18 Nov 1804

Evidence

Circumstantial

Ch Probative force

§ Warning[?]

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.

These cautions /The above/, in proportion as they appear reasonable, will be apt to appear needless. Turn to practice, shall find them far from being in that case.