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PROCEDURE Evidence
The execution of a Law depends upon the
union conjunction of these 2 things in the same person or in the same set of persons necessary to minister to the it's execution of a Law
Interest Motive and Power: [meaning by Interest, not
merely a pecuniary one, but any thing principle whether
referable to the concupiscible appetite or the irascible
that can be depended upon for it's acting
as a motive upon men in their individual . the majority of mankind.]
[We may often observe great pains taken by the
Statute Law to create one to bring about the case
wherein the Common Law has taken away the
other]
At the same time that When therefore we observe <add>If this be true</add> the Statute Law takes while it gives one,
we may suffering very patiently the Common Law to take
away the other, we need not wonder to see a still greater (debility
the consequence of it's efforts] so often as
we do the parade of effort, and debility and debility
the consequence.
That Interest is to be reputed for as to the competency, which arises only upon the supposition of the natural guilt of the "acc"used. ex gr. the general interest in the enforcement of a Law.
having uppermost and anger at command
With what degree of propriety the founders of our
the prevailing System of evidence have acted, in confirming rigorously attacking
the consequence of incompetency to that sort
of interest which [has it's] roots [in] arises out of the concupiscible
appetite, in disregard to the exclusion of the irascible whence the origin of the distinction exclusion in
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in the breasts of those who formed it, whether,
(as men have no surer mode of judging of the sentiments
of others more obvious of than by analogy to their own, And even here to the case where the gratification of that appetite is either near or certain ) from the habit
of having lucre uppermost, and anger at command,
it is not my present business to enquire: this at
least will be granted, that any no means of uniting promoting the
union between the 2 desiderata postulata beforementioned ought ever to be omitted, that is consistent with
the reigning system principles received that is received, ought ever to be omitted.
Accordingly, when as a help to its execution
the Law gives a new Interest where more than there was
before, it may at least contrive not to take drive
away a power not accompanied by a defect of power out as it were by means of that very interest which of that power which together gives
with a certain tho' weaker & more variable degree of interest
subsisted already in the subject
To come more to particulars, a Law which
gives promises a man a reward for in order that he
may have an interest, that in some cases he might there may have an interest where there would be none otherwise should at least permit him to
wave the reward that when he has an interest which, [+] in the large sense of the word he may always have
the power.
A Law of that kind which the law regards not deems not no destruction exclusion of competency which gives a reward to an informer
in order to engage 2 men by the ties of interest in to
it's service perform one out of the 2 different parts of informer
and evidence for it's service, should permitt him
to waive it when there is but one man to
perform both. & that one man already engaged
of himself by other tyes. — by motives by which
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NOTE A
fixed rules
habit of reasoning should run in the same track
Why this fixed rules of the common Law should
have consider'd only that sort of interest which
from the animal concupiscible appetite exclusive nature of the
concupiscible appetite should have governed the fixed
rules of the Common Law may be accounted for
in a more satisfactory manner by the consideration considering
that it is the concupiscible only & not the
irascible that has any external evidence index <add>symptom proof manifestation</add> of it's existence
& measure of it's degree, I mean viz: the Sum
that may be gained; general rule whereby the variations of it's influence on different persons may be determined which for want of any
better general rule, has is always supposed to
have the an same influence on every one [alike.]
The common Law therefore which works pushes on <add>proceeds</add> by general
rules, & cannot bend depart them to a coincidence
with the various inflections of particular utility
nor stop them in their career, stamps is reduced to incompetence
whenever it sees this index & this measure,
to how small a degree soever it points, &
no where else.
But this means is not sufficient of itself, to account
why the habit of reasoning, when the question
is not what is, but what ought to be, not what may
be consistent with the general rules of Law which they
last, but what corrections & modifications shall be
administered to them, should run in the same track
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Note B
Every one knows, that how of Law, pressed by the
inconveniences that arise out of their rules in
order to get out of them, in case of the greatest have cut the Gordian
knot, & run into a fiction. A man who has
received an injury in secret, as though he has
no witnesses, can not be a witness for himself:
he may however be a witness for the thing
in order to bring about a punishment of which
when inflicted he himself will have the benefit:
at all events in the gratification of his revenge irascible appetite:
commonly in the compensation of his loss suffering.
healing the wound given to his concupiscible
no incompetency for is created for the latter character.
function.
To swear to muniments
Conclusion, — a Man should have it at any
time in his option to restore himself to competency,
by waiving the penalty, to the benefit
of some fund — To swear to collateral acts, as service of muniments. Not the Parish (for that,
where the informer is a large occupier, may amount
to about be almost the same thing as himself. as his own
but the County
when there is almost as great an interest in the regular
And this, if he be the party grieved, & the only
Evidence - as in the Fish Act 5. G.3.
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