29 Aug 1804
Evidence
Circumstantial
Ch.1
§.2. Practical use
As to the question why the legislator does wrong by busying himself on this ground it is, in its conception at least, extremely simple. Data[?] important to warrant on his part a determination to any such effect, cannot, in the nature of the case, be present to his mind. The collection of them can never be complete and adequate, without the addition of such others as can not be present to any mind but that of the Judge, and such others, to whom the same opportunities may have happened to present themselves.
(The strength of the connection between the principal fact or facts on the one hand and the evidentary fact or facts on the other hand are susceptible (as will appear more and more clearly as we advance) of an infinite number of degrees:) in other words the probative force of the evidentary fact or facts is susceptible of an infinite variety of degrees: and although it should for argument sake be supposed to have been settled, what degree of probative force is sufficient to warrant decision in favour of the one or the other party in each species of cause, yet in no given individual cause of any species would it be possible so to describe the mass of circumstantial evidence exhibited in that cause, and deemed of the requisite force, as to frame by abstraction, out of that individual mass of circumstantial evidence so deemed sufficient, any general rule capable of indicating the sufficiency or insufficiency of the mass of circumstantial evidence afforded by any other individual cause.
31 Aug 1804
Evidence
Circumstantial
§.2. Practical use
Not that in the instance of each individual cause, the mass of evidence, though it be all of it of the nature of circumstantial evidence is the less sufficient and trustworthy for the purpose of that individual cause. All that is contended for, is - that the evidence in one cause can not be so described as that the evidence in another cause shall be seen to possess the same degree of force. What is meant is - not to dispute or cast doubts over the propriety of the conclusion - of the decision grounded on evidence of this sort - in any one individual cause - but only to establish in all causes the impropriety of general and obligatory rules, deduced from any individual case of prior occurrence.
Not but that cases may be adduced, in which a rule of the description in question, having previously been established, may be applied to this or that individual cause without any prejudice to justice. But in these cases in proportion it [...?] is clear [...?] in regard to any such general rule that it can not be pernicious, it will be equally clear, that neither can it be of any use.
Aug 1804
Evidence
Circumstantial
Ch.2. Circumstantial [...?]
§.1. [...?] [...?] [...?]
In the case of circumstantial evidence there are always two facts to be considered: 1. the principal fact /the factum probandum or[?] problematical/, the fact the existence of which is supposed or proposed to be proved or - to be evidenced: which is the subject of proof; 2 the evidentiary fact - the fact /the factum probans/ from which the existence of the principal fact is or may be inferred.
The factum probandum may in any case be either of /is susceptible of two main distinctions: it may be or[?] it must be either of/ a physical nature, or of a psychological nature.
In all cases of a penal nature, (high enough in rank to be reputed criminal,) certain facts of a psychological nature are necessary to constitute the crime[?]: these are 1. criminative intentionality and 2. criminative consciousness: and in many cases supposing criminative intentionality and consciousness ascertained the mischievousness of the act will be liable to be modified by the nature of the motive or motives which give birth to it.
In all these cases the principal fact will therefore /accordingly/ be of a complex nature. Its ingredients will be /The existence, or in some cases the non-existence/ of some physical act or acts, together with the addition of /in conjunction with/ the psychological facts just mentioned.
27 Aug 1804
Evidence
Circumstantial
Ch.2
§.1. [...?] [...?]
It is among the properties of psychological facts, as such not to be made /make themselves/ known, evidenced, but through /otherwise than/ through the medium of some physical fact. What I myself /you yourself/ intend - what I am /you are/ conscious of - by what motives my intention has on this or that occasion been produced - all these facts, being facts the existence of which is confined within my own breast, can not in the way of immediate perception be known to anybody but myself: if /to you/ they are made known to you in any way, it can only be by means of some physical fact or facts, the perception of which has made its way into your mind through the medium of some one or more of your corporal[?] senses.
Such then is the importance of circumstantial evidence. In the most important class of cases it is so necessary /indispensable/, that without it all the direct evidence imaginable would be unavailing. In vain would it be ascertained /established/ that the hand of Titius had given motion to the hatchet from whence Sempronius[?] received his death, unless it were also ascertained, that death or at least the affliction /wound/ [...?] had been the object of the will - of the intention of Titius - had been the effect or among the effects intended by Titius to be produced. In vain would it be established that Titius mounted and rode off with the horse, to which the property he had no good title[?]; in vain unless it were also ascertained that at the time of his so doing, he was conscious of having no right - no good title so to do. The offence of Titus would not in murder in the one case: it would not be theft, stealing, larceny, in the other.
27 Aug 1804
Evidence
Circumstantial
Ch.2.
But necessary /indispensable/ as circumstantial evidence is in all these cases /in so large a class of cases/, insufficient as direct[?] evidence is without it, it is not necessary that the circumstantial evidence should always consist of a separate fact, distinct from that which is deposed to in the way of direct[?] evidence. The physical fact being proved in the way of direct evidence, that same fact may operate /constitute an article/ in the way /character/ of circumstantial evidence, by indicating the secret[?] intention that must have been entertained, the several points of consciousness that must have accompanied these intentions, in order to fix the stamp of criminality or at least of the alledged species[?] and degree of criminality, upon the complex[?] act, as designated by the name of the alledged offence. The iron bar was thrown. l But from the very manner in which it was thrown - the velocity, the direction given to it, added to /coupled with/ the shape and bulk of the instrument, inference may be drawn with respect to the absence or presence of an intention to strike the person in question, and if to strike whether in such manner as to produce his death. The horse was mounted on, and rode off upon. But from the inseparable[?] circumstances of the act - the quantity and situation of the space traversed, and the velocity /quickness/ of the pace, inferences may be drawn as well with regard to the intention of returning the animal to the custody from which it was taken, as with regard to the absence or presence of the consciousness of the legal obligation so to do.
29 Aug 1804
Evidence
Circumstantial
Ch.2
§.1.
There can be no circumstantial evidence without real evidence. But a lot of circumstantial evidence may either consist of a lot of real evidence alone, or of real evidence combined with personal[?]. If the source of real evidence in case of homicide for example, the [...?] dead body, or the supposed instruments of death be itself exhibited to the Judge, the circumstantial evidence consists in fact[?] /purely/ of purely real evidence. If, the source of evidence not being present to the sense of the Judge, his conception in relation to it, be /is/ derived from the report made to him of it by some /any/ other person, it may be termed reported real evidence - the lot of circumstantial evidence in question consists of reported real evidence.
Real evidence comes to /before/ the Judge much more frequently through the medium of a reporting witness /in the state of reported real evidence/, than in a pure state and without any such intervention as above described.
In all questions relative to the probative force of a lot of circumstantial evidence, if the state in which it comes before the Judge be that of reported real evidence, the truth of the testimony must provisionally be assumed. The truth of such testimony - the trustworthiness of such reporting witness will be matter of investigation and dispute like that of any other witness, whose evidence comes under the denomination of direct evidence with regard to the principal fact comes under the denomination /notion[?]/ of direct evidence. But the subject of any such dispute /discussion/ /the question relative to such trustworthiness/ will be altogether distinct from the discussion /question/ relative to the probative force of the probative fact, considered as constituting an article of circumstantial evidence. Suppose the trustworthiness of the witness objected to, the testimony /the evidence he gives/ is [...?] not in so far as it comes under the head of circumstantial evidence but so far as it comes under the head of direct evidence.
27 Sept 1803[?]
Evidence
Circumstantial
We shall see /It will be seen/, that in the cluster[?] of principal facts the concurrence of which is necessary in the instance of most if not all offences to bring the offence under the notion of a crime there is one sort of fact in most cases, an ingredient altogether indispensable, which in its very nature is incapable of being proved by direct evidence - at least by any other testimony than that of the agent himself - which is incapable of being proved, and which consequently when proved by any other /uncorroborated by this/ testimony never is proved by any other than circumstantial evidence. This fact is the existence of criminal consciousness in the agents mind. (Any witness that is not blind may see into another man's countenance: no witness, had he the eyes of Argus could ever see directly into another's mind.)
Among the Romanists, judging from presumptions alone means, if it means anything, judging from circumstantial evidence alone. On this or that occasion you /we/ will find them telling you in the form of a general or even universal proposition that you ought not to judge from presumption from presumptive evidence. If so, from what then is it that you /we/ ought to judge?
When the individual fact in question being an evidentiary fact is to a certain degree remote from the principal fact, then indeed you may say without difficulty and without any [...?] line[?] antecedently[?] drawn by the legislator - this is not a principal fact but a mere evidentiary fact; the testimony by which this fact is endeavoured to be proved, is not direct but circumstantial evidence. But when the principal fact and the evidentiary fact touch, then it is that any decision grounding itself on any supposed distinction between them, any decision rejecting the evidence on the ground of its being no other than circumstantial evidence, will be sophistical[?] in its nature and pernicious in its effects: pernicious because the distinction having no settled foundation in the nature of things, the decision grounded on it could not have been foreseen, but whenever pronounced must have fallen like a thunderstroke upon the party hurt by it.
28 Sept 1803
A
Evidence
Circumstantial
Ch. Explanative
In the consideration of circumstantial evidence, a primary /first/ line of distinction will be between circumstantial evidence of general application, and circumstantial evidence of particular application: between that sort /those sorts/ of circumstantial evidence which apply to all cases in general - at least to penal cases in general, or to all non-penal cases in general - and those, the application of which is confined to particular cases - to the cases of particular offences, or particular claims of right.
In the making out the /a/ list of modifications of circumstantial evidence of general application, the object /our guide/ must be - not the abstract nature of things, a guide which would bewilder us without use in an endless labyrinth - but usage, as created by necessity or expediency, and evidenced by language -
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.
30 Oct 1803
Evidence
Circumstantial
in general
Continuation
In all these instances the psychological fact - the state of the mind is the only fact (it will be seen) that has any intrinsic importance. But as the state of one man's mind can no otherwise be made known to any other man than through the medium of some external physical indications, in all these instances it is the physical evidence, and that alone, that constitutes /is/ the object unavoidably[?] presented to the senses /[...?]/ /cognizance/ of a disposing witness or the Judge. In all these cases therefore we see not merely a single link of evidence, but a chain, whole[?] chain of evidence though that as short a one as a chain can be, of evidence. To the senses of the Judge are presented without the intervention[?] of any other object /medium/ different /sundry/ articles of physical evidence - the physical appearances durable or non durable of which the vocal language, the written discourse, the countenance the gesture, the deportment, the course of proceeding of the individual in question is /are/ composed: from these physical indications, in virtue of a propensity so frequently called into action as to have become as it were /in a manner/ instructive, inferences are drawn by the Judge affirming on the part of the same individual the existence of some psychological fact, intention to act or consciousness of intention according to the nature of the case. In the case of those modifications of circumstantial evidence that stand distinguished by the title of prudential, this psychological fact is an act of intentionality: in those which stand under the head of subsequential, /it is an exemplification/ an act of consciousness - inculpative criminal consciousness in a penal case, if the case be a penal one; inculpative criminal consciousness - consciousness of the existence of these circumstances by which the physical act is invested of the character of an offence /a crime/.