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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.
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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.
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Title: [[...?] [...?] 1804 Evidence]Description: [...?] [...?] 1804 Evidence Forthcomingness Ch. Investigatorial §.1. Investigation quid Ch. Of Investigatorial Procedure and Investigatorial Tribunals /Courts of Enquiry/ By procedure ad investogadum or investigatorial procedure I understand any system or mode of procedure, considered as applied to the discovery of one lot of evidence through the medium of another: in other words one link in a chain of evidence (a) through the medium of another: in other words of following up a thread of evidence in examining a lot of evidence not in the character of a lot of a lot of evidence for the ultimate hearing /ultimate evidence/ - evidence for grounding a decision on the subject of the cause - but in the character of evidence of evidence /a lot of indicative evidence/. In a word it consists in the examination of evidence in the character of indicative evidence. Evidence fit for ultimate evidence, will not, it is plain, be on that account the less fit to be heard or received in the character of a lot o indicative evidence. But it may frequently happen, that a lot of evidence, plainly unfit to serve in the character of ultimate evidence shall be as fit as any other to serve in the character of indicative evidence. (b) Suppose In a case in which all the evidence which the transaction furnishes to be /is/ already known to both parties, there exists no demand for procedure of the investigational cast, as above described. For distinctions sake, procedure in this case may be termed procedure testibus cognitis, or rather to include real and written evidence, probationibus cognitis. (a) Note a Ch [...?] [...?] of a chain of evidence (b) [...?]?
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Title: [31 March 1804 Evidence Forthcomingness]Description: 31 March 1804 Evidence Forthcomingness Ch. Investigatorial §.7. Course §.4. Peculiarities of investigatorial procedure As to the plea or mode /course/ of proceeding in investigatorial procedure, it will be obvious at first sight, that between procedure in this case and procedure testibus cognitis there can be no great difference. The securities for trustworthiness, including the mode of examination will be the same - the occasional legitimate causes of delay - sickness, distance or expatriation of the witness - will be the same: and so on throughout. Two observations present themselves alone as turning /being grounded/ upon the main points of distinction between procedure for the obtainment of ultimate evidence in the first instance, and procedure for the obtainment of it through the medium of indicative evidence.
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