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7 Apr. 1803
Evidence
Pre-exhibited
Evidence thus circumstanced shall it be admitted /received/ or not admitted? - if admitted, on /under/ what conditions? - Such are the practical questions which present themselves as pertaining to this head.
As /On the question relative/ to its admission, light may be thrown by applying to this subject what has already been presented to view under the head of hearsay evidence.
Is the author of the pre-exhibited evidence alive or dead; or rather - to take the most expensive ground /embrace the whole of the ground/ - forthcoming or not forthcoming? The propriety of admitting /admission/ evidence of the description in question - and in case of its admission, the weight proper to be given to it, will /may/ be found to stand upon a footing somewhat different according as the answer is affirmative or negative.
In the case of hearsay evidence, the main ground of objection /obstacle to [...?]/ was - the inapplicability of the docimastic processess in the case of the supposed precipient and extra-judicially narrating witness. In that case the processess inapplicable were - all the docimastic processess without exception: and in particular the coming of the [...?] with its eventual penal consequences: also the whole of the security afforded by the faculty of cross-examination: and from /out of/ the deficiencies arose the characteristic blemish on that species of evidence - viz: the danger of collusion. Yet, notwithstanding all these objections /under all those grounds of suspicion/, the utility of that species of evidence has been established in a variety of cases: and in several of these cases it was shown to be actually admitted of in the practice of English law. In the present case the security afforded by the sanction of an oath has been applied to the lot of pre-exhibited lot of evidence. So likewise that of cross-examination - cross-examination by a party who if though not the same as in the cause in hand, had got any vote (barring collusion) an interest in the refining of the evidence if not exactly the same interest.
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Title: [7 Apr. 1803 Evidence Pre-exhibited]Description: 7 Apr. 1803 Evidence Pre-exhibited The /As to these/ considerations on which in point of reason in these cases the exclusion has been grounded, they appear to be as follows - 1. The questions by which the prior evidence was drawn forth - the questions of the answers to which it is composed - not chosen, any of them, by the party against whom the evidence is now attempted /proposed/ to be produced. Therefore whatever truth may be contained in that mass of evidence, it is not the whole truth - but only a part of the truth: and such part the tendency of which will naturally be exclusively favourable to the party by whose questions it was called forth and by whom the production of it is now proposed: unfavourable therefore to the party by whom the production of it is now opposed. Ground of the objection in one word - partiality. Short reason - The evidence partial, being drawn forth by questions, put only on one side. 2. No opportunity of cross-examination possessed by the party by whom on that account the production of it is now opposed. Therefore no opportunity /power/ of applying this most powerful of all tests to the deparation of this already partial evidence. Ground of the objection in one word - want of scrutiny. Short reason: The evidence unscrutinized. 3. In case of misstatement - whether through unintentional correctness or mendacity - no opportunity /power/ on the part /side/ of the party now prejudiced by it, to encounter it by opposite evidence, supposing such opposite evidence to be in existence. Ground of the objection briefly expressed - no opportunity of contradiction: the evidence uncontradictable. 4. Danger of collusion in the post[?] individual instance - facility given to collusion in future instances - should evidence thus circumstanced be admitted /deemed admissible/.
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Title: [7 Apr. 1803 Evidence Pre-exhibited]Description: 7 Apr. 1803 Evidence Pre-exhibited As to collusion, it is a case /species/ of fraud which like forgery is possible and as such to be guarded against, but like forgery it is not to be perceived as most probable. If any measures grounded in the supposition of such a fraud of this complexion are to be adopted /employed/, an averment upon oath, stating a suspicion of the existence of such collusion might /ought to/ surely be required. In the case of hearsay evidence, the characteristic fraud to which evidence of that description is [...?] /species stand exposed/ is not more simple in conception than it would be easy in practice, practicable by every human being without trouble or expense. In the present case in the case of a supposed collusion for the purpose of bringing into existence a partial and delusive mass of evidence, the expense and trouble of a law-suit /suit at law/ is the price that must be paid for the chance of the success which has been the object of the fraudulent enterprise /supposed/. What is certain, is - that the evidence has been given upon oath. What is also certain (for there is the case now upon the carpet), is - that it has been subjected to the test of cross-examination. What is possible, indeed, and what will sometimes happen is - that the cross-examination may not have been so effectual to the purpose of the present cause, as if performed on behalf of /under the /such/ instructions as could be given by/ the party agressed when it is proposed to be produced in the present cause. But in a general view the opposite result seems not less probable. Then, as now when the evidence was exhibited, there was a party interested in watching it scrutinising it, and if incorrect or mendacious or incorrect, opposing it an if possible contradicting it. To what name should the first opponent be presumed incompetent to his /the/ task? The presumption - the prima facie presumption, one should think, might rather to be in his favour; if not contested after when then and not offensive it might be deemed [...?]
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Title: [7 Apr. 1803 Evidence Pre-exhibited]Description: 7 Apr. 1803 Evidence Pre-exhibited To ascertain, in the instance /case/ of evidence thus circumstanced, whether the rejection /collusion/ or the admission of it be the preferable course, apply to it the [...?] /fundamental/ /cardinal/ question - which of the two results is the most probable upon the whole - that it shall be false and yet at the same time persuasive /successful/, or that it shall be true? The answer I think will hardly be that the admission of it /instances in which the result/ will be prejudicial to further /adverse to the ends/ to justice than will be the more numerous than these in which it will be conducive. Supposing it to be pronounced in a general view admissible, the next question will be under what conditions and restrictions?
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