21 Sept. 1803

Evidence

Note

Instructions

Considerations

1. Interests in general

Situations

Party and witness

4. A cause particularly connected with the actual state of English jurisprudence is the want of the means of commanding the testimony of unwilling witnesses, of witnesses whom possession of the required facts is inferred from their situation, at the time in question, in a word from any other source than information furnished directly or indirectly from themselves. The effect of this deficiency will be most readily and clearly perceived, by the observation of those cases to which it does not extend. On the occasion of those preliminary examinations which have place in the case of prosecutions for such crimes as have been raised by the law to the rank of felonies witnesses /evidence/ of all sorts is brought forward as fast as the lights afforded by one witness serve to indicate the further lights that may be expected from another; and the testimony of witnesses where testimony /evidence/ being of the hearsay kind could not be with propriety received into the mass of evidence of which the grounds of the decision are comprised, may yet in the character of indicative evidence serve to bring to light the testimony of immediate witnesses who being ill disposed to that side of the cause which stood in need of their assistance would not have come forward of themselves, nor would have been brought forward at all but for the indication so obtained.

But the greater the number of unwilling witnesses are by the above or any other cause excluded the greater of course must be the number of willing witnesses in proportion to the whole number brought forward and considered.