How I Advanced Beyond Negroland: Stopping Unscrupulous Debt Collectors
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Now it is, that the testimony—not being, in respect of such part of it as is true, full enough to operate of itself with a conclusive force in the character of direct evidence—is consulted as it were, and made to operate further, in the character of circumstantial evidence; in which character it may be full enough to operate, and even conclusively; affording full satisfaction—generating a full persuasion,—although, in the character of direct evidence, it was deficient.
But on this occasion, such parts of the testimony as are false, may in so far as they are understood to be false contribute in support of the conclusion, just as much as the facts that are true. For, not only when the whole narrative is viewed together, in a general point of view, falsehood is, to the apprehension of every rational mind, a strong indication and symptom of delinquency—of whatever modification of delinquency the defendant on the occasion in question happens to be suspected of,—but, in respect of the details of the transaction, this or that particular falsehood an assertion representing this or that fact as existing at the time and place in question, which did not exist at that time and place, or representing as not existing Edition: current; Page: [ 4 ] at the time and place in question a fact which, at that time and place, did exist will afford an inference and that frequently a conclusive and perfectly satisfactory one establishing this or that particular truth—the existence of this or that fact which then and there did exist, or the non-existence of this or that fact which then and there did not exist.
From the foregoing elucidations, the definition of an article of circumstantial, as distinguished from an article of direct evidence, may be deduced as follows; viz. The principal fact being given, and being the same in both cases; the evidentiary fact, constituting the article of evidence—if it be of the nature of direct evidence having for its source a person, to wit, a single person, and no more —consists of an averment, statement, assertion, narration all these mean the same thing, made by that person, averring that, at a specified time and place, the principal fact in question came within the cognizance of his senses: such assertion being expressed either by words spoken, or by written discourse, or even by gestures or modifications of deportment, if such gestures were intended to convey an assertion to the effect in question, instead of its being conveyed by words.
When, of any principal fact in question, the existence is indicated by direct evidence no objection presenting itself to the trustworthiness of the deponent by whom the existence of it is asserted, it is said to be proved; and for the proof of every such fact by evidence of this description, a simple assertion, made by any one such person in the character of a deponent, is frequently under English law at any rate regarded as sufficient. The persuasion generated by it in the mind of the judge is of sufficient strength to give birth to a decision on his part; together with such acts of power, to which, on the occasion in question, a decision to the effect in question is in the habit of giving birth.
When, of the existence of the principal fact in question, no other indication presents itself than what is afforded by circumstantial evidence, it is seldom, very seldom, that by any single article of evidence of that description the fact is considered as being proved: it is seldom that by any one such article, standing by itself, a persuasion strong enough to constitute a ground for action is constituted in the mind of the judge. By some greater number of such lots of circumstantial evidence, taken together, the fact may be said to be proved. Of the probative force of any one of them, taken by itself, the utmost that can be said is, that by means of it the fact is probabilized: —rendered, in a greater or less degree, probable.
As there are facts—evidentiary facts—by the force of which, a fact, considered in the character of a principal fact, is probabilized,—so it will generally happen that there are others by which the same fact may be disprobabilized: —the existence of it rendered more or less improbable. When a principal fact is thus probabilized, it is by the probative force of the evidentiary fact: by the strength of the inference by which, the existence of the evidentiary fact being affirmed, the existence of the principal fact is inferred.
A fact being, in the character of an evidentiary fact, deposed to and considered as proved, and the principal fact in question considered as being thereby, in a certain degree, probabilized,—it will often happen, that, by the bare consideration of some other fact, which is not proved, nor so much as attempted to be proved, the principal fact will be considered as being, in a greater or less degree, disprobabilized. Because, if the existence of this disprobabilizing fact be supposed it being itself, in the case in question, not impossible, it will therefore be seen that, notwithstanding the existence of a probabilizing fact, the existence of the principal fact is not in so high a degree probable, as it would be if the existence of the disprobabilizing fact were impossible.
Speaking with reference to the probabilizing fact in question,—any such disprobabilizing fact, thus contributing to weaken, to render infirm, the probative force of the probabilizing fact, may be termed an infirmative fact. There are few, if any, probabilizing facts, in relation to which, one or more commonly, if not constantly, more than one infirmative facts would not, in case of an adequately diligent scrutiny, be found.
Among the facts which will be brought to view in the character of principal facts, is delinquency. Among the facts which will be brought to view in the character of evidentiary facts, are various facts, the nature of which supposing them proved is to operate, with relation to any principal fact of that description, in the character of circumstantial evidence. Among the facts which will be brought to view in the character of infirmative, and thereby of disprobabilizing, facts, are various facts, the force of which applies itself to divers of the facts just mentioned in the character of probabilizing facts, operating in that character with relation to delinquency.
In the instance of a fact of either description, supposing it either unseen, or the probative or disprobative force of it undervalued, the effect of such oversight or error may be fatal, with reference to one or other of the direct ends of justice. If the fact overlooked be a probabilizing fact, in relation to delinquency,—a wrongdoer may escape the burthen of punishment or satisfaction to which it was the intention of the law to subject him: if it be, in relation to any such probabilizing fact, an infirmative fact,—an individual who is not a wrongdoer may be subjected to punishment or the burthen of satisfaction as if he were.
In the case of delinquency, as in the case of a principal fact of any other description, the probabilizing facts in question be it observed are, by the supposition, not only brought to view, but proved; so that, in regard to these, all that, for the instruction of the judge, can be done by human industry, is to give what little instruction can be given in relation to their respective degrees of probative force. But, of any regard paid to any of the infirmative facts that respectively apply to these several probabilizing facts, the nature of the case affords no such certainty: it is in this instance, therefore, that the need of instruction is the greatest: it is by bringing to view the facts of this description, that, by hands unclothed with authority, the greatest service may be rendered to justice under the head of circumstantial evidence.
Overlooked they are in many instances not unapt to be. To exhibit every fact capable of being considered in the character of a principal fact, together with every fact capable of being, with reference to it, considered in the character of an evidentiary i. For the purpose of the present occasion, a selection must therefore necessarily be made, and this even among the cases liable to call for decision at the hands of judicature: for, in one way or other, to whatever branch of science it belongs, there is scarce an imaginable fact to which it may not happen to be Edition: current; Page: [ 6 ] an object of research, for the purpose of a decision sought at the hands of judicature.
Patents, by which temporary monopolies are granted for the encouragement of inventions, suffice of themselves to subject to the dominion of judicature almost the whole practical department of the field of physical science: wagers have power to subject to the cognizance of the same authority every proveable fact without distinction. By a wager concerning the existence of phlogiston, the whole field of chemistry might have been laid at the feet of the judge.
In the selection here made, the object has been, to take such examples as, by the frequency of their occurrence, and the extent of the ground which they cover in the field of law, promise to be in a more particular degree serviceable towards the prevention of the erroneous conclusions to which the function of judication so far as concerns the question of fact is exposed. Here follow examples of facts, which, in the character of principal facts facts on the belief of which judicial decision depends are susceptible of being probabilized or disprobabilized by correspondent evidentiary facts or groups of evidentiary facts, constituting so many articles of circumstantial evidence, such as are in use to be deposed to, and considered as proved, in a course of judicial investigation.
Principal facts considered as probabilized: —. Delinquency in general; viz. An enumeration of the several facts capable of serving, in the character of evidentiary facts, to probabilize a principal fact coming under this description viz. Intention of performing any individual act belonging to a modification of delinquency, i. Unauthenticity or unfairness on one or both sides, in the instance of a written instrument expressive of agreement or conveyance.
Correspondent evidentiary fact, non-observance of formalities; viz.
By the laws by which these formalities have been appointed, the evidentiary fact here in question has in general been considered as conclusive evidence of the principal fact. Concerning the propriety of so peremptory a conclusion, see the book on Preappointed Evidence, and the book having for its subject the exclusions customarily put on various modifications of evidence. Unauthenticity total or partial of any instrument being, or purporting to be, of ancient date. For the circumstances capable of serving in the character of evidentiary facts to probabilize this principal fact, unauthenticity.
Posteriora priorum: any supposed antecedent acts in a number of supposed successive acts whether forbidden by law or not, considered as following one another in a supposed naturally connected series: for example, as being, or being supposed to be, conducive to one and the same end; such as, in a lawsuit, success, viz. Correspondent evidentiary facts,—any acts proved to have been performed, and considered as having been performed in consequence of such supposed antecedent acts; for example, in pursuit of the same end. Priora posteriorum: any supposed consequent acts in a number of supposed successive acts, considered as following one another in a supposed naturally connected series, as above.
Correspondent evidentiary facts,—any acts proved to have been performed, and considered as having been performed antecedently to, and with the intention of their being followed by, such supposed consequent acts, as being means conducive to the same end. Principal facts considered as disprobabilized: —. Any supposed act of delinquency: any act made penal, or though but disreputable: especially if in a high degree. The correspondent disprobabilizing evidentiary facts, are situations: viz. In the sequel of this Book it will be seen, what situations can be considered to operate as circumstantial evidence probabilizing the existence of delinquency.
Now, whatsoever situation exhibits the supposed delinquent as in a certain degree exposed to the danger of falling into the species of guilt in question,—by a situation opposite to that seductive situation he will in a proportionable degree he guarded and fortified against that danger. Short and general expression for all supposed facts, considered in the character of disprobabilizing facts with relation to the supposed fact,— physical impossibility or improbability.
These disprobabilizing facts follow, in each instance, the nature of the supposed principal fact. Any facts, considered as affording the indication in question, being supposed to be established, whether by special proof or by their own supposed notoriety,—there remains in each instance for consideration the question, whether the existence of the supposed principal fact is incompatible with the existence of the disprobabilizing facts? The principal fact being considered as proved viz. Of the applications capable of being made of this modification of circumstantial evidence, the principal is that in which the extraordinary interposition of supernatural power is supposed: as in the case of sorcery, witchcraft, and such other operations, real or supposed, as have been designated under the general name of miracles.
Any supposed psychological fact whatsoever; i. Corresponding disprobabilizing facts shortly designated as above, psychological improbability. The term impossibility is in this case omitted. The reason is, the want of uniformity and consistency on the part of all psychological facts as compared with physical ones.
Correspondent and opposite to impossibility, is certainty. But the case of insanity is of itself sufficient to prevent any state of the human mind from being considered in any instance as certain: and of insanity there are gradations innumerable; many of them, at that end of the scale which is next to sanity, scarce distinguishable from it. The last-mentioned species of circumstantial evidence—improbability or impossibility—has in its nature something peculiar. In all the other kinds of circumstantial evidence, the evidentiary fact whatever it be—positive or negative is at any rate something entirely distinct from, and independent of, the principal fact, the fact to be proved.
In the case of improbability or impossibility, the evidentiary fact is not another and a distinct fact: it is no other than a property, or supposed property, of the principal fact itself; to wit as will hereafter be seen, the property of being contrary to the order of nature. Circumstantial evidence, therefore, may with propriety be distinguished into that which is afforded by other facts, and that which is afforded by the nature of the fact itself that is to be proved.
For the illustration of the first of these modifications of circumstantial evidence,—taking for the principal fact, delinquency, considered in a general point of view,—I shall bring to view the several classes of probabilizing facts bearing relation to it; accompanied with an indication of such facts as present themselves in the character of infirmative facts with relation to such of the above-mentioned probabilizing facts as are exhibited in a state particular enough to be susceptible of any such particular indications.
This done, from the mass of particular considerations thus brought to view I shall deduce such considerations of a general nature as promise to be of use in the way of instruction, either to the legislator or the judge; for which purpose, the matter afforded by such of the circumstantial evidences as have for their principal fact delinquency, will, it is supposed, suffice.
I shall then pass to the consideration of that kind of circumstantial evidence which is afforded by the nature of the principal fact itself; viz.
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By real evidence, I understand all evidence of which any object belonging to the class of things is the source; persons also included, in respect of such properties as belong to them in common with things. The properties of things are the subject-matter of the different branches of physical science. A work having for its subject any such branch of science, is, as to a great part of its contents, a treatise on circumstantial evidence.
In this point of view, this comparatively small portion of our field of inquiry is of itself infinite. On the present occasion, the inquiry is limited to the field of law. Even after this limitation, however, there is scarce an imaginable distinction or observation, an indication of which could, with reference to the subject of the present work, be charged with being altogether irrelevant: for, in one way or other, and even in each instance in various ways, there is not an imaginable fact, the existence of which is not capable of being taken for the subject of inquiry in a court of judicature.
No imaginable fact for example, the existence of which may not unless in case of legal prohibition interposed for special reasons have been taken for the subject of a wager: on which occasion, whether the wager has been won or no by Titius, may become a question to be determined by a court of law.
Add to this, the case of a premium offered for an invention or discovery; the case of a claim put in to the sort of temporary monopoly granted to inventors for the encouragement of inventions; and the case of a question whether a contract, respecting the practice of any branch of art, or the affording instruction in relation to any branch of science, has been properly fulfilled.
Of the evidence that on any of these occasions may come to be exhibited, a portion more or less considerable if not the whole will come under the notion of the species of evidence already distinguished under the appellation of scientific evidence: but it is not the less true that the facts brought to view on such occasions respectively, are brought to view in the character of evidentiary facts, and are included in the field of legal evidence. But, as the duration of human life, as well as human powers psychological and physical, has its limits; it becomes matter not only of convenience but of necessity, to mark off and abandon to the labours of their respective professional and other appropriate cultivators, these several distinguished and pre-eminent portions of the field of evidence.
Even in the more limited field opened by the penal branch of law,—a prodigiously ample and diversified demand, a demand scarce susceptible of limitation, will be seen to present itself. Cases of homicide and personal injury not to mention at present a great variety of other cases, are sufficient of themselves to draw deep upon the stores of medical science: cases of monetary forgery upon the metallurgic branch of chemistry: cases of scriptural forgery, upon the arts of the engraver, the paper-maker, the letter-founder, the ink-maker, and through one or other channel upon the stores of chemistry.
Of all modifications of real evidence, the human body is that source which will serve best for exemplification: the matter afforded by it being at the same time of the most interesting nature, susceptible of the greatest variety, and capable of being brought to view in the smallest compass, proportionally to the importance of the instruction conveyed by it. A few articles are omitted; some as not being applicable to the present design; others as referring to vulgar errors, which, at this time of day, no longer threaten to be productive of errors in judicature.
Questions belonging to the cognizance of criminal tribunals:—.
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Questions belonging to the cognizance of civil tribunals:—. Questions belonging to the cognizance of ecclesiastical tribunals:—. For the reasons already stated, the inquiry is in the present instance limited to the penal branch of law. The fact sought, and concerning which on each occasion the question is, whether it be evidenced or no, is delinquency: the evidentiary facts are any and every fact, considered as capable of operating in that character with reference to the fact sought.
Division of things, considered as sources of real evidence: the source of the division being the nature of the relation they respectively Edition: current; Page: [ 10 ] bear to the fact of delinquency, considered as the fact indicated. Subject-matter of the offence itself. The person killed or hurt. The thing stolen or otherwise taken in the way of depredation, or damaged, or destroyed. The instrument of contract fraudulently uttered or fabricated. The genuine money diminished: the counterfeit money fabricated.
Fruits of the offence. Instruments of the offence. In the case of homicide or other bodily injury,—the pistol, sword, club, knife, or other weapon: in case of poisoning,—the poison. In case of depredation by house-breaking,—the picklock keys, the crow or chisel, the ladder. In case of incendiarism,—the combustibles. In case of forgery,—the engraved plates, the instruments for the fabrication of the appropriate papers. In case of monetary forgery,—the coining tools. Materials of the subject-matter of the offence, or of the instruments of the offence, when they happen to have anything appropriate in their nature, exclusively or peculiarly fitting them for being converted into instruments of the offence.
Silver or gold, in plates, or other suspicious forms, where coining is the offence in question. Laurel leaves for distillation, where poisoning is the fact in question. Drugs calculated for the purpose of adulteration, found in large quantities in the possession of a dealer in the article which such drugs are capable of being employed to adulterate. Receptacles inclosing or having inclosed as above —1. The subject-matter; 2. The clothing of the person killed or hurt; 2.
Circumjacent detached bodies. Bodies circumjacent though detached, with reference to any of the objects above enumerated. It is in virtue of some peculiarity in their condition, that the things in question are qualified to become sources of real evidence; evidentiary facts, with reference to the modification of delinquency in question—the fact indicated.
This condition may to the purpose in question be distinguished into relative and absolute: relative, bearing to the person in question any such relation as has the effect of indicating him in the character of the delinquent; absolute, indicating without any indication of the person the existence of the obnoxious event the death, the damage to property by fire or other cause, coupled or not with the indication of its being referable to human delinquency as its cause. Physical real evidence whether issuing from a real or from a personal source requires to be distinguished into immediate, and reported.
I call it immediate, in the case where the thing which is the source of the evidence is made present to the senses of the judge himself. I call it reported, in the case where it is not made present to the senses of the judge himself,—but the state of it in respect of the evidence, the evidentiary facts, said to be afforded by it, is presented to the judge no otherwise than by the report made of it by a person, by whom in the character of a percipient witness the state and condition of it in respect of the evidentiary facts in question is reported by him to have been observed.
In the case of immediate real evidence as above described, the evidence is of the circumstantial kind purely: it is a case of purely real, purely circumstantial evidence. In the case of reported evidence, it is of a compound or mixed kind, composed of supposed real evidence exhibited through the medium of personal; of circumstantial, exhibited through the medium of direct, evidence. To the reporting witness indeed, if his report be true, it was so much immediate, so much pure real evidence: but to the judge it is but reported real evidence.
The distinction is far from being a purely speculative one: practice requires to be directed by it. Reported real evidence is analogous to hearsay evidence, and labours more or less under the infirmities which attach to that modification of personal evidence, compounded of circumstantial evidence and direct,—of real evidence, and ordinary personal evidence evidence given in the way of discourse: it unites the infirmities of both.
The lights afforded, or said to have been afforded, by the real evidence, are liable to be weakened in intensity, and altered in colour, by the medium through which it is transmitted: a topic which will come to be considered in the Book which treats of makeshift evidence.
The History of Rome, Book IV by Theodor Mommsen
From this infirmity results an obvious practical rule—viz. But of this elsewhere. The evidentiary i. Yet, except in so far as the connexion between the principal fact and the evidentiary fact is necessary, there is not one such evidentiary fact but must have its correspondent infirmative facts, by the possibility of which its probative force is diminished. Not that facts are altogether wanting, which the evidentiary facts being by the nature of the principal fact so many criminative or inculpative facts are applicable in common to all evidentiary facts belonging to the class of real evidence.
Of the infirmative facts of this description, five examples may be designated as follows, viz. The appearance unquestionable, but not having for its cause any agency of the supposed delinquent, directed to the production of the forbidden result in question: being produced either by causes purely physical, or if with the intervention of any human agent acting in pursuit of any end produced either by some other person, or by himself in pursuit of some unforbidden end.
Self-exculpative forgery in relation to real evidence viz. See, further on, Forgery in relation to Real Evidence. Like forgery committed by some other person, who—though not guilty in respect of the offence indicated by the real evidence in question in its genuine state—yet, under the apprehension of the indications it affords to his prejudice, alters the appearance in question, with a view to the doing away of those indications. Like forgery committed by another person, in the view of subjecting the defendant to the imputation in question for a malicious purpose; i. Like forgery committed in sport; i.
Nothing is more familiar than the word possession; nothing more variable and indistinct than the ideas which are wont to be attached to that word: but, in so far as on any occasion it is considered as being applicable in such sort that a thing considered as a source of criminative real evidence, being such in relation to the supposed delinquent in question, is considered as being in his possession,—in so far is the relation indicated by the word possession apt to be considered as evidentiary of delinquency in his instance.
Of this species of criminative circumstantial evidence, possession of stolen goods affords the most obvious and frequently exemplified case. Of possession of criminative evidence, the probative force will be liable to be varied according to a distinction expressible by the terms actual and antecedent: actual, when at the very time in question, the thing in question is supposed to be found in possession of the supposed delinquent; antecedent, when it is only supposed to have been in his possession at some antecedent point of time.
In the latter case, its identity is supposed, but is liable to become the matter of an additional question: in relation to which question, this or that supposed intrinsic mark of ownership, designed or undesigned, will frequently present itself in the character of an Edition: current; Page: [ 12 ] article of real evidence, serving to probabilize the supposed fact in question; viz.
To possession of criminative real evidence, in its character of a fact evidentiary of delinquency, apply, in the character of infirmative facts, those five which we have seen applying to real evidence itself when considered as criminative. Additional infirmative facts applying to possession of criminative real evidence, and not to the real evidence itself, are—. Unconsciousness: when, though the situation of the thing in question is or has been such as to warrant its being said to be or to have been in the possession of the supposed delinquent, he himself has never been conscious of its being so: a state of things that may naturally enough have been brought into existence by any of the five causes enumerated as above under the head of real evidence.
Clandestine introduction. Subsequently to the introduction of the thing into the place by its introduction into which it is put into his possession, he becomes conscious of its being there; but, of the operation by which it was introduced, he had not, while the operation was going forward, any knowledge. Forcible introduction: when it was with his knowledge indeed, but against his declared or known will, that the thing in question was placed in that situation in which it is considered as being in his possession: as, if by conspiracy among three men against one, one lays hold of both his hands, another puts into his pocket a stolen handkerchief, which the third, running up during the scuffle, finds there.
By the circumstance of force, supposing it proved, the criminative effect of possession as above would be destroyed altogether: but what may happen is, that the possession shall have been proved, when the force is not proved. In case of supposed antecedent possession as above — non-identity of the thing in question. The man is seen running, and, on the path which he has been taking, a handkerchief is seen lying. A handkerchief resembling it had been seen in his hand; but though similar, it was not the same.
Furtherance of justice: receipt or seizure of the thing in question, in the view of applying it to its use in the character of a source of criminative evidence: as in the case of an official minister of justice so demeaning himself in the execution of his office, or an individual volunteering his services to the same effect.
Nothing can be more persuasive than the circumstance of possession commonly is, when corroborated by other criminative circumstances: nothing more inconclusive, supposing it to stand alone. Receptacles may be contained one within the other, as in the case of a nest of boxes: the jewel in a case; the case in a box; the box in a bureau; the bureau in a closet; the closet in a room; the room in a house; the house in a field. Possession of the jewel, actual possession, may thus belong to half a dozen different persons at the same time: and as to antecedent possession, the number of possible successive possessors is manifestly beyond all limit.
Connected with this subject, is the consideration of the probative force of possession of criminative written evidence. When written evidence—such as supposing it to have for its author the supposed delinquent would, in the character of confessorial evidence, tend to induce a persuasion of his being guilty of the offence in question—is found in his possession,—the mere circumstance of its being in his possession will of itself, if separated from the circumstances that are so apt to be connected with it, scarce be capable of possessing criminative force sufficient to entitle it to the denomination of criminative evidence.
If, indeed, possessing with regard to him this criminative tendency, and speaking in his own person, it appears upon the face of it to be written with his own hand as in the case of a memorandum written for his own use, or a letter written by him and intended to be sent to the person to whom it is addressed, but not sent; there is no doubt that—if, being spoken, it would have amounted to self-criminative i.
But, in this case, its criminative force depends altogether upon what it contributes in the character of confessorial evidence, towards inducing a persuasion of his having been concerned in the forbidden act. From the circumstance of its being found in his possession, it can scarce be said to derive any probative force over and above what it would have possessed if found anywhere else: if, for example, being a letter, it had been sent to the person for whom it was designed, and by him produced in evidence. It being still of such a nature as had it for its author, as above, the supposed delinquent, and were it spoken in his person would operate against him in the character of confessorial evidence; suppose it were to have for its author another individual, writing and speaking of the criminal transaction in question, whether in the character of an accomplice or an accuser.
With a probative force proportioned to the strength of the indication afforded by it, and to the trustworthiness of the writer, it would operate in the character Edition: current; Page: [ 13 ] of the weak and makeshift species of evidence which will be brought to view in the next Book, under the name of casually-written or written casual evidence. But, from the circumstance of its being found in the possession of the supposed delinquent, it would scarcely derive any probative force, over and above what it would have possessed, if, in its way to his house, it had been intercepted— for example, at a post-office.
Addressed to him by word of mouth—or even, although not addressed to him, if spoken in his presence—a discourse of exactly the same tenor might have operated against him with a considerable degree of probative force. Because—when the supposed delinquent and the virtual accuser were at the time of uttering the virtual accusation in presence of each other—not only the motive to contradict the accusation in case of its falsity, but the opportunity, the opportunity for immediate contradiction, exists.
THE NEGROES OF CINCINNATI PRIOR TO THE CIVIL WAR
Noncontradiction of criminative discourse operates therefore as evidentiary of confession; though not without standing exposed to the debilitative force of various infirmative facts. In the case of real evidence, possession may indeed, and not unreasonably, be considered as operating in the character of a criminative circumstance. Because, by possession of things fit for use, a most natural though sometimes not an infallible presumption is afforded of actual use and ownership: including under the head of use, in the case of a mercantile man, sale, as being a mode of using particularly adapted to his situation in life.
True it is, that, where the authorship has for its proof similitude of hands which is a sort of real evidence. Because, if it be extraordinary that writing, bearing such a degree of resemblance to that of Reus, should not be his, it is still more extraordinary that writing bearing such a degree of resemblance to that of Reus, and moreover found in his possession, should not be his.
Taken by itself, so weak is the probative, the criminative force of written evidence understand all along such written evidence the tendency of which is to fix the imputation of the offence in question on the individual in whose possession it happens to be found, that it is scarce susceptible of being rendered weaker by the consideration of any facts operating in the character of infirmative facts.
But the infirmative facts capable of applying to it are of the same nature as those which have been seen applying to the case of possession of real evidence at large, when considered in respect of the criminative force with which it is capable of operating. It may have come, for example, by the post, addressed to himself: it may have come by the post addressed to some inmate of his, and thus remain in his possession for any length of time without his knowledge. It has perhaps very seldom happened that written evidence, tending to criminate a man in respect of the crimes in question, has been found in his possession, but there has been good and sufficient reason for regarding him as guilty.
But, in these same cases, the principal reason has been constituted, not by this of possession, but by similitude of hands, or by other evidence. Supposed facts that belong not to this head are apt to be urged in the character of infirmative facts, for the purpose of encountering the criminative circumstantial evidence constituted by possession of written evidence of the nature here in question. Such are—. Irrelevancy of the discourse, either with reference to delinquency in general, or with reference to the particular species of delinquency, or individual act of supposed delinquency, in question.
Unauthenticity of the script purporting to be in the handwriting of the supposed delinquent. In the character of criminative evidences, besides the special and contingent infirmities to which they are respectively liable, the several mute evidences which compose the subject of this chapter have, as such, several infirmities in common:—1. The indications they afford are particularly apt to be incomplete.
By written evidence, to which it happens to be found in the possession of the supposed delinquent, the lights afforded may be to any degree broken, imperfect, inconclusive. From the intrinsic nature of these mute evidences, by which their criminative force is exposed to the opposition of so many infirmative facts, arises the question—a question that forces itself upon every rational mind,—these several possible infirmative facts, in the individual case in question, have they, or any of them, actually had place?
For filling up the above-mentioned deficiencies, for clearing up these last-mentioned doubts, the nature of things has provided one and the same natural and naturally efficacious instrument— interrogation. On this, as on all other occasions, the way to know is to inquire: a proposition that from the beginning of the world to the present day has never been a secret to any human being, unless it be to English lawyers. And of whom to inquire? Of whom, but of the one person in the world, who, if the fact be in existence, cannot fail to know of it?
The case in which the written evidence is confessorial, as compared with the case in which it is extraneous, here presents a difference. In the case of confessorial written evidence, the author of the writing and the possessor of it are but one person: there is not, therefore, of necessity more than one person of whom to inquire concerning it.
In the case of extraneous written evidence, there are at least two persons: the person in whose possession it is supposed to be, and the person whose writing it is supposed to be. These two at the least: add to whom in the case of a script purporting or supposed to be a transcript, or written from dictation, the original writer or dictator, on the one hand; the transcriber or amanuensis, on the other. In this case, the imperfect evidence, which to false science and blind prejudice has been the object of exclusive choice, is left by necessity in the character of the only receivable, because the only obtainable, evidence from that same source.
But, in the case of confessorial evidence, where the possessor of the evidence and the writer are one and the same person, if he be also the defendant, and in that character forthcoming, this first resource, the faculty of inquiring, remains accessible. On this same occasion, there remains in both the above cases yet another sort of person, who, when the process of inquiry is going on, ought not to pass unheeded.
This is the person, whosoever he may be in the ordinary course of things, an official person, by whose instrumentality the papers, which it was so much the interest of other persons to conceal, have been brought under the eye of justice. The papers produced in the character of criminative evidence, whether confessorial or extraneous, are all genuine. Be it so:—but the papers which thus are produced, are they all the papers that, in the character of evidence in relation to this same supposed delinquency, could have been produced?
These are criminative: but did the same possession, or any other within the reach of the searchers, afford no others that were exculpative? These are questions which common sense, in aid of common probity, cannot fail of pressing upon the minds of all parties concerned; but to which the system of English procedure affords no adequate and all-comprehensive means of obtaining answers. By the responsive testimony of the defendant, the existence of the criminative fact cannot be established, nor the clouds that hung over it be cleared up, because no man is to be compelled to accuse himself.
By the responsive judicial testimony of the same person, neither can the existence of any of the above-mentioned infirmative facts be established, nor the clouds that hung over it Edition: current; Page: [ 15 ] be cleared up; because no man is to be a witness in his own cause. If it were by a plaintiff in the cause that a mass of evidences—partly inculpative, partly infirmative with relation to the criminative facts, or in any other way exculpative—were discovered and made forthcoming,—he produces what he pleases, he suppresses what he pleases: master at the same time of an accusation and a defence,—he produces the accusation, he suppresses the defence.
Of these mischievous maxims, the breach is as notorious, and perhaps as extensive, as the observance, but, broken as they are, there remains force in them to do mischief in deplorable abundance, as well by their application to this topic, as to a multitude of others. When the appearance of things leads to wrong conclusions, the deceit will sometimes be the pure work of nature, at other times the work of human artifice.
The former case is exemplified but seldom; when it is, its birth may, in the language in use among naturalists, be ascribed to the play of nature. The irrational animals may be ranked, and to this purpose without injury, in the class of things. A case which, whether real or fictitious, is famous in the history of French jurisprudence, may serve for illustration to an English eye. There, as elsewhere, magpies have been remarked for a propensity to pick up and hide not food only, but other articles, though of a nature not applicable by these hoarders to any ascertainable use.
An innocent person was accused of stealing from the house of a neighbour several pieces of gold, and, being convicted, suffered an ignominious death. The real thief was a magpie, which, without the privity of its master, had taken the money at different times, piece by piece, from the too accessible hoard of a neighbour, and deposited it in a place inaccessible to any other than the unfortunate person who suffered as for stealing it. When the deceit is the work of art—has human artifice for its cause—it may be ranked with forgery: the act by which deceit is produced, or endeavoured to be produced, may be termed forgery of real evidence.
In another, though a nearly related, point of view, forgery of real evidence is to real evidence what subornation is to personal: it is an attempt to pervert and corrupt the nature of things, of real objects, and thus force them to speak false. Of themselves the things are silent, or, if they speak, speak to the inculpation of the defendant: by the force he applies, a thing that was silent is made to depose falsely—a thing that was speaking against him is either made to speak in his favour, or at least put to silence. As well in the case of real evidence as in the case of written evidence, forgery is susceptible of one main distinction—into fabricative and obliterative.
The case where, in the employment of expedients of this kind, the endeavour of the criminal is simply to remove the imputation from himself, without seeking to fasten it on anybody else, is as common as the other case is rare. Whatever be the crime, a main object of the endeavour of the criminal is of course to expunge, as effectually as possible, all traces of the commission of it. The hands, the garments of the murderer, have they received a stain from the blood of the deceased?
The most obvious reflection suggests the removing the stain from everything from which it can be removed, and the destroying or hiding anything from which it cannot be removed. To superinduce upon any object an appearance, the tendency of which shall be to disprove the commission of the crime,—whether by disproving the existence of the criminal act or some criminative circumstance, or by proving the existence of some justificative, or extenuative, or exemptive, circumstance;—an artifice of this tendency would suppose an ulterior degree of refinement, and would come under the denomination of fabricative forgery of real evidence.
As it is only through the medium of physical facts that psychological facts can be brought to view, it is, consequently, through the medium of physical facts alone, that any deceptitious representation of psychological facts can be conveyed. Physical facts alone, and not psychological facts, are the only one of the two sorts of facts upon and in respect of which forgery can, properly speaking, be committed—to which the operations indicated by the term forgery can bear any direct and immediate application.
As to physical facts; although, among the several modifications of which real evidence of the evanescent kind is susceptible—evidence consisting of motions, sounds, colours, Edition: current; Page: [ 16 ] smells, tastes, and if the word may be used touches, —there is not perhaps a single article that has not, at one time or other, been taken for the subject of that sort of deceptitious operation which, applied to other subjects, has received the name of forgery; yet it is among the modifications of permanent real evidence that we are to look for that modification of forgery which is most in use, most readily apprehended, and most apt to present itself under that name.
The beautiful history of the patriarch Joseph will afford us one exemplication of forgery respecting real evidence. Preparatory to the affectionate forgiveness he meditated to extend to his brethren, his plan required that an alarm should be raised in their guilty bosoms—an apprehension of being punished, not indeed for the barbarity of which he had formerly been the victim, but for a supposed offence of recent date, of which they were altogether innocent.
In this view it was, that, into one of the sacks that had been filled with the corn which they had been buying, he caused a cup to be introduced, which, not having bought it, they had never meant to take. Here then we have an example of forgery of real evidence of theft—forgery of real evidence of the permanent kind—forgery of evidence presented by the permanent situation of a certain material object, a certain real body, principal object and subject-matter of the supposed theft, the imputation of which it was intended thus to fix upon them, though for a time only, and for a generous and friendly purpose.
Another example may be afforded by the modern case of Captain Donnellan. The smell afforded by the laurel-water, the poison supposed to have been employed by him as the instrument of death,—this important phenomenon, susceptible of permanence in respect of the substance itself and its odorous power, evanescent when considered in respect of the sensations of which, on any given occasion, it might have been productive,—was, at any rate so long as the phial continued impregnated with it, a lot of real evidence—a lot of evidence indicative, at once, of the physical act by which the poison was applied to the organs of the patient; of the intention, the murderous intention, in pursuance of which these acts were performed; and of the criminal consciousness with which that intention was accompanied.
Conscious of all these facts, as well as of the punishment annexed by law to such crimes, Donnellan, on observing how the phial had become the subject of observation, took it up, and, with the apparent view of doing away the instructive smell, poured water into it, and rinsed it out. The forgery thus actually committed was of the kind that has been distinguished by the name of obliterative.
In the case where guilt, guilt on the part of the forger, really exists,—the inculpative fact, of which the act in question operates as evidence, is a psychological fact—the existence of culpable consciousness—consciousness that the act, whereby the effect is intended to be produced, is of the number of those which stand proscribed by one at least of the two guardian sanctions, the political and the moral, if not by both.
The presumption thus afforded by this species of circumstantial evidence—the presumption of correspondent delinquency—is obviously a strong one; it is, however, far from being a conclusive one. Cases, supposable cases, are not wanting, in which supposing them realized the failure of the presumption, the erroneousness of the inference, will be obvious and indisputable; nor are instances wanting in which these several supposable cases have been exemplified in real life.
Forgery exculpative in self-defence against a false accusation; forgery having for its object the removal of appearances tending to fasten the imputation of delinquency upon an individual really innocent. The party in question being innocent,—suppose at the same time a number of natural appearances tending to induce a persuasion of his being guilty.
Take away the pre-existing source of deception, the forgery in question is true evidence of guilt: add the pre-existing source of deception, the forgery by which the deception from this source is endeavoured to be done away, is, in the character of evidence of guilt, fallacious. No system of established procedure is yet known that does not afford instances—instances in greater numbers than an eye of sensibility can contemplate without concern and apprehension—where individuals, really innocent, have sunk under a load of imputation heaped upon them by fallacious circumstantial evidence.
Suppose an article of this description, pregnant with false inferences,—an article exhibiting appearances susceptible of permanence:—the dagger employed by a murderer, conveved into the pocket of an innocent man; one garment of an innocent man stained, by design or accident, with blood from the body of a man who has been murdered. Suppose the innocent man detected in his endeavours to rid himself of the dagger, to wash away the blood: the dagger, the blood, fallacious as they are, are, notwithstanding, evidence: these endeavours, innocent as they are, Edition: current; Page: [ 17 ] will accordingly be, in appearance at any rate, and in a certain sense in reality, forgery of real evidence.
The case of the unfortunate Calas affords an exemplification of more than one of the incidents by which the conclusiveness of an inculpative presumption may be proved. A son of his had received a violent death from his own hands: the father was brought to trial on a charge of murdering the son. As far as the confusion of mind into which he was plunged permitted, he had obliterated or changed some of the appearances about the body of the deceased, and other circumjacent bodies: here was forgery of real evidence. She utilizes a disciplined imagination to reread the interview transcripts with girls and their families that led to the black sociologist E.
With her explicit attention to sexualized violation and its impact on the psyches of black girls, Simmons reminds us of a point that Ida B.
A Beautiful Pageant
Wells made forcefully in her antilynching treatise, Southern Horrors : black girls were key, yet often overlooked, witnesses to southern violence. Catcalls, touching, and insults were regular threats and encroachments that they were expected to tolerate and accept in the course of growing up. To consider black girls as full human beings, we need to understand their pleasures just as much as their pains. Not only do they attend to the role of black girls—both as real persons and imagined figures—in the larger processes of migration and segregation, they also boldly and instructively reject silence and invisibility as the final words on black girls and girlhood.
In writing that is accessible and conceptually generative, both books demonstrate not only that black girls existed, but that they mattered—an important challenge to the implicit and ongoing view that girlhood is a whites-only space. Her current research project examines the rise of new womanhood as an alternative femininity and its impact on the visions of key feminist Progressive Era social reformers.
She has also collaborated with Timothy Corrigan on foundational texts such as The Film Experience and edited essays and lectures by the film scholar Teresa de Lauretis in Figures of Resistance: Essays in Feminist Theory White has assembled a book that has applicability beyond the academy and could be read, in part or whole, by an array of people working in independent film production and exhibition.
Even more to the point: the films she studies are brilliant. Add them to your queues. White points out that, like feminism itself, such troubles are neither simple nor singular. Nor is trouble the entire story. Globally, women are making films in greater and greater numbers, and new forms of distribution are opening up more channels of circulation.
Likewise, the need for more women media makers has garnered increasing coverage in mainstream North American media, in Oscar speeches, and in social awareness campaigns such as AskHerMore or DirectedByWomen. With all of this in mind, White embarks on an ambitious global journey to create a canon of emerging women directors within a few key parameters.
She devotes a chapter to each. To illustrate: imagine an Oscar-nominated foreign language film in which bridesmaids suffer war crimes, and in which the director, who is telling her life story, also stars. In keeping with world cinema scholarship, White does not let geography alone dictate the organization of her case studies; she nimbly crosses borders to compare and contrast films based on her own criteria. Filmmakers from continental Africa are missing, as is an accounting for their absence. The few references to African films focus on North Africa; the one comment on sub-Saharan cinema, in the introduction, leaves me curious and wanting more.
White writes,. At least a dozen of the films I watched in preparation for reading the book include images, locations, or storylines that were wholly new to me—and unforgettable. And I watch a lot of movies. Netflix has me pegged as someone who should read more! Both feature the stunning Magaly Solier as protagonist, in one case as the town virgin for a religious celebration in which sin does not exist, and in the other as an enigmatic young woman who keeps a potato in her vagina to protect herself from sexual violence.
Yet her main characters veer off scripts that typically garner sympathy. You could take a weekend, binge-watch all the films by one of these filmmakers if you can find them: I recommend interlibrary loan and a lot of patience , and then sit down and read what White has to say. Which filmmaker to choose? There is no wrong turn.
Take Care of My Cat is about five female friends who try to stay connected as they transition from school age to adulthood. She makes particularly effective use of frame captures which differ from the still photographs offered in press kits by film distributors. In one, Jeong splits the screen into four panels, showing all five friends talking on their phones; two others show text messages being composed and received as title overlays.
Reading it reminded me why I considered pursuing an academic career and then, weighed down by I thought would be too narrow a scope, I ventured in a different possibly also too-narrow direction. My work in independent film journalism and exhibition has been held back by the very terms White describes.
Erin Trahan has worked in film exhibition, production, and journalism for more than 10 years. She currently edits The Independent www. Randolph, an associate professor of history and Afroamerican studies at the University of Michigan, has done an important service for anyone who cares about fashioning a complete and complex record of post-World War II feminist activism.
Flo Kennedy was a vivid television presence in the s, and remembering her image, I looked her up on YouTube. This kind of paltry digital legacy confirms the need for biographies of important and heretofore understudied feminist figures such as Kennedy.
As Randolph shows, Kennedy was a relentlessly political person, a constant organizer who was nonetheless better at catalyzing organizations than sustaining them. In Los Angeles, Kennedy, then nine years old, experienced a reprieve from harsh winters and harsh racism. During a struggle with angry whites, Kennedy was yanked off a stool so hard that she suffered a spinal dislocation, the effects of which would be with her for the rest of her life.
In , Kennedy took a vacation to visit her sister in New York City and stayed, attracted by the opportunities the city offered. The gender issues raised by her courses inspired her. She wanted to become a lawyer, but was initially rejected from Columbia Law School. Kennedy left her husband and never married again—committing herself to activism instead.
Despite these personal and professional losses, Kennedy began to make a name for herself as an attorney. She held parties and salon-like events in her apartment for left-wingers like herself, who believed that racism, classism, and US imperialism were linked. Her arrest in her own neighborhood in by police suspicious of her as a black woman only hardened her radical principles.
With her view of linked oppressions, Kennedy argued that the nascent National Organization for Women NOW should ally itself with the black power movement—but not surprisingly, she was rebuffed. Such rejections did not stop Kennedy from continuing to advocate what we would now call an intersectional view of liberation. Given this activist milieu, Kennedy was seldom successful in making the links among organizations that she wished to see. How Long? Kennedy was not exactly the kind of bridge leader that Robnett envisioned: she was both a behind-the-scenes go-between and a very public spokesperson.
- Ring for Murder (The Lighthouse Inn Mysteries Book 7)?
- A Beautiful Pageant;
- Confessions of a REAL Lady.
- Siate liberi (Italian Edition)?
- Meridiana: the Adventures of Three Englishmen and Three Russians in South Africa by Jules Verne (Illustrated) ;
- The Journal of Negro History, Volume 1, January 1916 eBook;
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However, despite her high profile as a black feminist, Kennedy ultimately came to feel that white feminists were not ready for true coalitional politics. She did not turn her back on feminist politics, however; in fact, she played a catalyzing role in the formation of the National Black Feminist Organization NBFO in —although her involvement in that group was short lived, and she soon moved on to other political projects. The result is a kaleidoscopic portrait of the activist. A growing literature shows that, contrary to the pop-culture stereotype, radical activists maintain their radicalism over time.
It would have been instructive to know more about what Kennedy thought of the aftermath of s and s protest mobilizations. I also wish Randolph had considered, in theoretical terms, why Kennedy was such an individualist in her activism, so unwilling to be beholden to any one group, so accepting, it seems, of being a perpetual outsider to the organizations that she touched. All in all, Randolph has written an extremely useful biography for those seeking to understand the bundle of energy, style, humor, and smarts that was Flo Kennedy.
The book is also a good entry into understanding the tumult of left protest politics in the s and s. Knopf, , pp. Most gyms and community centers offer yoga. Alternatively, you can download a podcast, pull on your tights, and do some yoga at home. And next to those shelves are a growing number of books that cast a skeptical eye on the practice, including histories of individual scandals and recent investigations into yoga-related injuries and deaths.
Yoga cynicism is on the rise, and for good reasons. In The Goddess Pose , the journalist Michelle Goldberg argues that yoga was never pure or uncorrupted. In each section, she places Devi in her cultural and historical context, which is no small feat. This situation presents advantages and challenges to her biographer. When Eugenia was eighteen, the Bolsheviks staged their coup and the country plunged into civil war. Her mother, who was separated from her father, lost everything.
Along with many other White Russian immigrants, they ended up in Berlin in —the year Hitler first tried to overthrow the Weimar Republic. During these years, Eugenia experienced various hardships—hunger, jail, anxiety, and heartbreak—but Goldberg can only imagine how her subject must have felt. She was enchanted. After her trip, she broke off her engagement, sold her belongings, and sailed back, with enough money for only a few months and no concrete plans. After a short career in Indian cinema, acceptance into fashionable Indian society, and marriage to a Bombay-based Czech diplomat, she began to suffer from depression and severe anxiety.
From its origins in classical Indian yogic philosophy and the physical yoga developed by medieval Hindu ascetics, modern yoga underwent reinvention during the late nineteenth century. For those who sought independence from their British colonizers, hatha yoga presented an authentically Indian form of physical culture, and several notable figures helped to foster a hatha yoga renaissance in India, including Sri Krishnamacharya, an innovator who drew from Indian philosophy, Nepalese yoga, and the gymnastic tradition of Mysore Palace as well as, most likely, the Danish in his development of a dynamic and flowing form of yoga intended for young boys.
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When her husband was transferred to Shanghai, Krishnamacharya charged her with bringing yoga to the rest of the world—providing the seed for her incarnation into Indra Devi, the teacher who began her career instructing expats during the Japanese occupation of China and continued, after World War II and her marriage ended, in Los Angeles. In the US, Devi started over—without a job, family, or connections.
Yet she could not have picked a better place than southern California, ground zero for the emerging New Age culture. Devi opened the first yoga studio in Los Angeles, and her fame began to build. Over the course of her life, Devi developed a detachment that looked, to some, like callousness; after her second husband, Sigfrid Knauer, suffered from a series of strokes, she refused to care for him. When she was 85, a rock star invited her to Argentina, and she moved to Buenos Aires, where she founded a yoga school; for years after this, she continued to travel.
As global interest in yoga exploded, she became known for her youthful spirit and energy. She died in , at age Most yoga today is far more physically challenging than what Devi taught; it originates from the teachings and innovations of other yogis. Whose needs it meets, and whose it does not, may be its as-yet unwritten story. Donate Now. June Scholars investigate how Black women and girls cope with sexual violence and whether MeToo reflects their experiences. Women's Review of Books.
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Part of what scholars and game makers must be more willing to embrace is that the text alone does not define how the player interacts or connects with the characters or avatars. Subjective reasons for play and personal preferences drive the very personal experiences of identifications much more than the textual elements can. Although transphobia is an everyday reality for many in real life, I doubt that the game designers were trying to highlight and critique its pervasiveness.
In other words, whose fantasy are we working with, here? A Family Recipe. Children cannot be forced to make pictures like these: mine gave them to me. As critics, journalists, and the curious public bore down on our family, we began to understand that our family recipe was not from the cookbook of mainstream America. The ingredients in our work were exotic and the instructions complex. But in the end, as our own marble cake has emerged, swirled with dark confusion and light with angel food transcendence, the answer is Yes.
Yes, and yes, resoundingly, absolutely, we would do it all over knowing what we know now. Where does the self actually go? All the accumulation of memory—the mist rising from the river and the birth of children and the flying tails of the Arabians in the field—and all the arcane formulas, the passwords, the poultice recipes, the Latin names of trees, the location of the safe deposit key, the complex skills to repair and build and grow and harvest—when someone dies, where does it all go? In general, I am past taking pictures for the sake of seeing how things look in a photograph, although sometimes, for fun, I still do that.