JB_045_501.xml

Title: [5 June 1803 Evidence Best]

Description: 5 June 1803

Evidence

Best

II. Substance

7. Written extra judicial

Written extra judicial evidence.

In speaking of the several contrasted and respectively commensurable species of evidence opposed to each other in pairs, it will be necessary to comprehend in the same view one /the/ anomalous incommensurable species of evidence for which no others can be found to contrast or match with it. I mean that of which some description has already been given under the name of written /[...?]/ extrajudicial and which is also supposed to be unofficial and in every respect unpre-appointed evidence.

The evidence before spoken of, as will under the name of written as under the name of oral, has been supposed to owe /receive/ its birth as well as its exhibition /appearance/ to the creative powers of justice /judicature/. Even in the case of hearsay evidence, though this could not be affirmed of the supposed narrative or statement of the supposed percipient or any intermediate witness, it is not the less true of the [...?] evidence - the evidence of the deposing witness.

Looking a little more closely on this anomalous, but very frequently recurring species of evidence, we shall find it to be of the nature of /analogous//[...?]/ in its [...?] properties to /with/ the evidence of a percipient or pretended percipient witness. The difference is - that it is fixed by writing, and introduced to the notice of the Judge without the intervention of any person in the character of a deposing witness: that sort of deposition excepted which consists in the mere act of authentication - the act by which it is presented as being the discourse of such or such an individual for whose discourse it is intended / meant/ to pass. To ascertain /determine//estimate/ the degree of persuasive force possessed by the /a/ species of evidence of this description /thus distinguished/ [...?] it will be necessary to have examined the nature of hearsay evidence. For it is only by analysing /the analysis/ and decomposing as it were /effecting the analysis and as it were the decomposition of/ hearsay evidence that a correct and clear conception of the first of the two distinct members of which member at the least every distinct article of hearsay evidence specifically consists - I mean the supposed evidence of th supposed percipient or extra judicially narrative witness, but in a fixed, and thereby improved state into which it is put by being consigned to permanent signs. Accordingly like that [...?] of a piece of hearsay evidence we shall find it incapable of being subjected to the action of the depurative and completive operations /processes/ so of the mentioned. You might cross examine the writer if you had him before you, but the writing itself is incapable of being cross examined.

JB_045_494.xml

Title: [5 June 1803 Evidence Instructions]

Description: 5 June 1803

Evidence

Instructions

Best

II. Substance

1. First-hand with Hearsay

e. contained[?]

Where the case affords first hand evidence, the legislator, if he thinks fir, may permit or order it to be converted into hearsay evidence. But it will often happen that a lot of evidence- a statement or narrative is not to be had in any other shape than that of hearsay evidence: the percipient witness not being forthcoming. In these cases it does not depend upon the legislator to have it converted into first-hand evidence. He must have /take//admit/ it in this its derivative shape, or not have it at all /exclude it altogether/.

On another ground - an additional and perfectly distinct and additional ground the superiority /inferiority/ of hearsay /first hand/ evidence in comparison of first hand /hearsay/ evidence has already been established. In all these hearsay evidence in respect of the supposed original - the essential and vital part of it, it is compleatly and necessarily unscrutinized. In Hearsay /It is of the essence of/ evidence contains /to contain/two essentially distinct narratives or statements of the same fact or supposed fact: the one a narrative or statement [...?] given; - the deposition given by the deposing witness:- the other a narrative or statement said by him to been given: - the narrative or statement said to have been given at the prior point of time in question in the other place by the alledged percipient or intermediate witness. The narrative or statement given by the deposing witness may be scrutinized or unscrutinized: if scrutinized, more or less compleatly scrutinized, but the supposed narrative or statement alledged by the deposing witness to have been given by the supposed extra-judicial witness, whether percipient or intermediate can never be subjected to any the slightest degree of scrutiny.

074_318.xml

Title: [8 June 1804 Procedure Evidence]

Description: 8 June 1804

Procedure Evidence

Ch Investigat?

§.6 Order - Rules.

§6. Order of investigation, direct and retrograde, through a chain of hearsay evidence.

Rule 1. In a chain of hearsay evidence, containing a number of intermediate links, consisting of the supposed statements of so many intermediate supposed reporting witnesses, interposed between the deposing and the supposed percipient or other immediate extra-judicial witness, on receiving indication, as above, of the supposed purport on the statement of the supposed percipient or immediate extra-judicial witness, the witness to be resorted to and convinced in the next instance is such supposed immediate witness.

Reason - By the convention and examination of the several intermediate witnesses, so much collateral inconvenience vexation, expense and delay will of course be produced. All which will, in case the supposed percipient or immediate witness has any evidence to give on the subject, be unnecessary and useless.

Rule 2. But if, on being examined, the supposed immediate witness denies all knowledge of the transaction, or gives /yields/ such testimony as is irreconciliable with the statement supposed to have been given in relation to his supposed extra-judicial statement, by the intermediate witness, by whom it is supposed to have been heard, in such case it may be proper and necessary to convene such intermediate witness of the first remove with the /such/ supposed immediate witness, whether for the purpose of contradicting and refuting the supposed immediate witness or assisting and correcting his recollections.

Reason. In this case, this step in the investigation becomes as plainly necessary, as it was seen to be unnecessary in the former case.