JB_045_467.xml

Title: [21 Sept. 1803 Evidence Note]

Description: 21 Sept. 1803

Evidence

Note

Instructions

Considerations

1. Interests in general

Situations

Party and witness

4. A cause particularly connected with the actual state of English jurisprudence is the want of the means of commanding the testimony of unwilling witnesses, of witnesses whom possession of the required facts is inferred from their situation, at the time in question, in a word from any other source than information furnished directly or indirectly from themselves. The effect of this deficiency will be most readily and clearly perceived, by the observation of those cases to which it does not extend. On the occasion of those preliminary examinations which have place in the case of prosecutions for such crimes as have been raised by the law to the rank of felonies witnesses /evidence/ of all sorts is brought forward as fast as the lights afforded by one witness serve to indicate the further lights that may be expected from another; and the testimony of witnesses where testimony /evidence/ being of the hearsay kind could not be with propriety received into the mass of evidence of which the grounds of the decision are comprised, may yet in the character of indicative evidence serve to bring to light the testimony of immediate witnesses who being ill disposed to that side of the cause which stood in need of their assistance would not have come forward of themselves, nor would have been brought forward at all but for the indication so obtained.

But the greater the number of unwilling witnesses are by the above or any other cause excluded the greater of course must be the number of willing witnesses in proportion to the whole number brought forward and considered.

JB_045_471.xml

Title: [22 Sept. 1803 Evidence Instructions]

Description: 22 Sept. 1803

Evidence

Instructions

Considerations

Extraction bad

1. Causa alia

1. First case of suspicious evidence, the suspicion arising from its having been extracted in the course of another cause, between other parties.

The ground of distrust /infirmity/ here arises from this circumstance, viz: that the party against whom the evidence /testimony/ is produced had no opportunity of encountering it by other evidence.

This ground will be stronger or weaker according to several circumstances.

1. It may be that the party against whom the evidence was produced in the prior cause had exactly the same interest, or what comes to the same thing an interest equally strong to encounter it to do what was in his power to encounter it, as the party against whom it is produced in the principal cause /case upon the carpet/. And though the stake should not be so great, yet if in the prior cause the interest was adequate, and the means adequate, i:e: if in the joint considerations of delay vexation and expense there was nothing that was capable of /of a nature to/ deterring or disabling the party from inconsistency, the evidence, from producing the opposite evidence /counter evidence/ (the witnesses whether to the same fact or to ulterior fact) necessary to the purpose, in this though the interest itself were less strong, the effect of it upon the conduct of the party in question and thence upon the fate of the cause would not naturally /in general/ be materially different.

In this case the only infirmity attending the extraneous evidence with reference to the purpose of the principal suit is what results from that circumstance - viz: that a man can not naturally /in general/ have the same confidence in the exertion of another as he has in his own. To the party it will accordingly appear /be apt/ that if in the prior cause the inconsistency of the evidence had fallen to his share instead of that of the actual party in that cause - viz: the party against whom it was produced in that cause, his exertions might have been attended with more success. Be this as it may /At any rate/, such is the observation which he will naturally be disposed to bring forward, as an argument against the competency or the credit of the extraneous evidence. But what weight is due to the observation will not with the judge of fact to determine, consideration had of the individual circumstances of the principal case.

In this case it is supposed /the supposition/ that in the principal case the means of encountering the extraneous evidence have been carried off by death or what is tantamount to death: for if not, the case affords no reason why it /the evidence/ should not be permitted to be encountered: just as it might have been encountered if exhibited in the principal cause in the first instance without having ever been exhibited in any prior cause.

048-095.xml

Title: [30 Oct 1803 Evidence Circumstantial]

Description: 30 Oct 1803

Evidence

Circumstantial

in general

On the occasion /In relation to subject/ of these several modifications of circumstantial evidence, two points /three questions/ require all along to be kept in view[?] .

1. what the fact is /is the nature of/ which is regarded in the character of an evidentiary 2. what each species of evidence is in itself: what the sort of fact /fact/ is, in relation to which it is in the nature for[?] it /the evidentiary fact/ to operate as evidence: and what the circumstances are, if any, by the introduction of which the operating of it in that character may be rendered inconclusive.

Note

The division into physical evidence /if at all/ (understand circumstantial evidence) and psychological is an exhaustive one: in one branch or the other may be included every possible modification of circumstantial evidence. Portions /Divisions/ thus extensive[?] are two extensive, both of them, to apply exclusively to any species of legally-important fact: The point of view /character/ in which they are here mentioned is accordingly that of so many reservoirs or fountain heads[?] up to from which all modifications applying to any particular [...?] /species/of legally important facts may be traced. Under these three /two/ articles /heads/ there will accordingly be no mention made /room for any/ of the species of fact: but after these the designation of the species of fact evidenced will be a constant [...?] to /accompaniment of/ the each modification of circumstantial evidence.

The same observations may be extended /applied/ to the two next heads with little difference. Under /To one or other of the two first heads may be ranked /referred/ all circumstantial /real/ evidence in the case where it is brought forward in affirmance of a fact fact undertaken /endeavoured/ to be proved: under one or other of the two next all circumstantial evidence in the case when it is brought to view in disaffirmance of a fact affirmed and evidenced, i.e.[?]: endeavoured to be proved on the other side. Flor it is only by reference to other facts that the improbability or impossibility by which is meant nothing more than improbability in the highest conceivable degree can be proved: the expression by which it is spoken of as if it were an absolute property, residing completely and exclusively in the improbable fact itself, may be received for the convention of discourse, but would lead to confusion and error, if taken for a correct representation of the nature of the case.