[168-172v]

24 November 1803

Evidence

Exclusion

True Grounds

Modifications

The practical conclusion seems to be that so long as any unobjectionable evidence is forthcoming and producible (a matter to be ascertained by the oath of the party or his agent) the Judge ought not to admitt /keep excluded for the present/ any objectionable evidence: evidence of a sort the extraction of which would be alluded with vexation, for the sake of protecting /screening[?]/ the party in question against /from/ this collatoral inconvenience.

As to evidence of the suspicious class, for the mere purpose of guarding against deception, it has already been concluded /shown/ that it ought not in any case to be excluded. But by such exclusion was meant definitive exclusion: the reason extends not to the temporary /the momentary/ exclusion severe postponement here proposed. Such postponement /temporary exclusion/ will not always, by the concurrence of the party, be converted /become definitive/ into definitive. It seems probable, /Though in each case it/ it is by no means certain that this unobjectionable unsuspectible or less suspectible evidence is that which [...?] well bring forward in the first instance: and when it has been brought forward, what must frequently happen is that it does not come up altogether to his wishes, and that his endeavours may be to supply this deficiency by the objectionable /as yet unproduced/ evidence notwithstanding the objections that are seen to apply to it. Suppose it to be his own testimony. His anxiety[?] will naturally enough lead him to have his own story told in his own way in the first instance: and if at the instance of the adverse party or judge if the story has first been told by some less suspected evidence, it will still be natural enough for him to wish to add the supplement which he will often concur himself to have in store.

In ordinary cases - in cases of [...?] [...?] or [...?] difficulty there seems no reason [...?] the former [...?], when it happens to be entertained should not be indulged: it is the shortest and suspected course: statement and proof are thus exhibited at the same time: evidence from a less partial quarter would be apt to be less intelligible and impressive[?], for this want of true[?] accompanying explanations, which no person who is not a party is likely to be so well qualified to give. But in cases of importance[?], or when the veracity of the party is particularly open to suspicion, it may be of use that the first impressions should be conveyed by less objectionable evidence.