14 Nov 1804

Evidence

Circumstantial

Ch Supernatural

§ 4

§ 4. Parallel mode - decision on points foreign to the merits

One ground of decision there is which though perfectly natural - as natural in one sense as it is technical in another - is in another point of view exactly upon a level with the supernatural. I mean /This is/ the decision of a cause upon points foreign to the merits.

In an indictment for murder a clerk makes an omission: he drops the Devil or the value of the knife. The murder is put out of doubt in all its circumstances. Is the murderer guilty or no? The answer depends upon the materiality of the Devil and /or/ the knife. The Devil is he material? The omission of him is an exculpative fact disproving and that conclusively the existence of as many criminative facts ass have been proved. The evidence in this case - I mean the circumstantial evidence - is it of the Duel kind or the Ordeal kind? Answer. It depends upon circumstances. Was the Clerk [...?] for the omission? it is of the Ordeal kind Did he make it inadvertently and without a fee? It is of the Duel kind. It is upon a par with the duel: with the duel fairly fought. (In either case a connection is assumed between two facts between which there is none.)

In the detail[?] the cases in which the want[?] of a cause is made to turn upon points foreign to the merits belong not to this place. They will find their place in the rationale of procedure.