date

17 May 1804 Evidence Forthcomingness
17 May 1804

Evidence

Forthcomingness

Ch. Investigatorial

§.3. Rule 1 & 2

Rule 1. Investigatorial procedure ought to be made applicable to every sort of cause.

Reasons.

1. The Circumstance by which the demand for investigatorial procedure is constituted is a circumstance alltogether foreign to the nature of the cause. Penal or non-penal, it is alike incident to every sort of cause: as likely to take place in one sort of cause as in another.

2. The reason for compelling the evidence of an indicative witness, through whom alone an ultimate witness can be discovered and made known stands on exactly the same footing as the reason for compelling the evidence of the ultimate witness. In which ever instance, power for that purpose be denied /refused/, the probability or certainty, or failure of justice, or undue decision, as the case may be, is the same.

3. In the case of a source of real or written evidence, it has already been shewn /is sufficiently manifest/, that without an unlimited fund of investigatorial power, evidence of this sort may be shifted from hand to hand without end, and supposing a lot of evidence of this description necessary to substantiate the plaintiff/s claim, or the defendants defence, in /for/ whatever time the hearing of the cause is fixed, he may be sure to lose it, for want of the evidence thus kept back.

4. Take away the investigatorial power in question, the party having need of the evidence the lot of indicative evidence in question is altogether at the mercy of the individual on whom it depends whether or not the indicative evidence in question shall be exhibited /one individual from whom, by reason of [...?] to one party, favour to another, or caprice, or indolence, the obtaining of it may be altogether hopeless/: exactly as much as if the power of commanding the exhibition of the lot of ultimate evidence in question or any other lot of ultimate evidence were in like manner taken away. Add again the investigatorial power, the dependence of the party is no longer upon the favour of an individual, but upon the justice of his cause.
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  • Title: [17 May 1804 Evidence Forthcomingness]
    Description: 17 May 1804

    Evidence

    Forthcomingness

    Ch. Investigatorial

    §.2. Rules

    These observations being premised, five rules present themselves as being sufficiently intelligible without further preparation. As far as any observations in the character of reasons seem capable of being of worth subjoining, they will accordingly be subjoined.

    Rule 1. Investigatorial procedure ought to be made applicable to every sort of cause.

    2. Power of investigatorial procedure ought to be possessed and exercised by every Court of Justice.

    Rule 3. In and for each individual cause, power of investigatorial power and power of ultimate decision ought to be lodged in the same hands

    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 investigatorial procedure is lodged in relation to the same cause: and vice versâ.

    Rule 4. In each individual cause, whether investigatorial power shall be exercised, and how far depends upon the degree of vexation, expense and delay attending /attendant on/ the investigation, compared with the importance of the cause, and the importance of the evidence of the question to the cause

    Rule 5. Purely indicative evidence, though it ought not to be received into the budget of ultimate evidence, where the purport of the ultimately applicable evidence indicated by it is conformable to the indication so given, ought however to be preserved, for the purpose of being confronted with it in case of contradiction /disconformity/ and thence operating as a security for its trustworthiness.

    Note

    i.e. in relation to what articles of ultimate evidence and what articles of indicative evidence

    Note

    viz the lot of ultimate evidence
  • 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.
  • 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.