7 Apr. 1803

Evidence

Pre-exhibited

Evidence thus circumstanced shall it be admitted /received/ or not admitted? - if admitted, on /under/ what conditions? - Such are the practical questions which present themselves as pertaining to this head.

As /On the question relative/ to its admission, light may be thrown by applying to this subject what has already been presented to view under the head of hearsay evidence.

Is the author of the pre-exhibited evidence alive or dead; or rather - to take the most expensive ground /embrace the whole of the ground/ - forthcoming or not forthcoming? The propriety of admitting /admission/ evidence of the description in question - and in case of its admission, the weight proper to be given to it, will /may/ be found to stand upon a footing somewhat different according as the answer is affirmative or negative.

In the case of hearsay evidence, the main ground of objection /obstacle to [...?]/ was - the inapplicability of the docimastic processess in the case of the supposed precipient and extra-judicially narrating witness. In that case the processess inapplicable were - all the docimastic processess without exception: and in particular the coming of the [...?] with its eventual penal consequences: also the whole of the security afforded by the faculty of cross-examination: and from /out of/ the deficiencies arose the characteristic blemish on that species of evidence - viz: the danger of collusion. Yet, notwithstanding all these objections /under all those grounds of suspicion/, the utility of that species of evidence has been established in a variety of cases: and in several of these cases it was shown to be actually admitted of in the practice of English law. In the present case the security afforded by the sanction of an oath has been applied to the lot of pre-exhibited lot of evidence. So likewise that of cross-examination - cross-examination by a party who if though not the same as in the cause in hand, had got any vote (barring collusion) an interest in the refining of the evidence if not exactly the same interest.