of motives or preponderant mass or lot of motives.

Facts psychological

1. Individual (as above)

2. General (in point of time) as habits from --- ---- not ----- (---) dispositions (future provable facts) including affections, -----, virtues, vices &c.

13 Dec. 1808 distinctions in regard to facts.

1. 1 ----- x state of things. Events. 1. Acts: 2. Events at large

2. Facts positive or negative: positive existence of events &c. negative non-existence

1. Facts are positive or negative: positive existence; negative non-existence, of some entity.

2. ------ natural 2. ----: ---- correspond to to denominations[?]

3. ------- are 1. physical 2. psychological

4. Physical are 1. things or any -------

5. ------ ----- are 1. of the 1st order 1. states /-----/ of things 2. Events = -------

6. Events are 1. Acts (corporal) 2. ---- at large

7. 2. of the 2d order

1. ------

2. Relations

3. Qualities

048-092.xml

Title: [29 Aug 1804 Evidence Circumstantial]

Description: 29 Aug 1804

Evidence

Circumstantial

Ch.2

§.1.

There can be no circumstantial evidence without real evidence. But a lot of circumstantial evidence may either consist of a lot of real evidence alone, or of real evidence combined with personal[?]. If the source of real evidence in case of homicide for example, the [...?] dead body, or the supposed instruments of death be itself exhibited to the Judge, the circumstantial evidence consists in fact[?] /purely/ of purely real evidence. If, the source of evidence not being present to the sense of the Judge, his conception in relation to it, be /is/ derived from the report made to him of it by some /any/ other person, it may be termed reported real evidence - the lot of circumstantial evidence in question consists of reported real evidence.

Real evidence comes to /before/ the Judge much more frequently through the medium of a reporting witness /in the state of reported real evidence/, than in a pure state and without any such intervention as above described.

In all questions relative to the probative force of a lot of circumstantial evidence, if the state in which it comes before the Judge be that of reported real evidence, the truth of the testimony must provisionally be assumed. The truth of such testimony - the trustworthiness of such reporting witness will be matter of investigation and dispute like that of any other witness, whose evidence comes under the denomination of direct evidence with regard to the principal fact comes under the denomination /notion[?]/ of direct evidence. But the subject of any such dispute /discussion/ /the question relative to such trustworthiness/ will be altogether distinct from the discussion /question/ relative to the probative force of the probative fact, considered as constituting an article of circumstantial evidence. Suppose the trustworthiness of the witness objected to, the testimony /the evidence he gives/ is [...?] not in so far as it comes under the head of circumstantial evidence but so far as it comes under the head of direct evidence.