11 Sept 1803

Evidence

Ch. [...?]

Instructions

Considerations in terminis [?]

[...?] Improbabilities

C Considerations proper to be borne in mind in judging of the weight of evidence

the cause of distrust /suspicion/ - Improbability of the fact deposed to.

The improbability of a fact in itself may be considered as a sort of counter-testimony - a sort of circumstantial evidence operating in contradiction to any direct evidence by which the fact in question would otherwise be considered as proved.

The improbability of a fact may rise to such a degree as to render it absolutely incredible, incapable of being proved to the satisfaction of him who thinks of it, if not by any evidence, at least by any such evidence, as is actually adduced in proof of it.

If the inference drawn from the improbability of the fact, viz: that it is not true be just: i:e: if notwithstanding the evidence /testimony/ by which the existence /truth/ of it is asserted it really was not true the fault must lie either in the inferences deduced from the testimony or in the testimony itself. If the testimony itself was to such a degree positive as to assert the existence of the matter of fact in question in direct term, then the fault can not lie in the inference deduced from the testimony by the Judge but must be in the testimony itself. The testimony must have either incompleat or false or both: though if as above it were to a certain degree positive, as above, there may be no room for charging it with being incompleat, and if the fact so asserted be false, the testimony by which the existence /reality/ of it was asserted must necessarily have been in some circumstance or other false. But as an assertion made by a man may be false without his being conscious of its being so, such falsity is not of itself proof of perjury. /may very well have place without perjury./