16 May 1804

Evidence

Forthcomingness

Ch Investigatiorial Engl Law

§. Romans Gallic

In Romano Gallic procedure I see nothing that prevents the making the proper use of imperfect /exceptional/ evidence, the employing it in the character of indicative evidence for the discovery of such s shall be unexceptionable. But between the functions of a lot of evidence - service in the character of a ground of decision, and serving for the discovery of other evidence I see not the marks of any clear line of distinction drawn in the language or conduct of men of law. The time for the examination and receipt of evidence not being there as in England confined within the compass of a single day or fragment of a day, but susceptible of any extention which Justice (not to speak of injustice) can require there is nothing to prevent evidence from succeeding to one another in a chain of any length, in the order in which the several succeeding links are indicated by the several preceding ones.

But between the two perfectly distinguishable functions of which [...?] a lot of evidence is, whether with propriety or not, susceptible serving in the character of a ground of decision, and serving for nothing other than /no other purpose than/ the discovery of other evidence. I see not the marks of any clear line of distinction drawn either in the language or the conduct of men of law. In the character of ultimate evidence /evidence for grounding a decision/, the imbecility of hearsay evidence for example, is seen to have been duly note: but on the one hand neither does the serviceableness of it in the character of indicative evidence appear to be ever noted (in French any more than in English law language there not being so much as a name for the expression of evidence considered as applied to this use) nor does its imbecility in the character of a ground for decision prevent its being received into the budget of evidence. Received it is ad without a question made, whether the immediate evidence the existence of which is indicated by it be or be /is or is/ not obtainable. Received it is, whatever trash it may consist of: received it is, for the person on whom the reception of a lot of evidence into the budget depends, appears to be not the Judge, but the party who has the examination of the witness or in the case of real or written evidence, in getting possession of it, has obtained /procured/ it: and it then rests with the Judge to pay such regard to each article as it appears to him to deserve.