date

Evidence 10 July 1806 Exclusion
Evidence

10 July 1806

Exclusion Improper III Deception

Reason having nothing to do in the matter of the whole law on the subject having been settled by the blindest /blind/ prejudice - it is almost lost labour /little better than labour thrown away/ to search after the ground. The following is likely as any other. Fear of deception forbids the admission of a man of his own behalf /[...?] testimony to his own advantage/: fear of vexation, to his own prejudice: both /have/ those causes of exclusion have /both/ concurr.

The complexity of the case the confusion resulting from it being so much the [...?] have - the shelter /scream/ to error - the fence[?] against the light of truth is so much the more effectual.

Whatever may have been the reason, or substitute for a reason - the rule in of the states[?] is this. Our defendant shall not be admitted to depose to the prejudice of another. Why not a co-defendant to the prejudice of a defendant? Is not the testimony of a stranger received against him without scruple? Unquestionable. What then is it that you are afraid of? Is it that an associate, as such, is more likely to violate truth to his prejudice than a mere stranger?

The fear of producing vexation (will it be said[?]?) forbids us to examine a man in a cause in which he himself is defendant, although the points to which it is proposed to examine him do not affect himself, but another person made a co-defendant with him in the same cause. The fear of the vexation? /Vexation?/ - good: if he be unwilling, and refuses - But suppose no unwillingness: - what becomes of the vexation then?
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    The practical conclusion seems to be that so long as any unobjectionable evidence is forthcoming and producible (a matter to be ascertained by the oath of the party or his agent) the Judge ought not to admitt /keep excluded for the present/ any objectionable evidence: evidence of a sort the extraction of which would be alluded with vexation, for the sake of protecting /screening[?]/ the party in question against /from/ this collatoral inconvenience.

    As to evidence of the suspicious class, for the mere purpose of guarding against deception, it has already been concluded /shown/ that it ought not in any case to be excluded. But by such exclusion was meant definitive exclusion: the reason extends not to the temporary /the momentary/ exclusion severe postponement here proposed. Such postponement /temporary exclusion/ will not always, by the concurrence of the party, be converted /become definitive/ into definitive. It seems probable, /Though in each case it/ it is by no means certain that this unobjectionable unsuspectible or less suspectible evidence is that which [...?] well bring forward in the first instance: and when it has been brought forward, what must frequently happen is that it does not come up altogether to his wishes, and that his endeavours may be to supply this deficiency by the objectionable /as yet unproduced/ evidence notwithstanding the objections that are seen to apply to it. Suppose it to be his own testimony. His anxiety[?] will naturally enough lead him to have his own story told in his own way in the first instance: and if at the instance of the adverse party or judge if the story has first been told by some less suspected evidence, it will still be natural enough for him to wish to add the supplement which he will often concur himself to have in store.

    In ordinary cases - in cases of [...?] [...?] or [...?] difficulty there seems no reason [...?] the former [...?], when it happens to be entertained should not be indulged: it is the shortest and suspected course: statement and proof are thus exhibited at the same time: evidence from a less partial quarter would be apt to be less intelligible and impressive[?], for this want of true[?] accompanying explanations, which no person who is not a party is likely to be so well qualified to give. But in cases of importance[?], or when the veracity of the party is particularly open to suspicion, it may be of use that the first impressions should be conveyed by less objectionable evidence.
  • Title: [[094-274v] 17 May 1806 *A]
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    17 May 1806

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    (a) /Concise idea /Slight sketch/ of the/ Principal diversities respecting the mode of collecting testimony; the shapes in which it is exhibited in practice.

    1. Natural ordinate mode: - the mode in use in Courts of Conscience, except in as far as cramped[?], by the terror of the technical Courts /- science[?] - and before a Justice of the Peace/ and before Arbitrators, Parties present: each testifying for himself, each, in answer to counter-interrogations put by the adversary, testifying against himself: extraneous witnesses examined on both sides by interrogations and counter-interrogations: the Judge also interposing with interrogations as he thinks proper: the Judge who decides upon the evidence the same person by and before whom it has thus been collected: - every thing delivered vivâ voce; but upon occasion capable of being consigned to writing. In case of necessity, assistants to the parties not excluded.

    2. English Jury mode: - The same as above, except that unless in the instance of the defendant where the nature of the cause introduces him in the character of a prisoner, the presence of the parties is not required; their interposition in the character of parties for the purpose of interrogation and observation discontinued in the character of testifying witnesses, for and against themselves, not endured.

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    Description: Evidence

    17 Sept[?] 1803

    Exclusion

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    Another false ground of exclusion may be termed co-defendantship.

    This ground of exclusion though in denomination simple, is in its nature complex. It is resolvable into two very distinct grounds that have been already mentioned viz: Reluctance and Interestedness. Is the result of the examination favourable to the charge? If operation is unfavourable probably to the witness himself at any rate to his friend and associate - not to say his accomplice. Is it unfavourable to the charge? The witness is thus admitted to give an evidence form which certainly his friend and associate, probably enough himself may receive a benefit.

    So pernicious are this rule - so shall the reasoning that gave birth to it - a false /and mala fide/ answer derived from it a sure method /receipt/ for getting rid of all those by whose testimony the falshood could be exposed. He had but to make them defendants.

    The mischief /grievance/ being too crying too shocking to commonsense and humanity to be endured, lawyers found themselves under the necessity of applying to it some sort of remedy. Accordingly, when a case occurred that called for it, a decision was pronounced, that when several persons had been made defendants, if there were any one or more against whom no evidence had been given on the part of the plaintiff, such defendant or defendants might be examined by and on behalf of the rest.

    By this decision some sort of provision was made for the interests of individuals - the defendants. If after having produced all his /the whole mass/ testimony the whole mass of the evidence on the side of the plaintiff had been produced a defendant was found to whose case none of it applied, his own acquittal followed of course, and then his colleagues the co-defendants were admitted to derive whatever benefit was derivable to them from his testimony.