date

19 Apr. 1803 Evidence Connection
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
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  • Title: [19 Apr 1803 Evidence Superseded]
    Description: 19 Apr 1803

    Evidence

    Superseded?

    Connection

    Plan[?]

    Superseded by Ch.3. General [...?] or [...?] [...?]?

    On a general survey of the subject, two /three/ very obvious but leading observation here present themselves: One is, on every occasion, that judicial decision, and consequently the chance in favour of rectitude of decision, depend altogether for evidence: no evidence, no decision; no decision, no justice (the bearing of the law upon the case being supposed out of doubt). The other is, that though truth itself exists but in one degree and in the instance of each assignable matter of fact there is no medium between its being true and not true, yet nothing can be more various than the degree of a[?] persuasion which one and the same piece of evidence is capable of producing - the degree of effective force with which it is capable of acting on the mind. A third is, that the /desirable/ result to be desired - to be desired for the sake of the interests of truth and justice, is - that in the instance /case/ of each species and individual lot of evidence, whatever be the probability it presents of being conformable /in exact conformity/ to the truth - an exact[?] picture of the fact [...?] in question in exact correspondence with that degree of probable truth /verity/ should be the effective force with which it acts /operates/ upon the mind of the Judge.

    That the testimony of an individual, if such there were in existence concerning whom a man perfectly acquainted with his existing situation and character as exhibited by his conduct throughout life, should be warranted in pronouncing that his testimony, after every thing that could be done to secure its conformity to truth presented no chance at all of maintaining /exhibiting/ such conformity nor of assisting /nor so much as of affording assistance to/ the judgment of the Judge in another shape viz. by serving as evidence is capable of doing even by its mendacity to assist the mind in the /its/ investigation of the truth - that such a testimony I say should not meet with any credit whatsoever should not act with any effective force whatever in the mind of the Judge: and that in a
  • 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.
  • 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