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.

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_489.xml

Title: [4 June 1803 Evidence Best]

Description: 4 June 1803

Evidence

Best

3 Original with transcript

11.

3 as between original

and transcriptions

written evidence

3. Comparison the third: Original with transcriptious evidence.

The /Of the/ superiority of the former there can be neither dispute nor doubt /is altogether out of doubt/. In the case of transcriptitious evidence the maximum /highest pitch/ of ideal perfection would be /is/ equality with respect to the original: and to this /at this absolutely/ highest pitch it can seldom be thought /will seldom happen to it/ to stand in the opinion of a Judge. Intentional and Fraudulent intention on the part of a transcriber will always present a possible cause of departure: unintentional incorrectness, the result of human infirmity, presents such a cause, the efficiency of which as can not in any ordinary instance be regarded as being in a considerable degree improbable. By successive revisals or even by a single the security may be carried to a degree sufficient for practice even in the most important cases: but mathematically and strictly speaking absolute equality with the original is a limit towards which a transcript may be ever rising higher and higher, but up to which it can never rise.