29 June 1803

Evidence

Written

§.3. Rules

After this indication the subject /way/ seems already prepared for the exhibition of /the reception of/ leading[?] rules: the reasons of which will be unfolded in due course.

Rule 1. On the single score /ground/ of rectitude of decision - i:e: setting aside the regard due to the prevention of delay vexation and expence[?] - testimony /evidence/ of this kind, being unsanctioned and unscrutinized ought in no case to be admitted, where the witness or supposed witness is forthcoming on a condition /known to be forthcoming at any time,/ to have his testimony sanctioned and scrutinized in whatever is predetermined /has been determined/ to be in his case the proper mode. Reason briefly indicated - 1. Inferior evidence would /not to/ be preferred to superior. 2. Danger from the characteristic fraud.

Rule 2. In this case of any class of witnesses, supposing there to be any such class, in whose /of which/ instance it is predetermined that their testimony may, without any danger worth regarding on this ground, be admitted, although it be without the security of afforded against mendacity and incorrectness by the generally established system of sanction and scrutiny, such testimony may accordingly be admitted in the first instance, on the ground of a saving in point of delay, vexation and expence: subject always to sanction and scrutiny, in case of reasonable and special cause of suspicion shown in respect either of mendacity or incorrectness. - On this ground is to be justified, so far as it is to be justified, the exemption from sanctionment and scrutiny, established in the case of pre-appointed official evidence. See the Chapter on that subject. Reason briefly indicated - absence of the ordinary causes o mendacity and incorrectness.

Rule 3. Where it is ascertained[?] that the witness or supposed witness can not at any future time be by any possibility be forthcoming for the purpose of sanctionment and scrutiny - (viz: in the case of death or what to this purpose is tantamount to death incurable insanity to a degree rendering him incapable of examination) this species of evidence ought to be admitted: supposing it not to stand excluded by a degree of disadvantage in respect of probable delay, vexation and expence, more than equivalent to the advantage in respect of rectitude of decision, consideration being had of the degree of its relevancy and importance and subject of course to whatever observations it stands exposed to on the ground of /on the score of/ interest and all other grounds of suspicion. [...?] Briefly indicated. The witness being a party to the suit, Fraud not to be presumed: mendacity not so common as veracity: deception by mendacity, if attempted, more likely to fail than to succeed /prevail/ against the causes of suspicion motivated by the instructions. Absence of expectation of profit to be reaped by the characteristic fraud; the falshood not being capable of producing its advantageous consequences /profit/ till the author is no longer in a condition to reap it /the profit/. The witness [...?] [...?] a party. Uncertainty of the time of reaping the profit from the submission[?]: the disgrace and punishment impending all the time,