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EVIDENCE SEARCH EVIDENCE
GUNPOWDER 12. G. 3. c...
What opinion Lawyers themselves entertain of the
reasonableness of these rules one may sufficiently understand, from
their contentedness readiness upon all occasions to suffer them to be violated upon
all occa in effect so they be preserved maintained in words name v. Evidence Civil s. I. to let full the rule fall, so it be done with tolerable decency, with a verbal pretence to cover it.
In a word if there were any thing in those that rules
(consider'd as universal) that a no person interested shall
be a witness) the whole Statute Book must fall to the ground is one continued
series of blunders solecisms & ... errors
The popular natural & popular notion concerning
the rules of evidence, is, that in matters of criminality whatever is done
in presence of any one whatever will come out, & will upon trial be made appear
to have been done, [so that there was but
any body by].
Now the rules tendency of these rules to prevent this effect is so strong & in such
a number of instances All those expedients which the Law sets or put for the accomplishment of its purposes must fall to the ground, & all it's provisions come to nothing. against permitting this of event
to take place; that either they must be alter'd,
or this could not happen a no stroke] could be given greater blow wound to the
interests of justice, than the making of them known
to all men.
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The true rule is, where the case admitts of choosing
witnesses before hand, there not to accept of any but
are disinterested
Maximum fundamentale The General Rule is, that one evidence any one Witness speaking
to a fact which he alledge to have come within
the cognizance of his senses shall govern
the decision: any cases to the contrary
can come in but as exceptions
What belongs to the doctrine Title of Evidence viva voce, is therefore principally
composed of those exceptions.
Complicity. The objection Complicity howsoever it may go to some circumstances,
cannot go to the substance of the transaction:
for this plain reason, that the fact
must be first supposed, granted to have been done before the objection can
hold good.
Now suppose the fact being certain, (& unless this be
done, the objection is nothing) & it is no matter in
what way it is proved. The use of the evidence being no other, [nor is deserving any otherwise to be regarded than so] than to induce a reasonable persuasion of the truth of the fact testified.
And this makes the difference, (and a total
one it is) between guilt criminality arisen of the
witness arising from a participation of the
crime charged upon the accused, & where arising from
a foreign crime different one.
But it is to be observed that if the guilt of the evidence
is established any otherwise than upon the
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A Wife ought not to be heard as evidence against
her Husband — good — Because if the wedded pair are amicable, it is tantamount to interrogating the Husband himself. & because if they are inimical, it is giving too dangerous a facility of gratifying the resentment. No man could be at rest if he had a spy sleeping on the same pillow
But a Wife ought to be examinable as to matters
the truth of which would turn out to the Husband's
prejudice, where that Husband is examinable
himself.
Now there are none of these rules, but are plausible
because made upon view for the avoidance of a real inconvenience danger
Nor yet are there any of them solid, right first because they plunge introductive
of a much greater inconvenience danger than
that which they avoid.
[I say greater, in the compound ratio of the intensity of
the mischief when incurred, & of the probability for chance of it's
being incurred.]
This should never be forgotten; that the marking out
of persons of any description as absolutely incompetent
& inadmissible, is a license to
all persons mankind to committ all sorts of crimes before
those persons.
Evidence of an Accomplice indemnified upon condition admitted. In several Statutes a convicted offender is indemnified upon
giving evidence to conviction of an accomplice. + + For instance by 6 G. 3. 19 There cannot be a
stronger interest. It is stronger than that of a rewarded
Informer by how much stronger it is to save than to gain.
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supposition of that of the accused, it is that of the to this purpose
a foreign crime.
But where the person author of actor of [who did] committed the crime is also the
person charged or nobody, there the objection can
have no force.
For example, as witness gives evidence of an
unnatural crime committed on with him between him & by the accused
& his credibility is impeached by this dilemma is
brought to impeach his credibility.
Either the fact was not committed as you say,
& then your evidence is not nothing true: or it was, &
then too it ought not to be regarded, you being
infamous by your own shewing.
Now this dilemma the witness may retort in this
manner.
Either I am not infamous & then your objection
is at an end: or if I am, it is only in consequence virtue
of this fact, which must therefore first
of all be supposed true. done. It being then supposed
true done, what I am is out of the question.
It is an absurdity that no usage can palliate that
the a fact numerically the same, shall go to have
the truth of it ascertained enquired after by this or that method,
according as it shall please any one to give it this
or that other name or another.
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