date

14 Apr. 1803 Evidence Object
14 Apr. 1803

Evidence

Object

In the instance of /In regard to/ the other of the two problems the

solution of it will as readily be seen not to belong /recognized with equal readiness as not belonging/ to the subject of Procedure. - Why? for the opposite reason: because for the purpose of doing what depends upon the parties concerned towards the solution of it - on the legislator in his department - or the Judge in his no special steps /no fresh steps/ are to be taken in each particular /individual/ instance - in the instance of each individual cause, by the Judge - the parties or any body else. To The legislator it belongs according to the measure of his wisdom to furnish the requisite lights - to exhibit the requisite instructions: to the Judge according to the prescription of his duty and the measure of his wisdom to conform to them - make application of them respectively to each particular case.

For the use of English lawyers books [...?] extant in considerable number confined by these titles as well as in their contents to the subject of evidence. In these several books, [[in margin:] professing accordingly by their titles to have for their subject such part and such alone of the field of Procedure as belongs to Evidence] the questions /topics/ /discussions/ stated /discussed/ have been principally and almost exclusively confined to points belonging to this second problem. In the present work the field of enquiry is therefore with very little variation commensurate to the field of enquiry assumed by such books already extant as exhibit the same title.
Similar Items
  • 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.
  • 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
  • Title: [14 Apr 1803 Evidence Object]
    Description: 14 Apr 1803

    Evidence

    Object

    To determine within himself with what degree of persuasive force the mass of evidence presented /actually exhibited/, and each component part of it shall be suffered to act upon his mind is on this same occasion the peculiar province of the Judge. To present to his cognizance such considerations as promise to be of use in respect of the assisting the Judge in the formation /framing/ of this /such/ determination, and resting it upon just grounds is a correspondent duty which presents as competent to the legislator acting within his sphere.

    On this general survey of the matter the whole of what is to be done or said on the subject of evidence presents itself as capable of being included under two grand problems. 1. How to order matters so that in each instance at the properest[?] that is the earliest point of time, in so far as the nature of things admitts the mass of evidence requisite to the formation of a just decision+ shall be presented /present itself/ to the Judge. 2. How to order matters that the mass of evidence presented on each occasion on both sides, shall operate on the mind /persuasion/ of the Judge with neither more nor less than its proper weight than the weight which properly belongs to it.

    + i.e. such a decision as in the case in question shall have the effect of the fulfilling in /to/ the utmost possible degree of perfection, the prediction delivered in that behalf by the substantive branch of the law.