JB_058_009.xml

Title: [14 Apr. 1803 Evidence Object]

Description: 14 Apr. 1803

Evidence

Object

So far as this account of them is just, the several decisions and discussions exhibited by them may all of them be referable with propriety to the question to the problem concerning the weight of evidence: concerning the weight - the persuasive force in each instance proper to be allowed to this or that article or species of evidence. The account thus given of them will accordingly be found just: so far at least as the little points of difference that may be found in their respective contents will admitt of /of these different works will be found capable of admitting of/ one and the same description. I say just, but to render it such, an explanation will be found requisite. To reject a piece of evidence - not to suffer to be exhibited a document or a testimony which at the instance of this or that one of the parties would, if permission could be obtained, the exhibited in the character of a piece of evidence - is the same thing in effect as to say that it shall not be suffered to have any weight at all. The decisions and discussions reported /exhibited or referred to/ in theses books turn almost exclusively on the question /point/ shall the piece of evidence on the carpet be suffered or not be suffered to be exhibited and handed up to the Judge.

From the phraseology belonging to the language at large, let us now turn for a moment to the particular phraseology in use on this occasion among English lawyers. In almost every instance that occurrs, expressed in general language The question discussed with respect to the piece of evidence on the carpet is - shall it be received or rejected: this expressed in technical language is - the objection made to the evidence supposing it valid shall it be understood to apply to the competency of the evidence or to its credibility.+ If the answer be to the competency and such be the decision - this is as much as to say - the evidence shall not be admitted: it shall be rejected, excluded: it is bad evidence. If the answer be to the credibility only - this is as much as to say the evidence shall be received: shall be admitted.

+ competency and credibility - the language confined to oral evidence: in[?] other species no words received as[?] employed

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_047_042.xml

Title: [7 Apr. 1803 Evidence Pre-exhibited]

Description: 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.