074_316.xml

Title: [20 May 1804 Evidence Forthcomingness]

Description: 20 May 1804

Evidence

Forthcomingness

Ch Investigatorial

§ 5 Rules 4 & 5

Ask which is likely to give occasion to the greatest mass of vexation, expense and delay - the evidence of a human witness obtained in the first instance, or the evidence of a witness continues in the first instance, obtained through a chain of indicative evidence, the answer is [...?] - the mass of inconvenience can not but be greater /greatest/ in this latter case.

But from this observation no just conclusion can be drawn, prohibiting /pronouncing/ on any particular sort of cause, a peremptory prohibition, upon the recourse to investigatorial procedure. The goodness of the bargain will in any sort of cause, and in every individual cause always depend upon the ratio between the inconvenience of collateral injustice on the one part, and that of indirect injustice on the other. And in the formation of this ratio, the difference between indicative and ultimate evidence - between investigatorial procedure, and procedure testibus cognitis, will occupy - it can not be said no share at all - but in comparison with other circumstances but an inconsiderable share. One lot of ultimately applicable evidence obtained by investigatorial procedure - the testimony of one principal witness - the contents of a single deed or letter, may be obtained in the way of investigatorial procedure - obtained through the medium of a single hearsay witness, who heard what the principal witness said of the transaction or who saw the deed or the letter in some other hand - may supersede and render useless the evidence of a multitude of known witnessess or known papers speaking /applying/ not to speaking the main fact but in the character of circumstantial evidence, speaking to so many different evidentiary facts, more or less remote and inconclusive.

074_361.xml

Title: [15 May 1804 Evidence Forthcomingness]

Description: 15 May 1804

Evidence

Forthcomingness

Ch Investigatorial

Romano Gallic

In causes of different complexions, I find frequent instances, where, after one budget of evidence has been collected, the cause is opened again for the reception of another. As often as this has happened, it is possible and natural enough, that a lot of evidence included in a first batch has /shall//may/ have in the character of indicative evidence, have served for the discovery of this or that lot that came to be included in the next. But this is a sort of information equally apt to result /be afforded/ by the best evidence as by the worst: by that which is most fit to serve for grounding a decision, and by that which is most compleatly unfit for being made any such use of /any such use/. And as no evidence is /seems/ too bad to be at least received in the character of ultimate evidence (whatever regard may come to be paid to it) the occasion does not take place for noting any such distinction as that between a sort of evidence which is fit to be received to help ground a decision in the character of ultimate evidence and that which is not fit to be received in any other character than that of indicative evidence.

As to the promiscuous reception of regular and makeshift evidence in the character of ultimate evidence: in the trial of the Calas s[?] at Toulouse, I observe hearsay evidence at so great a distance as the 5 the remove received and put upon the same line with immediate evidence. In other quarters the imbecility of this species of evidence does not indeed appear to have passed unobserved: but the blame attached /applied/ upon the Judges in that case appears to have been attached not upon the admission given to it, but upon the attention shewn to it. No notice appears to have been taken by other observers how perfectly unexceptional and serviceable this same wretched evidence wretched and scandalous in the character of indicative evidence. No care appears to have been taken either by the Judges or by the public prosecutor, to step from point to point in the chain /proceed from link to link in the chain/ of reporters, till the immediately percipient witness himself, or the falsity of the report which had spoken of Paul or Peter in that character had been brought to light.

074_315.xml

Title: [20 May 1804 Evidence Forthcomingness]

Description: 20 May 1804

Evidence

Forthcomingness

Ch Investigatorial

§.5. Rule 4 & 5.

Rule 4. In each individual cause, whether investigatorial power shall /ought to/ be exercised, and how far, depends upon the degree of collateral inconvenience in the shape of vexation, expense and delay, compared with the danger /probable mischief/ of direct injustice, viz: as deprading the importance of the cause, and the importance of the evidence to the cause.

Reason. In the character of a proposition to be proved, or rather or an axiom too manifestly reasonable to admitt of proof, this observation has already brought to view as applicable to evidence howsoever circumstanced, in the Books on the subject of the exclusion of evidence. +

An observation obvious enough, yet not too obvious to be of use is, that upon an abstract view of the investigatorial procedure on the one hand and procedure probationibus[?] cognitis prècognitis on the other, to obtain a lot of evidence fit to be included in the budget of ultimate evidence will in general cost more collateral inconvenience in the shape of vexation, expense and delay, when obtained in the way of investigatorial procedure than when obtained in the way of procedure probationibus cognitis /precognitis/ - why? because to obtain /by the supposition, for obtaining/ a lot of evidence from a source of evidence already known as such, a single examination, the examination of that source of evidence, is all that the case admitts of whereas in proceeding for the discovery of that same source of evidence though the medium of indicative evidence, devious examinations, to be performed upon a number of witnesses or other sources of evidence not capable of being exactly limited may be necessary to be performed.

+ B. Exclusion proper Ch.