date

29 June 1803 Evidence Written
29 June 1803

Evidence

Written

ยง.3. Rules

After this indication the subject /way/ seems already prepared for the exhibition of /the reception of/ leading[?] rules: the reasons of which will be unfolded in due course.

Rule 1. On the single score /ground/ of rectitude of decision - i:e: setting aside the regard due to the prevention of delay vexation and expence[?] - testimony /evidence/ of this kind, being unsanctioned and unscrutinized ought in no case to be admitted, where the witness or supposed witness is forthcoming on a condition /known to be forthcoming at any time,/ to have his testimony sanctioned and scrutinized in whatever is predetermined /has been determined/ to be in his case the proper mode. Reason briefly indicated - 1. Inferior evidence would /not to/ be preferred to superior. 2. Danger from the characteristic fraud.

Rule 2. In this case of any class of witnesses, supposing there to be any such class, in whose /of which/ instance it is predetermined that their testimony may, without any danger worth regarding on this ground, be admitted, although it be without the security of afforded against mendacity and incorrectness by the generally established system of sanction and scrutiny, such testimony may accordingly be admitted in the first instance, on the ground of a saving in point of delay, vexation and expence: subject always to sanction and scrutiny, in case of reasonable and special cause of suspicion shown in respect either of mendacity or incorrectness. - On this ground is to be justified, so far as it is to be justified, the exemption from sanctionment and scrutiny, established in the case of pre-appointed official evidence. See the Chapter on that subject. Reason briefly indicated - absence of the ordinary causes o mendacity and incorrectness.

Rule 3. Where it is ascertained[?] that the witness or supposed witness can not at any future time be by any possibility be forthcoming for the purpose of sanctionment and scrutiny - (viz: in the case of death or what to this purpose is tantamount to death incurable insanity to a degree rendering him incapable of examination) this species of evidence ought to be admitted: supposing it not to stand excluded by a degree of disadvantage in respect of probable delay, vexation and expence, more than equivalent to the advantage in respect of rectitude of decision, consideration being had of the degree of its relevancy and importance and subject of course to whatever observations it stands exposed to on the ground of /on the score of/ interest and all other grounds of suspicion. [...?] Briefly indicated. The witness being a party to the suit, Fraud not to be presumed: mendacity not so common as veracity: deception by mendacity, if attempted, more likely to fail than to succeed /prevail/ against the causes of suspicion motivated by the instructions. Absence of expectation of profit to be reaped by the characteristic fraud; the falshood not being capable of producing its advantageous consequences /profit/ till the author is no longer in a condition to reap it /the profit/. The witness [...?] [...?] a party. Uncertainty of the time of reaping the profit from the submission[?]: the disgrace and punishment impending all the time,
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  • Title: [5 June 1803 Evidence Instructions]
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    2. Second class of Cases - where in a /each/ pair of contrasted species of evidence the distinction turns not upon the form or mode of exhibition a circumstance variable at the pleasure /command/of the legislator, but upon substance - upon the unchangeable nature of the evidence itself.

    1. Comparison the first /fourth/. Evidence at first hand with Hearsay Evidence. The superiority of first hand evidence our hearsay evidence of even the first remove, and a fortiori of any /every/ ulterior remove stands upon ground of the same sort with the superiority of original over transcriptitious evidence in the particular case of written evidence: upon ground of the same sort /like texture/, but upon much clearer and stronger ground. Mendacity apart, in the case of transcriptitious written evidence, the sole /only/ efficient cause of uncorrectness /aberration/ to the influence /action/ of which it is exposed is a deficiency /failure/, in point of attention: in the case of hearsay evidence, the same cause operates with augmented force, with the addition of another very powerful cause - failure in point of memory; a cause, the force of which goes on encreasing ad infinitum with the distance in point of time between the hearing of the supposed extrajudicial statement or narrative, and the repetition supposed to be made or said to be made of it for the purposes of justice.

    Thus much upon the ground of simple incorrectness: a ground which of itself is amply sufficient to warrant the decided and invariable /neverfailing/ superiority of first-hand over the best possible modification of hearsay evidence.

    On the ground of mendacity and fraud, the persuasive force of hearsay evidence stands exposed to further defalcations. But these together with other matter relative to hearsay evidence /the form and application/ will form the subject of a chapter bearing the name of that species of evidence for its title.

    The choice as between Evidence at first hand and hearsay evidence depends (it may be said /objected/) upon the legislator in this case as well as in the three former ones: inasmuch for where the percipient witness is forthcoming, it depends upon the legislator either to insist upon his coming forward in the character of a deposing witness, or to accept of his testimony i:e: of what passes for his testimony, through the medium of another person who in such case takes upon himself the function of a deposing witness. This much can not be disputed: but in this case, the question turns not upon the form but upon the very substance of the evidence. The question is not in what form the evidence /testimony/ of a given witness shall be exhibited, but whether in a case where the testimony of a single witness would be the best it shall be weakened in this way by the [...?] /substitution//addition/ of a second witness /an unnecessary witness or a necessary one/.
  • Title: [26 Sept. 1803 Evidence Instructions]
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    1. In the case of hearsay evidence, against the characteristic fraud, the same precautions /vigilance/ will be requisite on the part of the Judge as in the case of written casual evidence. And moreover to this danger is added that of unintentional incorrectness in the relation /statement/ given by the deposing witness of the discourse supposed to have been uttered in his presence by the supposed percipient witness.

    2. In the case of hearsay evidence of more than one remove the Judge will of course resort at once to the supposed percipient witness the correspondence /the attention of the Judge and through him of the parties/ will of course be directed at once to the supposed percipient witness. Should he be at home and forthcoming, the occasion for applying to any intermediately reporting witness or witnesses will of course cease. Should he be be in foreign parts, every thing that relates to the provisional admission of his evidence and to the purification of it applies to this case in the same manner as to that where between the deposing witness and the supposed percipient witness there is no supposition of any intermediate witness /pen or tongue/.
  • Title: [[...?] 1803 Evidence Circums]
    Description: [...?] 1803

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    Circumstantial evidence in [...?] temporis, precedential or subsequential.

    Circumstantial evidence grounded on the supposition of a Theocracy or particular providence.

    In times now [...?], different contrivances were imagined and what is more employed for calling in /obtaining the services of/ God Almighty in the character of a witness. The Evidence thus sought for, belongs to the head of scientific evidence: and admitting it were to be had, can not be denied /must evidently be admitted/ to be the best evidence.

    Supposing it obtained, the shape in which it was expected to be obtained belongs to the head of circumstantial evidence. It was not direct. God Almighty /The witness/ was not expected to appear in court: his testimony was to be made out in the way of inference, from /it consisted[?] of/ the real evidence afforded by his actions, by his deportment: by the part he took in relation to the business: it was not expected to contain any specifications in respect of time or place: it was analogous in this respect to generally confessional evidence: it was a sort of generally attestative[?] evidence - attestative in general terms.

    For putting the question to God Almighty /this species of witness/ various modes of interrogation have been in use in various nations as also in the same nation, on different occasions. The most celebrated are 1. Wager of Battel 2. Ordeal &c Corsned &c. 3 Lot.

    Shew the train of ratiocination in the case of Wager of Battel, and the other cases. Then go on to say.

    Of these several modes of interrogation by far the most unexceptionable was that of lot: supposing it to be conducted without fraud. NO blood shed, no murder as in case of wager of battel. No poisoning /murder by poisons or other instruments/ under the veil of law and religion, as in case of the corsned or other ordeal, where it was predetermined that the evidence of the almighty /omniscient/ witness should be on the criminative side: /put into the criminative scale of this ballance:/ no imposture and corrupt breach of judicial official trust as in the case where it was predetermined that the evidence /testimony/ of the same unexceptionably veracious and decisive witness /evidence/ should be on the exculpative side.

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    Note

    The authority exercised by man over his maker is /has been/ unbounded. Jealousy, capricious haughty malevolent without provocation, He creates him after his own image: by promissory oaths o all kinds he has made him act in the character of an [...?] Executioner adopt and execute upon delinquents all human laws. By supernatural modes of trial, or rather of attestation, he makes /forces/ him to give decisive evidence in all cases.