1 March 1808

Letter VI

Omissa & Facienda

II. Allegat n sans X examin

In the opinion of the plaintiff? - no such thing. By the plaintiff no such opinion of the veracity /probity/ of the defendant is entertained: by the transaction not the slightest proof of any such opinion is afforded. What is proved is this, and this alone, viz. that in /under/ the circumstances of the individual case, all other evidence, all other chance of justice being wanting /inaccessible/, this chance, how feeble /[...?]/ so ever is preferred to none. A chance of one to a hundred is better than a chance of 0 to the same number.

Behold the encouragement /the [...?]/ given to paying: success and safety: success which by false testimony it depends upon the defendant to [...?] safety, by the exclusion of the only sanction by which the falsehood could be detected /exposed/.

In Scottish procedure this point of practice is like so many others copied from Roman Law. The case of the oath thus determined is but one out of three cases in which the premium for paying /so absurdly and mischievously/ is held out. Supplying[?] oath where the oath is called [...?] and that where it is called expurgatory being the two others.

The case of the English wages of law a practice at present obsolete carried the absurdity still further. Without the consent of the plaintiff, it depended upon the defendant to exonerate himself by his own single allegation, rendered trustworthy in appearance by the solemnity /[...?]/ of an oath, which deprived of all title to [...?] by being exempted from the scrutiny of cross-examination as well as from all fear of prosecution as for perjury.

Under the name of compurgators[?], a multitude of other persons procured by the party, were to swear at the same time. But all this was mere character evidence: which they swore to [...?] - nothing that had any thing to do with the transaction; nothing but their opinion, real or pretended, in [...?] /[...?] of/ in his trustworthiness: in the exclusion of every one of them were the persuasion really entertained ever so contrary to the persuasion professed, not one of them all was in any way punishable.