date

31 May 1803 Evidence Instructions
31 May 1803

Evidence

Instructions

Best.

The inquiry /examination/ to be compleat and compleatly satisfactory the examination will of course be required to be carried through every species of evidence: that is, for specific distinction is properly the work not so much of nature as /but/ of art through every two sorts /masses/ of evidence, which are capable of being distinguished from one another for this purpose; and at any rate through the several sorts of evidence which as the commencement of the work were for this purpose indicated /enumerated//actually denominated/ and distinguished at the commencement of this work.

The several modifications of evidence which being /having/ been distinguished from one another in forms[?], according to a series of divisions made from so many sources, come now to be confronted may be thus enumerated

1. Real evidence with personal. 2. Preappointed evidence with casual.

3. Direct evidence with circumstantial.

4. The evidence of a more credible sort of person with the evidence of a less credible sort of person.

5. Evidence scrutinized with evidence unscrutinized: evidence more perfectly with evidence less perfectly scrutinized.

6. Evidence expressed by permanent signs with evidence expressed by impermanent and evanescent signs.

7. Evidence consisting in the declaration of a man's own perceptions with hearsay evidence /Immediate evidence with hearsay evidence/ - i:e: evidence consisting in the declaration /relation/ of supposed facts as having been related by another witness.

8. Original written evidence with transcriptions.
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  • Title: [2 June 1803 Evidence Best]
    Description: 2 June 1803

    Evidence

    Best

    Let me begin with the class of cases first described. It is that topic of the two that will be most productive of satisfaction: the only one that will be found productive of any very considerable practical use unless it be that of serving more effectually to guard the legislature against those illusions - the result of partial and hasty views - by which whole species of evidence have been marked out for inexorable exclusion /sacrifice/.

    The cases /case/ in which the question is between shape and shape, and the choice of the shape depends more or less /altogether/ upon the legislature, affords the following pairs of contrasted species.

    1. Scrutinized evidence and /with/ unscrutinized: and in the former case more perfectly scrutinized and /with/ less perfectly scrutinized. By scrutinized I understand of course subjected to the action of one or more of the processes or operations above exhibited under the characteristic denomination of scrutative,

    2. Written and oral: or to put the distinction upon its proper and clearer footing, evidence expressed by permanent signs and /with/ evidence expressed by evanescent signs.

    3. In the case of written evidence - original and unoriginal: that is in this case, autographic with transcriptitious.

    4. In the case of oral evidence or direct /or autophonous with derivative, or hearsay evidence.

    5. Preappointed evidence of all the above sorts and casual.
  • 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.
  • Title: [3 June 1803 Evidence Best]
    Description: 3 June 1803

    Evidence

    Best

    2. Scrutinised with unscrutinised

    1. Comparison the first: - Scrutinized with unscrutinized; and more perfectly with less perfectly scrutinized.

    The scrutative operation /catalogue of scrutative arrangements/ has already been brought to view:- they are comprized in the mode of proceeding to be /to be/ pursued /observed/ in the examination of witnesses: 1. Questions in a series, successive not simultaneous: that maintain, mendacious invention may have the less light to work by: 2. Answers, extemporaneous, and thence unpremeditated and uninstructed: 3. Questions not immutably-pre-arranged, but each succeeding question grounded in and thence guided by the answer to the question last preceding 4. Depositions of each preceding, kept /[...?] concealed from each succeeding deponent: that memory, and not mendacious instruction any more than mendacious invention may be thee guide. 5. Cross-examination: i:e: the testimony that has been extracted by questions put by the party at whose instance the witness is produced /made to come forward/, checked and compleated by questions propounded on the other side. 6. Confrontation, where /upon occasion, as/ necessary between deponent and deponent for example non-litigious witness and defendant, that personal identity may be the more satisfactorily established. 7. the - examination of a deponent upon occasion, that other depositions given on a preceding examination may be corrected by the lights furnished collected as well from the depositions of precedently examined deponents were communicated to him as from his own maturer recollections. 8. Publication, certain or more or less probable, and consequently expectation entertained by each deponent of the publicity of his deposition, - and thence an encreased chance for the ultimate detection of any errors on on his part, designed or undesigned.

    If the above arrangements, all /each/of them without exception have their use, in how high a degree must a lot or a body of evidence /of [...?] which/ that for the deposition and completion of it has had the benefit of their united influence be superior to one which has not had the benefit of any part of that influence? And again /But moreover/ if there be not one of them that in the state of things to which it applies has not its use, it will follow that by any one of them that can be added the superiority the security for the correctness and veracity of the evidence will be encreased; by every one omitted, it will be decreased.