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.

JB_045_485.xml

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.

JB_045_488.xml

Title: [3 June 1803 Evidence Best]

Description: 3 June 1803

Evidence

Best

2 Written with oral.

And is the procedure of the Romano-Gallic system so compleatly absurd then as it here stands represented? - Not exactly so: not near /quite/ so absurd in substance as in appearance. The written /sort of/ evidence here in view is in many /most/ cases /under the name of written evidence/ pre-appointed, and in some even official evidence: and that it should be /is/in the nature of pre-appointed evidence in general, and more particularly official evidence to command a more uniform degree of confidence, to generate a more uniform degree of persuasion than casual evidence, has been already estimated, and will be more particularly apparent in its place.

Where then lies the true comparison? where the real distinction not between written evidence and unwritten, but between preappointed evidence and casual: for though both should be written, or both for ever unwritten, the ground of preference will be the same.

Thus it is that a vitious arrangement, expressed and either begotten or followed by a vitious nomenclature is capable of putting out the light of day, and establishing the reign of chaos upon earth for a thousand years!

2. Barring criminal falsification, written evidence being paramount expresses itself, as itself, at all times. Of Oral the identity vanishes as soon as it is exhibited /Oral - no sooner is it exhibited, than the identity of it is gone/. The next moment it is or rather what professes to be it is, no longer original evidence, but unoriginal hearsay evidence. Its identity is still precarious /questionable/, though when exhibited a second time, it is exhibited by the same mouth. 3. Written evidence - evidence by permanent signs - may pass through a hundred hands, each taking a transcript of it - each successive transcript taken not from the original or any anterior transcript but from the last preceding it - it might in this way pass through a hundred hands, and still be in substance - nay[?] even in words - be exactly the same evidence. What would have become of a piece of oral evidence of the same tenor, after it had passed in this same way each time at the distance of a few days, or though it were but a few hours or minutes, through a hundred mouths?

Suppose in both cases the piece of evidence in question, oral in one case written in the other to be exhibited /brought into existence/ on any occasion but a judicial occasion - in any place but a court of justice. On this supposition the oral evidence whenever the substance or alledged substance of it comes to be exhibited in a court of Justice, can not exhibit itself but through the medium of another mouth, or at least a separate narrative from the same mouth, and therefore in the first case stands upon a footing no wise different and in the other case but little different from that of subsequent hearsay evidence.