18 June 1803

Evidence

Written

V. Case the fifth: case of witnesses compleatly impartial: connected with neither of the parties by any special tie of any sort.

On the ground of utility, the provision called for by this case, (supposing the existence or non-existence of it capable of being established) which it is not, if being ascertained would be still the same: though in the one state of things the demand /cause/ for rejection would not be quite so forcible: in the other the danger of deceit in case of admission would not be quite so great.

The testimony is varacious at least as far as it goes: but because it is varacious, i.e: not mendacious, it follows not that it is either correct or compleat. By vivà voce examination including cross-examination, a /mass of/ /pick[?] of/ testimony to the same effect would have acquired its best chance for /security for the possession of/ both those[?] qualities: bereft of that advantage, it must take its chance.

In this ideal /[...?]/ case however, supposing it could be verified, and at the same time known to be verified, what is manifest enough is - that in the one state of things it /the species of evidence in question/ might be admitted with much less scruple than in any of the four ordinary cases which go before it. admitted as well where the preferable species of testimony is obtainable, as where that superior species being unobtainable, this inferior species is the sole resource. It is so in general, in the case of pre-appointed official evidence.

As to actual law - in English jurisprudence, evidence [...?] in this shape from a witness thus circumstanced - from a witness exempt from the action of every visible cause of partiality - could hardly be rejected /refused to be received/, at the period at which evidence of this stamp is received from a naturally partial weakness. But positive opinion in this case is hazardous, since the reason on which the admission of the evidence has been grounded in the case of the naturally partial witness, does not extend to the impartial. Where the post mortuary written evidence has been received, the reason has been - that the entry [...?] the memorandum - has been in the ordinary course of business: viz: in the course of that business which it comes in the way of the witness to transact in consequence of the more or less intimate connection and dependance created by the particular relation he stood in towards one of the parties in the cause.