date

[094-169v] 8 Feb y 1803 Evidence
[094-169v]

8 Feb y 1803

Evidence

Ch. 1

Definitions &

Corresponding to the above distinction is that between competency and credibility as applied to witnesses in the English law.

When an objection is spoken of as applying to the competency [...?] a witness in such[?] can if is be[?] deemed valid the witness is pronounced incompetent which is as much as to say that a determination is taken that his testimony shall not be received.

When an objection is said to [...?] not to the competency of a witness but only to his credibility or in other words to his credit[?] the effect of it is not to prevent the testimony from being received but to convey an admonition to the Judge - to convey suspicion in respect of the veracity of the testimony and to put the Judge upon his guard[?] against the being deceived by it.

To declare a witness i:e: a species of witness incompetent is neither more nor less than an art of legislation: a [...?] of legislation binding upon the Judge & forbidding him to receive the testimony thus marked out /distinguished/ for rejection.

The result of this enquiry is that very little ought to be done in the way of legislation: & besides proving this the principal object of it is to afford instruction to the Judge.
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  • 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

    The admission the reception of the evidence being decided upon - thus[?] according to the problem as above stated would come in its full office - the question to which the decision [...?] /pronouncing/ the admission of the evidence pretends, it will /may/ be observed[?], no answer - the evidence being admitted what shall be the weight - the degree of persuasive force ascribed to it? But to this second question no answer is given in any of these books. None by the legislator. The only question to which in any part of its extent the legislator properly os called /so [...?]/ is the question concerning competency as above explained - concerning admissibility - concerning competency as above explained. Evidence of such and such a description which by the judicial authority had been pronounced inadmissible shall be received. Not by the judicial authority standing in the place of the legislature and exercising authority having the effect of legislative in the way of Common Law. To pronounce it inadmissible - to pronounce it admissible - such is the alternative /is the exercise of both authorities/ in practice. No third course is taken in either instance. /Of any third course, no traces are to be found. A third course however has already /however/ at this early stage of the inquiry - a third course has presented itself as promising to have its use. This consists in the laying down instructions, for the assistance of the Judge presenting to his view in the instance of such /every such/ species of evidence as shall be deemed admissible /suffered to be admitted/. such considerations as may be of use to him for the guidance of his judgment in determining /adjusting/ the degree of force /weight/ to be attributed to it. This howsoever a task is to both offices /in both situations/ as yet a new one. To that of the Judge as such the operation /function/ would be incompetent: it not coming within the option of his authority to lay down general rules as such. To that of the legislator it is alike not incompetent, so far as competency is regarded as constituted by usage.
  • Title: [[094-298v] 21 July 1803 Evidence]
    Description: [094-298v]

    21 July 1803

    Evidence

    Pre-appointed

    III Judge[?]

    The intervention of the pre-appointed attesting witnesses mentioned[?] as such upon the face of the deed, ought it to be considered as putting an exclusion upon the testimony of all or any other witnesses? - No; most certainly. To put such an exclusion would be to render the validity of the contract compleatly dependant upon the pleasure of the individuals whose testimony had been thus employed. They might rescind it by perjury: without any such guilt or danger, they might rescind it by simply keeping out of the way.

    Supporting two attesting witnesses, both alive, and both forthcoming /amenable/, is it necessary that both of them should be warranted. Not according to English law which [...?] chief in general with one[?] witness. Distance may render the examination of them both, if performed viva voci[?] a matter of unnecessary expence. But the objection will have been removed, if one of the parties declares himself upon oath not satisfied with the deposition[?] of one alone of the two witnesses, especially if he offers to defray the expence in the first instance.