If by means of this feature in this best of all as yet established

Governments, a degree of inaptitude, not to be matched perhaps in the

worst European Government in existence can be produced, some practiced

proof may perhaps be regarded as exhibited of the inutility, to say no

worse, of this part of the structure of the Government. In the

year 1802, the United States had a "public Minister" at Paris— at

the Court of Bonaparte— French is not only the language of that

Country, but the diplomatic language of Europe. This public Minister by

whom, not to speak of the expected intrigues, conferences were to be

carried on necessarily with the appropriate functionaries in that Country,

but incidentally with those of every other— who was he? A man

who could neither speak nor understand a word of French, and to whom

conversation, even in his own language, was rendered difficult by

deafness.

If at this or that Court, the Union has public Ministers of the same or

different ranks more than one, what might be expect is that at least

some one of them should be able to converse in French. This expectation

would not in every instance be fulfilled.

Under favour of the supposed utility of the second chamber, considered at a distance in a Monarchico-Aristocracy, a second chamber, the members of which are in for life, and not dislocable by the people, nor in any way whatever dependent upon the people, comes in for a share of the favour, and by the hands of the admirers of the more popular Government, loaded with the second chamber, is recognized as possessing a feature of kin to their own.

Addendum 1824 June 23. to list of Evils Waste of time, to wit by the delivery of two sets of arguments, one in one House, the other in the other: and both sets almost sure to be incomplete: this is insufficiency included with redundancy.

Under favour of the supposed utility of the second chamber, considered at a

distance in a Monarchico-Aristocracy, a second chamber, the members of

which are in for life, and not dislocable by the people, nor in any way

whatever dependent upon the people, comes in for a share of the

favour, and by the hands of the admirers of the more popular Government,

loaded with the second chamber, is recognized as possessing a feature

of kin to their own.

Addendum 1824 June 23. to list of Evils Waste of time, to wit by the

delivery of two sets of arguments, one in one House, the other in the

other: and both sets almost sure to be incomplete: this is insufficiency

included with redundancy.

29 April 1803/ 13 Dec. 1808

Evidence

Marg. Con B.I Ch.I

F Work that ---- with

Ch.2 Species and book on circumstantial

1. Facts considered in these ---- -- are expressed by words.

2. Ex gr. positive or other nature -- ----- - existence and non-existence

F 1. Facts 2. legally in operation or - material X not Y.

3. Physical or psychological

4. Individual x general

5. Susceptible of permanancy x unsusceptible of to = ------

6. Entities 1. Real x 2. Fictions - words not being names of real entities.

7. Fictions 1. of the first order

2. Motions. physical

2d of the 2d order - ------- 2. Relations including -----.

8. Facts 1. -----

2. Events -----

9. ----- 1. physical -----

2. Moral i.e. physical compounded with psychological

10. Acts 1. Transient 2. ----. See ---- chemical

11. Facts 1. principal 2. evidentiary

12. - principal 1. in penali. Inculpative &c 2. in non-penali - ----- &c

13. 1. simple 2. complex or aggregate which include the ---- -------

14. Fact x matter of fact = a simple fact or an aggregate of facts too multifarious to be demonstrated a fact. Matter of fact = matter of ----, of punishment, of reward.

15. Facts 1. individual x general

16. To individual belongs individuation - to general belongs classification.

FACTS 1

Evidence is relative and consists of facts - evidence of facts: viz: facts exhibited or brought into existence for the sake of proving the existence or non-existence of other facts. Legal evidence of facts considered in a legal point of view = facts legally ---- = material = operative p.1

2(a)

Fact and matter of fact p.1

3.

- for the purpose of grounding a decision to be made by a judge p.1

4.

Facts considered in a legal point of view are principal or evidentiary - This is an introd. ---- to proced.

Principal, what p.2

5.

Evidentiary, what p.2

6.

Principal legal facts admit of a particular description. Any fact may be an evidentiary legal fact. p.2

6(a)

To exhibit the connection between facts principal & evidentiary in all cases an almost endless task.

Reference to book on circumstantial evidence

Principal facts distinguished (as before).

Provable by

Plff Defd

In respect of punishment

1. Inculpative 1. Exculpative

or Criminative or justificative

2. aggravative 2. Exemptive

3. Extenuative

I In respect of the burthen of satisfaction.

1. partitive[?] 1. Exonerative

or -------

II. In respect of rights

1. Collative 1. Ablative

or ---titive or divestitive

FACTS

8. Direct evidence applies to the principal fact: circumstantial to an evidentiary fact p.4

9 Facts ordinary and scientific. p.4

10 Facts improperly distinguished, according to the propositions in which they are

1. positive /affirmative/ or negative p.4

11 - true and false p.4

11(a) Distinction in the Roman law between the fact of the offence (corpus delicti) & and the fact consisting of the personality of the offender p.4.

1 Requiring proof of the corpus delicti is tantamount to requiring real evidenvce in addition to personal.

2 Facts general & particular

3 ---tions of opinion included under the notion of facts. The ---- was the cause of the death

4 Any thing which in the subject of ----- may be termed a fact.

5 Facts are ------ by words - i.e. by terms. Individuation of

6 Facts Facts --- transient (most facts).

- 2.Continual ex gr. identity - local circumstances 3. ------- ---- ----- ---- = concealment

7. 1. Provable by direct evidence - ex gr. materially

2. not except by circumstantial evidence - positively

8 1. ----

2. content[?]

1. -----

2. General

*7 10 Principal fact 1. the aggregate 2. the component or ------ facts of which the aggregate is composed --- ------ ----- ----- is always -------.

F Before the distinction between principal and evidentiary, state that between permanent and ------ permanent appear most susceptible of permanence; ------, unsusceptibel of do.

I. Permanent

1. Relative ---- as between body & body

2. Continued forms, colours &c

3. Continued existence of any object

II Impermanent

1. ---- --- ----

2. Action

3. Past existence of any object

Facts considered without reference to law = not legally operative

2 - with reference to do = legally operative:

12 Fact x law

F Analyse ----- of ---- to shew the facts in it.

Facts psychological are

1. Consciousness with reference to this or that other fact -----

2. Intentionality with regard to acts and effects -----

3. Motives - obedience to this or that motive or mass of motives or preponderant mass or lot of motives.

Facts psychological

1. Individual (as above)

2. General (in point of time) as habits from --- ---- not ----- (---) dispositions (future provable facts) including affections, -----, virtues, vices &c.

13 Dec. 1808 distinctions in regard to facts.

1. 1 ----- x state of things. Events. 1. Acts: 2. Events at large

2. Facts positive or negative: positive existence of events &c. negative non-existence

1. Facts are positive or negative: positive existence; negative non-existence, of some entity.

2. ------ natural 2. ----: ---- correspond to to denominations[?]

3. ------- are 1. physical 2. psychological

4. Physical are 1. things or any -------

5. ------ ----- are 1. of the 1st order 1. states /-----/ of things 2. Events = -------

6. Events are 1. Acts (corporal) 2. ---- at large

7. 2. of the 2d order

1. ------

2. Relations

3. Qualities

25 Aug 1804

Evidence

Circumstantial

Ch.1.

§.1 Circumstantial

 Insert this in text or note? at length or in abridgment?

Book the 1. Of Circumstantial Evidence

Ch. 1. Practical uses and order of the contents of this Book.

§§.1. Precedence why given to the topic of circumstantial Evidence.

We now enter upon the examination of the different species[?] of evidence.

On the fact of the term circumstantial, when compared with the correspondent term direct from which it is distinguished and to which consequently it is opposed, viz: direct - it[?] may naturally enough occurr, that it is to direct and not to circumstantial evidence, that priority of consideration is due. Circumstantial (it may occurr) /be said/ is not the principal, the most satisfactory species[?] of evidence. it is a sort of[?] irregular [...?] makeshift species, admissible no otherwise than as a corroborative /help-mate/, or at most, only as a substitute, to direct evidence. Say to us therefore in the first place what you have to say on the subject of direct evidence: that done, it is then that circumstantial evidence will find its proper place.

I answer - what is above, is in good measure /a certain sense/ true: yet notwithstanding which I give the priority to circumstantial evidence, and that for a very simple reason and which I expect to find a satisfactory one. Questions relative to circumstantial evidence may be treated. The notion[?] /Every thing/ that belongs to of[?] circumstantial evidence may be fully explained /discussed/ without entering into the previous consideration of any other topic belonging to the field of evidence /the precognition of any thing belonging to any other topic of the field/; and in particular without regard to the consideration of personal trustworthiness or untrustworthiness /regard due to his or that species of evidence/ or the propriety or impropriety of exclusions on that ground. None of these topics can well be [...?] /explained/ without /without/ involving a [...?] of institutions[?] the[?] progression of a [...?] of particular belonging to the formal[?] [...?].

29 Aug 1804

Evidence

Circumstantial

Ch.1.

§.1.

Circumstantial

force

Throughout the present book, either human testimony will not have come in question at all, or the trustworthiness of it, or at least the propriety of admitting it, for the purpose of inquiry, will have been assumed: the topics of trustworthiness and admissibility being reserved for separate consideration in their respective places. The relations here upon the carpet will accordingly be not the relation between fact and human testimony affirming the existence or non-existence of such fact - but between a fact supposed to be proved (an evidentary fact), and another fact (the principal fact) considered as capable of being proved or disproved by such evidentary fact: not the relation between the existence of testimony, and the existence of a fact of another sort - the fact affirmed or disaffirmed by such testimony; but the relation between one fact and another fact: between a fact the existence of which is supposed to be established by human testimony or otherwise, and another fact the existence of which is considered as being proved or disproved by it.

We shall not therefore in the whole course of this book, be embarrassed by /with/ any of those doubts and difficulties which hover over the field of human testimony. For the purpose of the enquiry, the existence of the evidentary fact will be supposed to be established, no matter how: and the /our/ consideration will be confined to the connection between that fact and the principal fact, to the proof or disproof of which it is considered as applicable. The greater[?] the subject of the question /All along the subject of consideration/ is - not the truth of the evidentary fact - but the nature and strength of the connection or relation between that and the other fact - the principal fact.

 Under the heads of false responsion, false suggestion we show that this is true even in those instances.

29 Aug 1804

Evidence

Circumstantial

Ch. 1 Gen. [...?]

§§.2. Practical use

§§.2. Practical uses of the dispositions, relative to circumstantial evidence

Speculative discussions, which lead to no practical conclusion may truly be said to be of no use /termed useless/: suppose them useless, the time and labour consumed /employed/ about them, as well in the character of the writer[?], as in that of a reader, are[?] so much value thrown away. Among the ensuing discussions, there are several to the close conception of which no inconsiderable portion /[...?]/ of attention may be found necessary. For on this subject much indistinctness having hitherto provided[?] /obtained/ in mens /the current/ ideas and consequently in their /the current/ language, or /and/ é converso in language, and consequently in their ideas, the demand for the /and utility of the/ practical measures recommended could not have been understood without a considerable quantity of speculative matter in the form of definition, distinction and other modes of explanation.

Aug 1804

Evidence

Circumstantial

Ch. 1. [...?]

§.2. [...?]

Throughout the compass of this /the present/ work, the object of it is to serve as a guide, by the light of whatever sparks of reason it may be found to contain /may be found in it/, to the legislator, and, through him, to the Judge. From his superior, the legislator, the Judge is capable of receiving direction in two ways: by instruction, and by regulation: by instruction, proceeding from understanding to understanding, leaving will and action free[?]. by regulation, the act of will addressed to will, seeking as far as it extents[?] to extinguish liberty, and thereby rendering judgment useless.

Looking to practice, in the way /line/ of instruction, here as in every other quarter of the field of evidence, we shall see industry /exertion/ at work, and though not so copiously at work as in several /[...?]/ other quarters, yet at any rate doing, and by the amount of the whole, doing too much. [at work.]

In regard to regulation, the business of this book will be to show, that whatever has been done on this ground by the legislator, and probably whatever else can be done, is worse than useless. In regard to instruction, the business will be to show[?], that a good deal /much/ may be done, all which, so far as is true and rational, can not but be of use. But to show what instruction might be and ought to be given, is, pro tanto to give it. Whatsoever therefore is found to belong to that head, may be considered as constituting as far as it goes a specimen of a code of Instructions, proposed to be given by the legislator to the Judge.

31 Aug 1804

Evidence

Circumstantial

Ch. 1. General[?]

§.3. Order [...?]

§3. Order of enquiry.

The course pursued by /order observed in/ the disquisitions contained in the present book will be found to be [...?] as follows -

1. To exhibit some general explanations of relation to the nature of this class of /circumstantial/ evidence -

2. To give a catalogue, the more ample the better /as ample as possible/ of such tools[?] /species/ of evidence referable to this class as appear alike applicable to an extensive class of causes: leaving as an endless task /labour/, the task of giving /exhibiting/ the whole mass of circumstantial evidence capable of applying to this or that particular species of cause.

3. In describing, as far as appears necessary, the nature and characteristic properties of each such species of circumstantial evidence, to show in what manner it may contribute to satisfy the mind[?] concerning the existence or non-existence of the principal fact (the fact supposed to be evidenced) to which it applies.

4. To show at the same time the cases in which, and thereby sometimes the causes from which, its probative force is liable to fail: - the cases and causes of its failing to be conclusive.

25 Aug 1804

Procedure

Circumstantial

Ch.1.

§.2. Practical use

What has been said of the legislator - meaning the regular, acknowledged, official legislator - is applicable with no less propriety to his (subordinate and) customary though as will be seen deplorably inadequate substitute the Judge: I mean, in so far as by virtue of the rule stare decisis[?] it happens to him to be[?] the law to his colleagues and successors in office as well as to himself on all subsequent occasions: to set the law to them, in virtue of the obligation which he is understood to impose upon them - the obligation of framing out of the particular decision [...?] by him in the past individual case, a general rule, which as effectually and in the same manner as if it had been laid down by the official legislator, shall bind them to give the like decision in all such future individual cases as shall come to be looked upon as being comprehended in that rule.

Elsewhere there will be occasion to show at large, how inadequate the work of this spurious[?] sort of legislator is in the character of a substitute to the work of the genuine legislator. And in the course of these sheets it will appear - that on the whole expanse of the field of evidence the genuine legislator has been more than ordinarily negligent and inactive, the spurious one more than ordinarily enterprising and active.