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.