date

5 June 1803 Evidence Instructions
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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    2. Second class of Cases - where in a /each/ pair of contrasted species of evidence the distinction turns not upon the form or mode of exhibition a circumstance variable at the pleasure /command/of the legislator, but upon substance - upon the unchangeable nature of the evidence itself.

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    Thus much upon the ground of simple incorrectness: a ground which of itself is amply sufficient to warrant the decided and invariable /neverfailing/ superiority of first-hand over the best possible modification of hearsay evidence.

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