30 Oct 1803

Evidence

Circumstantial

in general

On the occasion /In relation to subject/ of these several modifications of circumstantial evidence, two points /three questions/ require all along to be kept in view[?] .

1. what the fact is /is the nature of/ which is regarded in the character of an evidentiary 2. what each species of evidence is in itself: what the sort of fact /fact/ is, in relation to which it is in the nature for[?] it /the evidentiary fact/ to operate as evidence: and what the circumstances are, if any, by the introduction of which the operating of it in that character may be rendered inconclusive.

Note

The division into physical evidence /if at all/ (understand circumstantial evidence) and psychological is an exhaustive one: in one branch or the other may be included every possible modification of circumstantial evidence. Portions /Divisions/ thus extensive[?] are two extensive, both of them, to apply exclusively to any species of legally-important fact: The point of view /character/ in which they are here mentioned is accordingly that of so many reservoirs or fountain heads[?] up to from which all modifications applying to any particular [...?] /species/of legally important facts may be traced. Under these three /two/ articles /heads/ there will accordingly be no mention made /room for any/ of the species of fact: but after these the designation of the species of fact evidenced will be a constant [...?] to /accompaniment of/ the each modification of circumstantial evidence.

The same observations may be extended /applied/ to the two next heads with little difference. Under /To one or other of the two first heads may be ranked /referred/ all circumstantial /real/ evidence in the case where it is brought forward in affirmance of a fact fact undertaken /endeavoured/ to be proved: under one or other of the two next all circumstantial evidence in the case when it is brought to view in disaffirmance of a fact affirmed and evidenced, i.e.[?]: endeavoured to be proved on the other side. Flor it is only by reference to other facts that the improbability or impossibility by which is meant nothing more than improbability in the highest conceivable degree can be proved: the expression by which it is spoken of as if it were an absolute property, residing completely and exclusively in the improbable fact itself, may be received for the convention of discourse, but would lead to confusion and error, if taken for a correct representation of the nature of the case.