3 June 1803

Evidence

Best

2 Written with oral.

And is the procedure of the Romano-Gallic system so compleatly absurd then as it here stands represented? - Not exactly so: not near /quite/ so absurd in substance as in appearance. The written /sort of/ evidence here in view is in many /most/ cases /under the name of written evidence/ pre-appointed, and in some even official evidence: and that it should be /is/in the nature of pre-appointed evidence in general, and more particularly official evidence to command a more uniform degree of confidence, to generate a more uniform degree of persuasion than casual evidence, has been already estimated, and will be more particularly apparent in its place.

Where then lies the true comparison? where the real distinction not between written evidence and unwritten, but between preappointed evidence and casual: for though both should be written, or both for ever unwritten, the ground of preference will be the same.

Thus it is that a vitious arrangement, expressed and either begotten or followed by a vitious nomenclature is capable of putting out the light of day, and establishing the reign of chaos upon earth for a thousand years!

2. Barring criminal falsification, written evidence being paramount expresses itself, as itself, at all times. Of Oral the identity vanishes as soon as it is exhibited /Oral - no sooner is it exhibited, than the identity of it is gone/. The next moment it is or rather what professes to be it is, no longer original evidence, but unoriginal hearsay evidence. Its identity is still precarious /questionable/, though when exhibited a second time, it is exhibited by the same mouth. 3. Written evidence - evidence by permanent signs - may pass through a hundred hands, each taking a transcript of it - each successive transcript taken not from the original or any anterior transcript but from the last preceding it - it might in this way pass through a hundred hands, and still be in substance - nay[?] even in words - be exactly the same evidence. What would have become of a piece of oral evidence of the same tenor, after it had passed in this same way each time at the distance of a few days, or though it were but a few hours or minutes, through a hundred mouths?

Suppose in both cases the piece of evidence in question, oral in one case written in the other to be exhibited /brought into existence/ on any occasion but a judicial occasion - in any place but a court of justice. On this supposition the oral evidence whenever the substance or alledged substance of it comes to be exhibited in a court of Justice, can not exhibit itself but through the medium of another mouth, or at least a separate narrative from the same mouth, and therefore in the first case stands upon a footing no wise different and in the other case but little different from that of subsequent hearsay evidence.