Evidence

17 Sept[?] 1803

Exclusion

False grounds

co-Defendantship

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.