1 March 1808

Letter VI

Omissa & Facienda

II. No Allegat n sans x exam

The consideration which obtained a place for this rule on /proposed rule in/ the occasion of Scottish procedure, was a source of injustice and unmovably part[?] of practice which, as between Scottish /Scotch/ and English is peculiar to Scotch law: I mean the practice of referring a fact /suffering a fact to be referred/ to the oath of the adverse party, without permitting the scrutiny to be applied to his testimony so delivered.

In general, or at least in causes[?] to a great extent, the testimony of a party, supposing it offered at his own instance, is /stands/ excluded - excluded, not admitted, although it were offered to be subjected to the scrutiny of cross-examination, as well as confirmed by the sanction attached to the solemnity of an[?] oath. In a particular case, this most peculiarly suspicious of all species of evidence is admitted: admitted, and on what terms? - on the express terms of not being subjected to that scrutiny the searchingness[?] and utility of which in the character of a security for truth is so thoroughly felt and universally acknowledged. Such is the inconsistency and absurdity[?] of this practice[?].

Oh, but (says some one) the case and the only case in which the testimony /species of evidence/ is a case in which the trustworthiness of it i established; established by the best and most conclusive evidence: established by the acknowledgement of the particular individual himself, who himself calls for the testimony in question, approved[?] on he[?] is of the only conditions in which it is obtainable.

In the opinion of the party (suppose the plaintiff) by whom the testimony of the adverse party (say the defendant) is called for such is the probity of the defendant that a reliance may be placed on his testimony though in his own causes without the application of that sort of scrutiny (cross-examination) which in the case of an individual taken at random would be indispensable.