20 May 1804

Evidence

Forthcomingness

Ch Investigatorial

§ 5 Rules 4 & 5

Ask which is likely to give occasion to the greatest mass of vexation, expense and delay - the evidence of a human witness obtained in the first instance, or the evidence of a witness continues in the first instance, obtained through a chain of indicative evidence, the answer is [...?] - the mass of inconvenience can not but be greater /greatest/ in this latter case.

But from this observation no just conclusion can be drawn, prohibiting /pronouncing/ on any particular sort of cause, a peremptory prohibition, upon the recourse to investigatorial procedure. The goodness of the bargain will in any sort of cause, and in every individual cause always depend upon the ratio between the inconvenience of collateral injustice on the one part, and that of indirect injustice on the other. And in the formation of this ratio, the difference between indicative and ultimate evidence - between investigatorial procedure, and procedure testibus cognitis, will occupy - it can not be said no share at all - but in comparison with other circumstances but an inconsiderable share. One lot of ultimately applicable evidence obtained by investigatorial procedure - the testimony of one principal witness - the contents of a single deed or letter, may be obtained in the way of investigatorial procedure - obtained through the medium of a single hearsay witness, who heard what the principal witness said of the transaction or who saw the deed or the letter in some other hand - may supersede and render useless the evidence of a multitude of known witnessess or known papers speaking /applying/ not to speaking the main fact but in the character of circumstantial evidence, speaking to so many different evidentiary facts, more or less remote and inconclusive.