Evidence

10 July 1806

Exclusion Improper III Deception

Reason having nothing to do in the matter of the whole law on the subject having been settled by the blindest /blind/ prejudice - it is almost lost labour /little better than labour thrown away/ to search after the ground. The following is likely as any other. Fear of deception forbids the admission of a man of his own behalf /[...?] testimony to his own advantage/: fear of vexation, to his own prejudice: both /have/ those causes of exclusion have /both/ concurr.

The complexity of the case the confusion resulting from it being so much the [...?] have - the shelter /scream/ to error - the fence[?] against the light of truth is so much the more effectual.

Whatever may have been the reason, or substitute for a reason - the rule in of the states[?] is this. Our defendant shall not be admitted to depose to the prejudice of another. Why not a co-defendant to the prejudice of a defendant? Is not the testimony of a stranger received against him without scruple? Unquestionable. What then is it that you are afraid of? Is it that an associate, as such, is more likely to violate truth to his prejudice than a mere stranger?

The fear of producing vexation (will it be said[?]?) forbids us to examine a man in a cause in which he himself is defendant, although the points to which it is proposed to examine him do not affect himself, but another person made a co-defendant with him in the same cause. The fear of the vexation? /Vexation?/ - good: if he be unwilling, and refuses - But suppose no unwillingness: - what becomes of the vexation then?