18 Nov 1804

Evidence

Circumstantial

Ch. Probative force

§.3 Warning[?]

§. Instructions (Monitory[?]) to the Judge in relation to circumstantial evidence.

A general view of the subject of circumstantial evidence has pointed out a number of errors, against which it may be of use that the Judge should be put upon his guard, by so many monitory[?] rules.

1. Do not in consideration of the weakness, much less of the mere[?] inconclusiveness of any fact in the character of an evidentiary fact, reject it altogether, so as to refuse to take it into consideration, or to give it a place in any account that may be taken of the items entering[?] into the composition of the body of evidence. Confound not the question of admissibility with the question of conclusiveness.

2. Much less[?] for inconclusiveness. - confound not the question of admissibility with the question of conclusiveness.

3. Do not, in contemplation /consideration/ of the separate slightness of the articles of which a body of circumstantial evidence is composed, treat[?] /consider/ the whole body as insufficient to constitute /warrant/ a just ground for a decision on that side.

4. Do not in consideration of the strong light that would have been thrown upon a cause by such or such an article of circumstantial evidence conclude without further reflection, that for want of such article the body of evidence must be treated as insufficient.

5. Do not, in consideration of the strength of any fact, in the character of an evidentiary fact, consider it as singly /separately/ conclusive: without other evidence on the same side, and without adverting to the infirmative[?] facts, by which the probative force of it is liable to be weakened. Consult upon occasion the table of Infirmative[?] facts.

6. Much less, hold yourself excused by it from listening to or looking out for counter-evidence.