5 June 1803

Evidence

Instructions

Best

II - in point of substance

1 First hand with Hearsay

2. Second class of Cases - where in a /each/ pair of contrasted species of evidence the distinction turns not upon the form or mode of exhibition a circumstance variable at the pleasure /command/of the legislator, but upon substance - upon the unchangeable nature of the evidence itself.

1. Comparison the first /fourth/. Evidence at first hand with Hearsay Evidence. The superiority of first hand evidence our hearsay evidence of even the first remove, and a fortiori of any /every/ ulterior remove stands upon ground of the same sort with the superiority of original over transcriptitious evidence in the particular case of written evidence: upon ground of the same sort /like texture/, but upon much clearer and stronger ground. Mendacity apart, in the case of transcriptitious written evidence, the sole /only/ efficient cause of uncorrectness /aberration/ to the influence /action/ of which it is exposed is a deficiency /failure/, in point of attention: in the case of hearsay evidence, the same cause operates with augmented force, with the addition of another very powerful cause - failure in point of memory; a cause, the force of which goes on encreasing ad infinitum with the distance in point of time between the hearing of the supposed extrajudicial statement or narrative, and the repetition supposed to be made or said to be made of it for the purposes of justice.

Thus much upon the ground of simple incorrectness: a ground which of itself is amply sufficient to warrant the decided and invariable /neverfailing/ superiority of first-hand over the best possible modification of hearsay evidence.

On the ground of mendacity and fraud, the persuasive force of hearsay evidence stands exposed to further defalcations. But these together with other matter relative to hearsay evidence /the form and application/ will form the subject of a chapter bearing the name of that species of evidence for its title.

The choice as between Evidence at first hand and hearsay evidence depends (it may be said /objected/) upon the legislator in this case as well as in the three former ones: inasmuch for where the percipient witness is forthcoming, it depends upon the legislator either to insist upon his coming forward in the character of a deposing witness, or to accept of his testimony i:e: of what passes for his testimony, through the medium of another person who in such case takes upon himself the function of a deposing witness. This much can not be disputed: but in this case, the question turns not upon the form but upon the very substance of the evidence. The question is not in what form the evidence /testimony/ of a given witness shall be exhibited, but whether in a case where the testimony of a single witness would be the best it shall be weakened in this way by the [...?] /substitution//addition/ of a second witness /an unnecessary witness or a necessary one/.