28 Feb 1803

Evidence

Exclusion in general

To justify the establishment of the rule, in the character of an efficient cause of truth - to justify the regarding it as an institution the effect of which will be productive of the effect /result/ aimed at by the system of procedure oftener than of the contrary result - observe the supposition that must be made.

It must be supposed in the first place that, in the aggregate of the cases to which the rule of exclusion applies, perjury will be more frequent than veracity: and they in respect to each proportion - with distinguishable fact and circumstance depend[?] to. and this in spite of the [...?] notwithstanding the influence of the docimastic process.

Nor yet is this all: for a further supposition that must be added, is - that the cause on which perjury is not only committed, but committed with success will be more numerous than the cases in which the testimony thus admitted is true, and obtains the credit which by the supposition is due to it /its due/, after the deduction /deducing/ of those in which it fails of obtaining this credit which by the supposition is due to it.

The improbability of this balance[?] on the side of successful perjury will, I am inclined to think /I trust/, appear in stronger and stronger colours, as the enquiry advances.

Suppose /the intention to commit/ perjury to be in these cases as common as but not more common than the intention to adhere to truth - on this supposition the mischievousness of these rules must be admitted beyond a doubt. For in this case, can it be supposed that the influence of the docimastic process in the testimony added to that of the sagacity of /displayed by/ the Judge in weighing it will not be sufficient to use [...?] this scale? To suppose this we must suppose two things - 1. that cross-examination and the other operations in the docimastic process operate not in any degree as a check to false testimony - 2. that truth stands no better chance for being believed than falsehood, and that no attempt at imposition in this way is ever detected by the Judge. But this supposition is in direct contradiction to continual experience.