date

5 July 1803 Evidence Written
5 July 1803

Evidence

Written

§.3 Rules

Under the English law, dreadful indeed, (if this species of evidence were not received,) would be the condition of the trader, if this species of evidence were not received. Under the same law the masters own evidence would not be received: (since, according to the general rule no man's evidence is received in his own behalf, and of /among/ the numerous list of exceptions this case is not one.) It is not received in the ordinary viva voce form subject to examination it is not received in the form of written extrajudicial evidence - the form it wears when the entries are made under the master's own hand in the master's own books. If /thus stood/ the law stood thus, a man's title to the whole mass of [...?] moneys owed /owing/ to him would depend upon the lives of the servants respectively privy to the respective transactions between him and his debtors: were the law universally known to stand thus, all dishonest debtors would look upon the death of the bookkeeper /journeyman/ by whom the goods had been delivered to them in the shop or the porter by whom they had been delivered out of the Shop, as tantamount to a receit[?] for their respective debts. All credit would be at an end: trade could not /scarcely/ be carried on otherwise than for ready money: the value of the risk a man /trader/ run by the death of his servant /journeyman/ would be greater than the present average amount say the 15 per cent per annum of the profit of trade. The rate of profit upon all goods would require to be increased accordingly. But the corruption of morals by the irresistible /premium/ encouragement given to dishonesty - an encouragement the receipt of which would become frequent and notorious /abundantly and notoriously exemplified would be extreme: is/ said to have sometimes/ said to have happened in some instances by a power /an occult/ in the political body parallell to what is called vis[?] medicatri[?] natura[?] of the physical body arise[?] at the command of necessity an extraordinary degree of vigour on the popular or moral sanction should supply the fill up the gap occasioned by the deposition[?] of the force of the political sanction. But before the mischief had come to any such pass, legislative authority could not but interfere /step in/, and either simply rescind the common law rule, or obviate /moderate/ the mischief of it by the institution of some species /modification/ of pre-appointed evidence
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  • Title: [10 July 1804 Procedure & Evidence]
    Description: 10 July 1804

    Procedure & Evidence

    Note

    Evils causes

    Intricacy

    The causes /suits/ by far the most common of any are as follows

    1. In the superior criminal class /department of procedure/ - theft - with or without the circumstances of aggravation which it ----- it ---- robbery housebreaking or burglary. Among crimes punished by the English law with the -- mode if ---- called felony, unclergyable or clergyable, the number of individual crimes of the above description committed in a year is at least 7 /20 or 10/ times as great as that of all other felonious crimes put together.

    2. In the inferior criminal or penal class /department/ - assault - (or injurious words spoken or written the number of individual offences of this description taking into account those prosecuted for in what is called the civil mode as well as those prosecuted for in what is called the criminal mode would probably found superior to all other offences under the ---- of felony prosecutable for one or other of those modes.

    3. In the non-penal class /department/ debt for goods sold or for money lent on a bill or note of hand and delivered by a shop-keeper to a consumer, the number of these suits commenced could perhaps be found 30, 40 or 80 times as great as that of all other non-penal causes put together But in each of /every one/ of these species of causes the case is most commonly at the utmost or very near the utmost point /pitch/ of simplicity.

    1. In the case of theft there is frequently no more than a single witness the owner of the good alleged to be stolen, or suppose another or two to be added the complexity thereby added to the case is, in respect of the additional quantity of time thereby required by the operation of which the evidence is the subject matter, too inconsiderable to be worth taking into the account /noting for this purpose/.

    2. In the case of assaults and verbal injuries the same observations apply without any difference worth insisting on.

    3. In the case of goods sold and delivered to a consumer upon credit, if at the shop, there will be the master shop-keeper if his testimony be admitted or at any rate his journey-man: if delivered elsewhere, the porter with or without the corresponding evidence derived from the evidence of the Book-keeper confirmed and ----ed by the ---- of his books
  • Title: [17 May 1804 Evidence Forthcomingness]
    Description: 17 May 1804

    Evidence

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    3. Rule 3. In relation to each individual cause power of ultimate decision ought to be lodged in the same hands as those in which power of investigational procedure is lodged in relation to the same cause: and vice versâ.

    More briefly these -

    Powers of ultimate decision and power of investigatorial procedure ought to be lodged in the same hands.

    Reasons - Reason 1. If all the evidence which the transaction furnishes happens to be present /forthcoming/ at the first hearing, let the Judge, who on that occasion receives the evidence, be competent to decide, the decision may be, and (saving the case of a demand of time for deliberation) ought to be pronounced. Vexation, expense and delay all unnecessary and useless will in that case be the inseparable results of any subsequent hearing. But if the judge who is competent to receive the evidence in the first instance is not competent to decide upon it, there must in all cases be at least two hearings, of which one at least is /can not but be/ productive of the useless inconveniences just mentioned.

    N.B. The cases in which the inconvenience in question would take place promise /appear/ to be by far the greater number. For in every country in by far the greater number of causes at present brought into a Court of Justice the right is clear, the evidence known and simple. Debt proved by a Bond /Bill of Exchange/ or title of land in possession of the plaintiff. Debt for goods as sold and delivered by a shop-keeper: evidence the testimony of his journeyman or porter. Battery proved by the person beaten with or without testimony of a witness or witnesses whom he brings with him. Theft /Depredation/ committed by a thief on a house or shop evidence the testimony of the person who caught the thief in the act, with the goods upon him.
  • Title: [18 June 1803 Evidence Written]
    Description: 18 June 1803

    Evidence

    Written

    V. Case the fifth: case of witnesses compleatly impartial: connected with neither of the parties by any special tie of any sort.

    On the ground of utility, the provision called for by this case, (supposing the existence or non-existence of it capable of being established) which it is not, if being ascertained would be still the same: though in the one state of things the demand /cause/ for rejection would not be quite so forcible: in the other the danger of deceit in case of admission would not be quite so great.

    The testimony is varacious at least as far as it goes: but because it is varacious, i.e: not mendacious, it follows not that it is either correct or compleat. By vivà voce examination including cross-examination, a /mass of/ /pick[?] of/ testimony to the same effect would have acquired its best chance for /security for the possession of/ both those[?] qualities: bereft of that advantage, it must take its chance.

    In this ideal /[...?]/ case however, supposing it could be verified, and at the same time known to be verified, what is manifest enough is - that in the one state of things it /the species of evidence in question/ might be admitted with much less scruple than in any of the four ordinary cases which go before it. admitted as well where the preferable species of testimony is obtainable, as where that superior species being unobtainable, this inferior species is the sole resource. It is so in general, in the case of pre-appointed official evidence.

    As to actual law - in English jurisprudence, evidence [...?] in this shape from a witness thus circumstanced - from a witness exempt from the action of every visible cause of partiality - could hardly be rejected /refused to be received/, at the period at which evidence of this stamp is received from a naturally partial weakness. But positive opinion in this case is hazardous, since the reason on which the admission of the evidence has been grounded in the case of the naturally partial witness, does not extend to the impartial. Where the post mortuary written evidence has been received, the reason has been - that the entry [...?] the memorandum - has been in the ordinary course of business: viz: in the course of that business which it comes in the way of the witness to transact in consequence of the more or less intimate connection and dependance created by the particular relation he stood in towards one of the parties in the cause.