5 June 1803

Evidence

Best

II. Substance

7. Written extra judicial

Written extra judicial evidence.

In speaking of the several contrasted and respectively commensurable species of evidence opposed to each other in pairs, it will be necessary to comprehend in the same view one /the/ anomalous incommensurable species of evidence for which no others can be found to contrast or match with it. I mean that of which some description has already been given under the name of written /[...?]/ extrajudicial and which is also supposed to be unofficial and in every respect unpre-appointed evidence.

The evidence before spoken of, as will under the name of written as under the name of oral, has been supposed to owe /receive/ its birth as well as its exhibition /appearance/ to the creative powers of justice /judicature/. Even in the case of hearsay evidence, though this could not be affirmed of the supposed narrative or statement of the supposed percipient or any intermediate witness, it is not the less true of the [...?] evidence - the evidence of the deposing witness.

Looking a little more closely on this anomalous, but very frequently recurring species of evidence, we shall find it to be of the nature of /analogous//[...?]/ in its [...?] properties to /with/ the evidence of a percipient or pretended percipient witness. The difference is - that it is fixed by writing, and introduced to the notice of the Judge without the intervention of any person in the character of a deposing witness: that sort of deposition excepted which consists in the mere act of authentication - the act by which it is presented as being the discourse of such or such an individual for whose discourse it is intended / meant/ to pass. To ascertain /determine//estimate/ the degree of persuasive force possessed by the /a/ species of evidence of this description /thus distinguished/ [...?] it will be necessary to have examined the nature of hearsay evidence. For it is only by analysing /the analysis/ and decomposing as it were /effecting the analysis and as it were the decomposition of/ hearsay evidence that a correct and clear conception of the first of the two distinct members of which member at the least every distinct article of hearsay evidence specifically consists - I mean the supposed evidence of th supposed percipient or extra judicially narrative witness, but in a fixed, and thereby improved state into which it is put by being consigned to permanent signs. Accordingly like that [...?] of a piece of hearsay evidence we shall find it incapable of being subjected to the action of the depurative and completive operations /processes/ so of the mentioned. You might cross examine the writer if you had him before you, but the writing itself is incapable of being cross examined.