9 Sept 1804
Evidence
Circumstantial
Ch. Generalia
§. Modification
[...?]. Evidence by deportment - by demeanour - by behaviour - by conduct by actions - all these denominations indicate nearly the same thing - personal evidence of this sort though it be of a nature peculiar to persons /besides having a person for its source/, and agrees in some respects with evidence by discourse, differs widely and materially from it in other respects. In the way of discourse, evidence can not be given by a person without the concurrence of his will, directed to the very object of inducing a belief of the facts reported by it: in the way of deportment evidence may be given - the existence of the facts in question suggested - without any such concurrence. Indeed it is mostly in the case when /in which/ if it depended upon his will no such suggestion - no such persuasion - would take place, that the evidence in the way of deportment is resorted to. discourse it is current /well known/, is the ordinary, most apposite, and most determinate and unambiguous vehicle for human ideas for personal evidence. Deportment is but an imperfect and makeshift substitute for discourse. Accordingly it is only when evidence in the way of discourse is not to be had or is regarded as fallacious, that /recourse is had/ evidence in /by/ the way of deportment is recurred to. Evidence by deportment is not - nothing but evidence in the way of discourse is - testimony nor that when extra[?] judicially uttered[?]. Questions substituted in some cases of natural defect for language /words/ are not deportment but testimony. Signs also, if employed instead of language, come under the notion of evidence by discourse, and not under that of evidence by deportment.
9 Sept 1804
Evidence
Circumstantial
Ch General
§. Modifications
By the above /all these several/ marks, evidence by deportment, though it be personal evidence as well as from a personal source, will be clearly understood to be - in no case direct - in every case circumstantial evidence. Its connection with the principal fact in question will be required to be made out and its probative force will be understood /seen/ to be reduced /reducible/ by the same connections /cause/ in this case as in the case of real evidence from a personal source. When subsequent to the principal fact in question - it being a punishable act it may operate as evidence of intention with reference to the commission of the act: a sort of information that may not so frequently be conveyed by purely real evidence. But when subsequent to that same act, it will most commonly be indicative of fear and nothing more - fear - the same sort of psychological evidence, as, at that period, will most frequently be the psychological fact indicated by real evidence.
31 Aug 1804
Evidence
Circumstantial
Ch.2. Explanations[?]
So, on the negative side, may the correspondent expressions following.
1. The strength of the persuasion, in disaffirmance of the existence of the fact said to be disproved /principal fact in question/, that persuasion being produced by the contemplation of the evidentiary fact.
2. The disprobative force of the evidentiary fact with reference to the fact said to be disproved
3. The (apparent) /degree of/ repugnancy between the existence of the evidentiary fact and the existence of the fact said to be disproved
4. The apparent improbability of the existence of the fact said to be disproved - as deduced or inferred from the existence of the evidentiary fact.
When these quantities are respectively considered as being at their maximum, the fact said to be disproved is considered and spoken of as impossible - the impossibility of it being the necessary consequence of the existence of the evidentiary fact
29 Aug 1804
Evidence
Circumstantial
Ch.2 Explanations
[...?] as [...?], or abridged?
(An observation is here necessary to prevent ambiguity /indistinctness/ and confusion. The considerations
The question of certainty and necessity on the one hand, and of impossibility on the other, are /there seem to be/ more closely connected, than might at first sight be supposed.) Correspondent to every positive fact - to the existence of any given fact is a negative fact - the non-existence of that same fact. Certainty of the existence of any given positive fact is the same thing /synonymous/with impossibility of the existence of the correspondent negative fact. Certainty of the existence of any given negative fact, is the same thing with impossibility of the existence of the correspondent positive fact. Acts of a negative nature, are frequently found disguised under a positive denomination. Take, for instance starving (a child or prisoner[?]); insolvency; absconding; smuggling in various cases.
So again facts at large. That Titius is dead, may at first sight be taken for a positive fact. Examined more closely it will appear to be more properly a negative fact: dead being only an abridged mode of saying, not /no longer/ alive. So again in the case of absence: absent from such or such a place /is as much as/ not present /absent is as much as to say, not present/ - not in such /that/ or such a place.
28 Aug 1804
Evidence
Note
Circumstantial
Ch.2. Explanations
Note
(a) There is even a class of offences, and that a most extensive /comprehensive/ one, in the case of which, - no act of a physical nature - no motion - enters into the composition of the offence. These are /I speak of/ negative offences: class so extensive /comprehensive/ as to spread over the whole field of penal law. No /no/ positive species of delinquency - no positive species pernicious agency, that has not its correspondent negative offence.
See [...?] where this is shown at large. In many instances, where /Offences are not wanting, in which though/ the mischievous result is in ordinary cases the effect of some physical act of a positive nature (for example witness homicide) yet the same effect is in some circumstances liable to ensue from a mere negative course of action. For example in the case of an infant on the part of the mother or the nurse, the omission to administer food - or the omission of any of the services necessary to the continuance of life. So in the case of a prisoner, like omissions on the part of the Jailor.
31 Aug 1804
Evidence
Circumstantial
Ch.2. Explanation
In all questions respecting evidence, it is the aim of the speaker or writer to communicate /generate in the minds of/ to others (and in particular to the Judge for example) the persuasion which he himself entertains or professes to entertain - and that in the strongest degree possible. According to the logical nature of the fact in question - i.e. whether it be affirmative or negative his endeavour is to cause it to be received /regarded/ as certain, or impossible. To produce the persuasion in question he will naturally employ in preference - the strongest, the most impressive the most efficient the most impressive terms he can find /that are to be found/ and such are the above.
This same artifice a man will even employ in addressing himself to himself. Words are so necessary to give distinctness and permanence[?] to ideas that even in debating with himself a man makes use of their assistance. Indecision is an unpleasant state of mind. Whatever word bids fairest for liberating the mind out of it bids fairest for being accepted and employed.
As between the two terms certainty and impossibility the latter will for that same reason be apt rather to obtain the preference. In the use of the word certainty the idea of human opinion, the opinion of the speaker is unavoidably brought to view. In the use of the word impossibility no such necessary idea is brought to view. The impossibility of the fact in question is regarded as arising out of the nature of things, and that alone. The existence of such a fact is certain: I am certain of the existence of the fact /neither more nor less than to [...?] [...?] is as much as to say [...?] [...?] [...?]/. Such is my opinion, my persuasion: the strength of my persuasion in relation to it is at its highest pitch In doing this I imply /appear to/ what I never confess as the great truth be the fact it may[?] - that the best /strongest/ ground I can have for regarding the fact as true is but opinion, persuasion: my own persuasion howsoever grounded, whether on my own perceptions, or the [...?] /supposed/ perception of any other person or persons. But in saying the fact is impossible, every thing of opinion, the idea of opinion with the attendant idea of weakness and fallibility, are kept out of sight.
2 Sept 1804
Evidence
Circumstantial
Ch.2. Explanation
§.2
There is yet another circumstance by which impossibility - as well the idea as the word seems to present itself to the mind with a recommendation beyond any that can be produced by its [...?] certainty. For satisfying the mind of the impossibility of this or that fact, a single circumstance may be sufficient. Certainty can seldom be pronounced but in a review[?] of a multiplicity of facts.
What a man /the mind/ aims at in its /his/ researches after truth is to throw into classes[?] the facts /in the [...?]/ that he regards /looks upon/ as true and certain - certainly true - on the other hand the facts which he looks upon as impossible. If any circumstance can be found of a nature to constitute a criterion or essential character of any such class - a mark whereby if found upon an individual object that object is thereby proved to belong to the class in question - a discovery of this sort will be very commodious in practice. To satisfy himself in each instance that the individual in question belongs to the class in question a man has but to see this mark, and all further examination, with the labour attendant on it, is at an end. Thus it is that by observing the impression upon a guinea, a man saves himself the trouble of measuring and weighing it and assaiying[?] it. Thus it is that the human mind acts /constantly upon the look out for occasions on which, and/ under a constant anxiety for ground, and even pretences[?] on which it may look upon itself as warranted in pronouncing the comfortable words certainty and impossibility: more especially impossibility, in so far as the marks capable of showing a fact to belong to this class, turn[?] /promise/ in this case to be particularly simple and easily attainable.
2 Sept 1804
Evidence
Ch.2. Explanations
§.2
That certainty probability and impossibility, and improbability are properly speaking attributes not of things - not of facts - but only of the mind that thinks of them, is an observation which there has already been occasion to bring to view. The observation /consideration perception/ however is not a pleasant one: and thence it is that the mind labours /labours on every occasion/ by all the contrivances in its power, to keep it out of sight. To warrant the conclusions which /it[?]/ the mind makes upon all sorts of occasions - to warrant the lines[?] of practice it [...?] into upon those occasions - all that it really has on each occasion is its own persuasion in relation to the truth of the supposed facts which are in question on these several occasions. But of the fallibility of that sort of internal sense, of the fallibility of it how strong [...?] its perceptions /reports/ - of the [...?] of such perception to prove false and unconformable to the subsequently evidenced state of things - every man's experience affords him but too decisive and frequent exemplifications. Convinced in this way of the fallibility of that criterion[?] of truth the only one which is within himself, he looks out for, and by the help of these powers of self-deceit with which he is furnished in such abundance by the nature of language succeeds in fabricating, a sort of fictitious criterion, which he /a fictitious property, which that[?] it may be seen to be a different one, he lodges in a different/ place in the nature of the thing, - in the nature of the facts themselves. There are some classes of facts certain in their nature; others in different degrees probable: of the former, certainty is an unquestionable attribute; if the latter, probability, in all its various degrees.
2 Sept 1804
Evidence
Ch.2. Explanations
§.2
To say I am infallible is a speech that a man of a common degree of modesty and rationality will be ashamed to make even to himself. He will not only not say it of all his judgments all his persuasions taken in the lump, but neither will he say it of any one such judgment - the judgment pronounced upon any individual occasion - taken by itself. But to say of any one individual fact - this fact is impossible - is to say /express/ the same thing /the same proposition, only/ in different terms. For if indeed this fact be impossible - absolutely and in its own nature impossible - then in so long as asserting it to be impossible, I who assert it so to be, am infallible: the extent of my infallibility is commensurate to the aggregate extent of the aggregate mass of impossible facts - that is of such facts - all such facts to which the attribute of impossibility is thus /comes thus to be/ ascribed by me.
2 Sept 1804
Evidence
Ch.2. Explanations
What then is nothing certain? is nothing impossible? And is this the practical fruit of you /these/ labours - the fruit /result/ at least that they seek to bring to maturity - the plunging yourself and all mankind into the abyss of scepticism - the dark and bottomless pit of universal scepticism? By no means. What I maintain is - that, as for all practical purposes of every kind - so in particular for the purposes of judicature the lights we are enabled to collect from evidence - which is as much as to say the lights we are enabled to collect from all sources put together are sufficient in the main for every purpose for which we can reasonably wish them to be sufficient: sufficient for external action, sufficient for internal satisfaction and repose.
What then is the sort of decision which by these observations it is my endeavour to remove? Not that sort of decision which is necessary to external agency, and to internal self satisfaction but that sort of a decision /blind, and deaf and impracticable/ which leads in disposition[?] to antipathy and intolerance, and in action, when it finds [...?] in [...?] of sufficient elevation - to the laying down, in the laws[?] of judicature and legislation of hasty and coercive general rules.