date

31 March 1804 Evidence Forthcomingness
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
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  • Title: [March 1804 Evidence Forthcomingness]
    Description: March 1804

    Evidence

    Forthcomingness

    Ch. Investigatorial

    §.7. Course.

    whole prejudice from the falshood falls exclusively upon the head of the interrogator, the plaintiff: as to the Def t, so far as he is served the better from the vexation, expense and delay that falls upon the head of his adversary, far from being prejudiced by the falsity, is served by it. If true, whatever prejudice it may be productive of to the defendant, it is not in the nature of it to be productive of any injury to him. To the plaintiff it can not be of any possible use, any further than as it is true. Of what possible use could any cross-examination be, performed by the defendant in this case be productive? To facilitate the extraction of the evidence? To produce this effect is the object of the primary examination - the object of the plaintiff. To obstruct - to prevent the extraction of the evidence /information/? It is not likely to produce /that I should/ produce this effect by any means: it is not possible for it to produce this effect by fair means. /is not likely: that it should produce it by fair means is not possible/.

    Suppose the interrogation to be of the suggestive kind, be it ever so plainly suggestive, no possible injustice can ensue. Suppose it accordingly to run thus - did you ever hear Titus[?] speak of his having been present at the transaction in question. In the most ordinary state of things the question will not wear this suggested form, because in the ordinary state of things it supposes the interrogator to be already in possession of the information asked for; and then the person naturally addressed would not be any person in the character of an indicative witness, but the person / Titius himself/, supposed to be qualified to serve in the character of an ultimate witness. By accident however, the information /degree/ requisite to enable the interrogator to give this interrogative form to his question may have been obtained, and yet it may be more convenient to apply to the other individual the character of an indicative witness, than to apply in the first instance to Titius: as for instance, if the abode of the indicative witness be but at a distance of one days journey, and Titus be at the time in question distant by the amount of a six weeks voyage.
  • 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: [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.