14 Apr. 1803

Evidence

Object

The admission the reception of the evidence being decided upon - thus[?] according to the problem as above stated would come in its full office - the question to which the decision [...?] /pronouncing/ the admission of the evidence pretends, it will /may/ be observed[?], no answer - the evidence being admitted what shall be the weight - the degree of persuasive force ascribed to it? But to this second question no answer is given in any of these books. None by the legislator. The only question to which in any part of its extent the legislator properly os called /so [...?]/ is the question concerning competency as above explained - concerning admissibility - concerning competency as above explained. Evidence of such and such a description which by the judicial authority had been pronounced inadmissible shall be received. Not by the judicial authority standing in the place of the legislature and exercising authority having the effect of legislative in the way of Common Law. To pronounce it inadmissible - to pronounce it admissible - such is the alternative /is the exercise of both authorities/ in practice. No third course is taken in either instance. /Of any third course, no traces are to be found. A third course however has already /however/ at this early stage of the inquiry - a third course has presented itself as promising to have its use. This consists in the laying down instructions, for the assistance of the Judge presenting to his view in the instance of such /every such/ species of evidence as shall be deemed admissible /suffered to be admitted/. such considerations as may be of use to him for the guidance of his judgment in determining /adjusting/ the degree of force /weight/ to be attributed to it. This howsoever a task is to both offices /in both situations/ as yet a new one. To that of the Judge as such the operation /function/ would be incompetent: it not coming within the option of his authority to lay down general rules as such. To that of the legislator it is alike not incompetent, so far as competency is regarded as constituted by usage.