And
this necessity is not confined within the strict limits of physical
causes, but is more lax, and takes in _moral and even presumed and
argumentative necessity_, a necessity which is in fact nothing more than
a great degree of expediency. The law creates a fictitious necessity
against the rules of evidence in favor of the convenience of trade: an
exception which on a similar principle had before been admitted in the
Civil Law, as to mercantile causes, in which the books of the party were
received to give full effect to an insufficient degree of proof, called,
in the nicety of their distinctions, a _semiplena probatio_.[52]
But to proceed with Lord Hardwicke. He observes, that "a tradesman's
books" (that is, the acts of the party interested himself) "are admitted
as evidence, though no _absolute necessity_, but by reason of a
_presumption_ of necessity only, _inferred_ from the nature of
commerce." "No rule," continued Lord Hardwicke, "can be more settled
than that testimony is not to be received but upon oath"; but he lays it
down, that an oath itself may be dispensed with. "There is another
instance," says he, "where the lawful oath may be dispensed with,--where
our courts admit evidence for the Crown without oath.
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