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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.
Similar Items
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Title: [31 May 1803 Evidence Instructions]Description: 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: [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.
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Title: [26 Sept. 1803 Evidence Instructions]Description: 26 Sept. 1803 Evidence Instructions Considerations Makeshift Hearsay Second species of Makeshift evidence - Hearsay Evidence contestable, Oral evidence of oral evidence: oral evidence sanctioned scrutinized and cross-examined of oral evidence neither sanctioned, not contestable, sanctioned nor scrutinised nor cross-examined. 1. In the case of hearsay evidence, against the characteristic fraud, the same precautions /vigilance/ will be requisite on the part of the Judge as in the case of written casual evidence. And moreover to this danger is added that of unintentional incorrectness in the relation /statement/ given by the deposing witness of the discourse supposed to have been uttered in his presence by the supposed percipient witness. 2. In the case of hearsay evidence of more than one remove the Judge will of course resort at once to the supposed percipient witness the correspondence /the attention of the Judge and through him of the parties/ will of course be directed at once to the supposed percipient witness. Should he be at home and forthcoming, the occasion for applying to any intermediately reporting witness or witnesses will of course cease. Should he be be in foreign parts, every thing that relates to the provisional admission of his evidence and to the purification of it applies to this case in the same manner as to that where between the deposing witness and the supposed percipient witness there is no supposition of any intermediate witness /pen or tongue/.
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