20 May 1804

Evidence

Forthcomingness

Ch Investigatorial

§.5. Rule 4 & 5.

Rule 4. In each individual cause, whether investigatorial power shall /ought to/ be exercised, and how far, depends upon the degree of collateral inconvenience in the shape of vexation, expense and delay, compared with the danger /probable mischief/ of direct injustice, viz: as deprading the importance of the cause, and the importance of the evidence to the cause.

Reason. In the character of a proposition to be proved, or rather or an axiom too manifestly reasonable to admitt of proof, this observation has already brought to view as applicable to evidence howsoever circumstanced, in the Books on the subject of the exclusion of evidence. +

An observation obvious enough, yet not too obvious to be of use is, that upon an abstract view of the investigatorial procedure on the one hand and procedure probationibus[?] cognitis prècognitis on the other, to obtain a lot of evidence fit to be included in the budget of ultimate evidence will in general cost more collateral inconvenience in the shape of vexation, expense and delay, when obtained in the way of investigatorial procedure than when obtained in the way of procedure probationibus cognitis /precognitis/ - why? because to obtain /by the supposition, for obtaining/ a lot of evidence from a source of evidence already known as such, a single examination, the examination of that source of evidence, is all that the case admitts of whereas in proceeding for the discovery of that same source of evidence though the medium of indicative evidence, devious examinations, to be performed upon a number of witnesses or other sources of evidence not capable of being exactly limited may be necessary to be performed.

+ B. Exclusion proper Ch.