10 July 1806

Evidence

Exclusion

 Juror[?] whose to reject them? In [...?] Causes? or in Exclusion Proper? or in Securities

Note ( )

On an indictment when the defendant being guilty, has a witness ready to answer for him, a convict is held to oath what use shall be made of the evidence. If the story which the witness is /has/ to tell will not bear scrutiny, the defendant does not stand trial, but suffers judgement to go against him by default: in this case upon his coming up /in person in [...?...?], before all the Judges of the Court,/ to receive judgement, there it is that the /in mitigation of punishment/ evidence is brought forward in the shape of affidavit evidence. If the witness and his story, true or false, will, it is thought bear scrutiny, then it is that the defendant stands trial, and at the trial the witness is produced, to deliver his evidence vivâ voce /under the check of/ and cross-examination. In this latter case the advocate fails not to draw the attention of the Judge and Jury to the choice thus[?] made by his client, holding it up to view the character of a sort of presumption or circumstantial evidence declaratory of his sincerity and innocence: the learned Judge sitting still and hearing with the most /never failing/ undisturbed composure, an experimental proof, demonstrating that the only form in which he and his learned[?] position ever suffers themselves to receive evidence, is a form so rich in perjury, so ill adapted to the development of the truth of the case, in all contested questions as to be abundantly unfit for use.

At the very last sitting on the Court of the King's Bench (sittings after trinity term[?] 1806) two days immediately following produced so many instances of the choice thus made, the reason given for it, and the argument built upon it as above. One was the case of R. v. Barrat A prosecution for the defendant[?] for an assault at the prosecution of [...?] 3 July 1806: the other the case of R. v. France[?], also for an assault, at the prosecution of Norton; 2nd July 1806: Gibbs for the defendant.