5 Sept 1804

Evidence

Circumstantial

Ch General View

§.2

By the very import of the term, precedential evidence has a natural, and prima facie an irrecusable, claim to precedence. But although with reference to the time of the fact said /supposed/ to be evidenced, a fact of the class /here referred/ of precedential facts is in every instance precedent, yet the time at which it comes to be given in evidence - presented to the consideration of the Judge, is always posterior to that same point of time. On that (same) occasion, whatever facts of the precedential class come to be brought to view, are indiscriminably mixed with evidentiary facts of the other two classes /descriptions/ concomitant and subsequential: Even acts of the same denomination may, in many if not most instances come to be performed on the same occasion in the same view, at either or both these periods. Then /If/ of a subsequential nature, notice could not therefore but have been taken under the head of precedential facts, had that head occupied the foremost place. To the head of precedential it seemed better therefore to confine the mention of such circumstances (viz: preparations[?], declarations of intention, and threats) as by their nature stand excluded from the capacity of coming into existence at any other period. But of these especially the two first it may be observed that they are alike applicable to principal acts of any description as to such as being marked with the characters of delinquency belong exclusively to the head of penal law. It would therefore have disturbed the regularity of our[?] inquiry /progress of the inquiry/ to have begun with a class thus extensive, proceeded immediately to one so much narrower, and after this momentary contraction to have reverted again to a more expanded scale.