[094-307v]

27 Oct 1806

Evidence

Substitution of interests

'. 8 [...?]preferred

Ch. 4. Force 3. Evidence put into bad shapes.

'. 1. Best and worst shapes of evidence.

Whatever be the same causes which /considerations that/ require that if practicable, (prudentially as well as physically) he who in a cause /suit/ of his own speaks in the character of a witness /delivers his testimony/, stand in the person of the adverse party as well as in that of the judge, these same considerations require, and frequently with a degree of urgency not inferior, that the same security shall be afforded for the compleatness as well as correctness of the testimony of him who deposes in a cause /suit/ which in form and appearance at least is not his own. Why?- Because it may so easily happen, and happen without being known, that in the station[?] of one extraneous witness, the force of sinister interest by which a mans testimony is asked upon, may be not /little or not at all/ inferior, may even be superior, to that which operates on him whose station is that of a party in that same cause.

Obligation of yielding testimony at the instant and in the spot without opportunity of concerning, or time for imagining, safe falsehoods or safe reticences (a), exposes at the same time to the force of counter-interrogation, by questions arising out of the answers, as well as to the force of counter-evidence from extraneous sources - in case of detected[?] monopoly[?], few thee such are the checks, to which the testimony of the party is subjected, subject as of course, by the presence of the adverse party, concurring with the presence of the Judges: these /such/ consequently are the checks /securities/ to which the salutary force of the testimony of an extraneous witness ought equally to stand exposed.

/if the arrangement which places the contending parties in the presence of each other and at the same time with that of the Judge be a right arrangement./

(a) Reticence as distinguished from falsehood, supposes absence of apt questions: by questions, supposing them answered what would otherwise have been but reticence, is convertible into falsehood.