3 Sept 1812

Evidence Introd

Ch 12 Circumstantial

Out of the same hands has nay attempt been made to take the charge of drawing the influence form circumstantial evidence? avowedly, in the lump, that is in all cases and under that name, no: on the contrary, there being few causes in which the nature of the case does not present the two species of evidence in a state of the most intimate union, so it is that the circumstantial evidence is judged of by them as of course along with the direct; nor, for any such purpose, as that of dividing the cognizance between the Jurybox and the Bench, is any distinction made.

At the same time, so it is, that as often as evidence of the circumstantial kind has presented itself, the business of drawing the inference from it has, as often as such has been his pleasure been, by the Judge, taken out of the hands of the Jury, and, under the name of matter of law taken into his own hands; and this with such effect, as in and by so doing to determine the fate of the suit or cause.

Between the cases in which the drawing the inference from circumstantial evidence is proper to be left to the Jury, and the cases in which it is proper for it thus to be taken out of their hands by the Judge, has any line been ever attempted to be drawn? - Not any propriety out of the question, could any line be drawn, distinguishing with any tolerable clearness the cases in which the one course has been taken from the cases in which the other course has been taken, in actual practice? - Impossible, - What then is the result? - that in this as in so many other cases, arbitrary will, to say no worse, has been the only guide.