074_304.xml

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) [...?]?

074_321.xml

Title: [31 March 1804 Evidence Forthcomingness]

Description: 31 March 1804

Evidence

Forthcomingness

Ch. Investigatorial

1. For the obtainment of the sort of evidence required - and for reducing to its /their/ lowest dimensions the vexation, expence and delay to /the manifestation//danger/ of which the course taken in the procuration[?] of the object is exposed - procedure in /directed at/ pursuit of this object /in this case/ is susceptible of a cause of facilitation which is not equally applicable to the case of procedure testibus cognitis. This is - the holding communication with each /any/ indicative witness by letter, and consequently at any distance, without the necessity of insisting on his presence. Why /How/ so? Because if, through the medium of an individual addressed /applied to/ in the character of an indicative witness information be obtained of another individual qualified to serve in the character of an ultimate witness, or even in the character of an indicative witness, provided /so is/ his station be nearer the source of ultimate evidence. No matter in what way obtained - the object so far as concerns the information he is capable of yielding, is accomplished.

In this way, true it is, that cross-examination, with the matchless security which it is of the nature of it to afford, will have no place. Equally true it is, on the other hand, equally true it is, that to this case, it has no application - in this case it would not be of any use. Suppose disposition to mendacity on the part of the indicative witness, the only person /party/ to whose interest it can be prejudicial is the party at whose instance it has been extracted. Take the case of an indicative witness standing in the chain of evidence next to the ultimate /individual qualified to serve in the capacity of an/ witness. Did you ever hear, (says the plaintiff) any person speak of his having seen any thing of the transaction in question? If the answer be no: true or false, the opposite party - the party adverse to the interrogator the defendant - is not prejudiced by it, but served. If the answer be, yes: I have heard Titius[?] speak of himself as having been present - here too again true or false, no injury can result from it to the defendant. If false, all the

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.