JB_058_005.xml

Title: [14 Apr. 1803 Evidence Object]

Description: 14 Apr. 1803

Evidence

Object

Supposing all questions /points/ of law out of dispute, the requisite mass of evidence being presented - the mass of evidence requisite to serve as a /constitute a proper/ ground for the decision prayed for being obtained, the decision follows of course. On the other hand two difficulties two grand heads of difficulty attend the presentation of the requisite mass of evidence thus described. One is the general difficulty as above stated which opposes itself to the presentation of evidence in all cases: the difficulty of obtaining it for that purpose. The other difficulty /obstacle/ is the difficulty of determining in each case whether the mass of evidence presented in each case /instance/ comes under the description of the /a/ requisite mass of evidence.

Two functions /question/ - two fundamental and all embracing tasks present themselves in this point of view to the legislator: in the first place so to order matters that so far as the nature of things admitts, the requisite mass of evidence shall be forthcoming and presented. in the next place, that whatever mass of evidence comes to be presented to the Judge under the notion of its constituting with reference to the point in question the requisite mass of evidence, shall operate upon the mind of the Judge ad hoc in that behalf with its due and no more than its due portion of persuasive force. To find out in each instance the requisite mass of evidence or including such ingredients of it as are to be had /the case happens to furnish/ is the task that falls naturally to the share of the parties, and /but/ in a more especial manner to that of the plaintiff:+ what they stand in need of is the mass of legal powers requisite for the purpose. For this it is that they /their dependence is/ upon the legislator: whose assistance on that behalf commands and includes that of the Judge. and to supply them with this requisite stock of powers is the principal and most efficient of the two services, with the rendering which on this occasion as abovementioned, in point of moral duty, he stands charged.

+ Deportation[?] to show that justice is generally on the plff's side.

for the purpose of the opposite decisions respectively contended for by them.

JB_058_018.xml

Title: [19 Apr. 1803 Evidence Connection]

Description: 19 Apr. 1803

Evidence

Connection

Plan[?]

a word whatever probability of such conformity a lot of evidence would present to the mind of a man circumstanced as above supposed, a degree of force exactly proportioned to such probability of conformity is the degree of force with which it were to be wished that it should on each occasion act on the mind of the Judge. These considerations being kept in view, two grand /main/ and comprehensive objects /two practical objects /[...?]/ present themselves as questions /aims/ entitle to fix - and without prejudice to truth and injustice even to engross the attention of the legislator: one is, how so to order matters that there shall not on any occasion, so far as the nature of things admitts of a supply, be any want of evidence of information exhibited in that character to the Judge: - another is - that each piece of evidence so exhibited shall in its tenor /complexion/ be as conformable to the truth as possible: - the third, that the persuasive force with which it acts on the mind of the Judge shall be proportioned /run/ as nearly as possible /in proportion/ to the chance it has /there is/ of such conformity to the truth of things?

In these three objects if the division be an exhaustive one we shall have so many heads, under one or other of which, every thing which there can be any use in saying on the subject of evidence. To show how to make the best provision by the nature of each case and [...?] of for securing the exhibition of a sufficient - and not more than a sufficient such evidence as the nature of the case affords /may most effectually be secured/ - as also for securing the correctness and veracity of the evidence so exhibited - and to afford such assistance as can be afforded /and to show how such assistance may best be afforded/ to the Judge for the purpose of enabling him to allow in his own mind to each lot of evidence that weight which properly belongs to it - in these three problems we accordingly see so many heads under which every suggestion that promises to be of use in any way in the ground of evidence may without violence be included.

Such accordingly are the views[?] that /by which/ have guided the arrangement that has been given to the matter comprehended /contained/ in the compass of the present work.

[in margin:] evidence may be comprized; and to one or other /more/ of which every /all the/ thing /matter/ contained in this work will be found referable

JB_058_007.xml

Title: [14 April 1803 Evidence Object]

Description: 14 April 1803

Evidence

Object

Of these two problems the solution of the first will readily enough be understood to belong to the topic /subject/ of Procedure. Why? because the providing for the presentation /exhibition/ of the evidence to the cognizance of the judge requires a multitude of preliminary steps which on the first mention of them will be found to occupy a place, and that a principal one, in the series of steps of which the course /system/ of Procedure is composed. 1. How to trace out and discover such pieces of evidence whencesoever furnished whether by things or persons i.e. witnesses as the nature of the case promises, from[?] the complexion of it, to afford. 2. When found, how to guard it against the danger of being lost before the time comes for the presentation of it to the Judge. 3. When found to exist, how to cause it to be forthcoming. 4. Witnesses forthcoming, how to make sure of their deposing. 5. Witnesses forthcoming and deposing, how to make sure if possible what they depose shall as far as [...?] within their respective cognizance be the truth, the whole truth and nothing but the truth. Of these problems - not to mention other intermediate or incidental ones the solution for the reason just mentioned will be seen at first glance to belong to the subject /system/ of Procedure. Why? because on each occasion for the solution of each problem /of these subordinate problems/ some fresh step /fresh steps/ appears /presents itself/ as requisite to be taken and these on each such occasion different ones - to be taken by or on behalf of or at the instance of one or other party, in virtue of powers given by the legislator, by or under the authority of /from/ the Judge.