1 March 1808

Letter VI

Omissa & Facienda

II. No exclusion for improbity

In the midst of all these exclusionary rules, instances are known in which the testimony of a convicted perjurer has been admitted, admitted on his behalf at his own instance. I mention it as an example not of improbity, but of inconsistency: and note that here too the terms on it[?] shape in which it has been admitted, the only shape in which it would have been admitted was the uncross-examination shape of affidavit evidence.

The reason given for the admission was a very good one in the view /eye/ of common cause[?] and common branch a [...?] one: but for the admission a man though once [...?] might be exposed to the most fatal injustice: The reason was a [...?] one: but by this same reason if it be good for any thing all the exclusionary rules - the whole body of them - stand condemned.

Here, as before, like /sinister/ effects find their [...?] in the same prolific cause:

By affidavit evidence the Judge is preserved from the spectacle /sight/ of all others most advice to a fee-fed Judge, the right of the party or parties whose fate awaits his nod.

By affidavit evidence [...?] is brought to the Judicial mill: [...?] which is not /would not be/ afforded by one[?] the same testimony if delivered vivâ voce.

By affidavit evidence, falsehood is protected against /from/ the eye /gaze/ of detection, perjury encouraged, perjurers multiplied, public morals depraved.