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2 April 1805
Evidence
Securities
Ch. Procedure Technical
Punishment
''. Technical System - No check to Mendacity
Under the technical system the matter is /matters are/ thus arranged.
Thus these are matters arranged. For mendacity, no punishment but where by the previous existence of an oath it has been previously converted into perjury. But, for the conversion /if converted/ of it into perjury, an oath must previously have been administered: but to /had/ a party an oath is not administered. ask why not; no answer is to be found. But in judicature, i.e. in judicature conducted upon this system, perjury is not understood to be the offence of any other person than a witness. Moreover no man ought to be a witness in his own cause: the station of party is one station: the station of witness is another; to a /the station of/ a witness the licence for /granted to/ mendacity does not extend: to the station of party it does extend: to a party, every thing is allowable. what a man says in the character of a witness, is testimony: in testimony mendacity is not allowable: what a man says in the character of a party, is more allegation: in allegation, it not being testimony, mendacity is allowable. Ask Cicero else; the greater teacher of moral duty: - concilium sit oratoribus, aliquid [...?] in [...?].
True it is that in certain instances a party is subjected to examination: and in the case of such examination mendacity is converted into perjury. But this is only in particular instances: and in these instances being considered as a witness, he is treated as such but in all these instances the jus mentiendi[?], the corner stone of the technical system is carefully preserved. In whatever is concluded as non allegation, the privilege of lying is carefully preserved. It is no check to lying, that secured[?] its privilege that on this or that particular occasion it is made punishable so long as there are occasions in which it is not punishable, and the number of those occasions is left to a man's choice.
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Title: [23 April 1805 Evidence Securities]Description: 23 April 1805 Evidence Securities Ch. Procedure Technical ''. Allegation is Evidence In fact, and probably /surely/ not without design, under the technical system allegation is carefully distinguished from evidence. Call it evidence, it might in case of mendacity, be punished /stand exposed to punishment/: call it allegation - bare allegation, a pretence is found, crude as it is, for exempting it from punishment. View it in the true point of view, view it otherwise than through the medium of habit and prejudice, the appellation of evidence belongs to it with no less propriety in the one case than in the other. In point of utility there is no better reason in this one case than in the other why mendacity should go without punishment or without shame, why a certainty of success should be secured to its endeavours /its exertions/. /or why it should be crowned before hand by a /the/ certainty of success./ Yes: evidence it is in both cases. In both cases it /the one case as well as in the other, it/is even capable of appearing in all sorts of shapes from the most trustworthy down to the least /that which is least so/ trustworthy. So what is called allegation the original allegation of the party is it of the nature of makeshift evidence? is it for example no more than Hearsay evidence? Thus it may be and often is: though not necessarily: but of this sort may be that which is called evidence, and yet be received have its weight and a weight sufficient of itself to decide the cause. Is it self-serving? but so is that which is called evidence: yet this is not only received /admitted/, but on a thousand occasions, and under the established system, admitted to be conclusive. All that can be said is - that the allegations in a cause are very apt to be of the nature of Hearsay and other makeshift evidence, and that any may be accompanied with a just claim in cases where the witness the self-regarding witness the alleging party, has not been in a situation to add to such his transmitted evidence, any immediate evidence /testimony/ - any information derived from his own knowledge.
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Title: [29[?] Feb y 1808 Scotch Reform]Description: 29[?] Feb y 1808 Scotch Reform Letter VI Omissa & Facienda II. No Allegat sans Oath II. 1 [...?] No Allegation without oath By allegations are here meant declarations, assertions averments, by whatever name called made by a party in the cause /in the suit/: [...?] as will the main[?] statement of his claim (whether in the way of demand or defence) as any testimony which it may happen to him to give /deliver/ in appeal of it. By oath, I understand whatever solemnity together with the penal consequences attached to its [...?] /[...?]/, is employed for the purpose of securing the veracity of the testimony: a [...?] affirmation consequently, wheresoever that species of solemnity /form of attestation in that form/ is admitted. And where is the occasion[?] from which, without printing a licence to wrong according to the nature of the case it can be excluded? Giving /To give in any case/ admission to any allegation without oath, is in that case to grant the mendacity-licence above spoken of in the list of the devices employed in lawyercraft (Letter I. p. │ │)
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Title: [30 Dec r 1806 Scotch Reform]Description: 30 Dec r 1806 Scotch Reform To L d Grenville Omissa 3. Pleadings 3. Pleadings without truth, shape or limit. So far as concerns the disregard to truth Scotch pleadings are pretty much /in the mass/ upon a par with English ones: on [...?] with pleadings all the world over, whoever Judges pay in the shape of fees, [...?] its consequences the technical system is established. In one thing they fall short of the English, viz: that they do not exhibit that hatred and contempt for truth /those wanton [...?] upon truth/, thus habit /delight/ in wallowing in mendacity /vice/ and nonsense which constitute a privilege so dear to the hearts /valuable in the eyes/ of English lawyers. The lies in Scotch pleadings are not like those in the English the lies of the lawyer, and of him only and for his benefit alone [...?] the lies of the suitor; as to the ground at least, the lies of the suitor; the improviding[?] only being the lawyers handy-work: they are not lies of mere wantonness, but grave, sober, well-considered lies having a special object, disregard calculated to gain a point: they are not irrelevant but apposite lies. The remedy would be very simple: withdrawing the existing mendacity purse[?]. In English Equity pleadings, the Defendant in his answer is already upon oath: the mendacity licence extends not beyond the plaintiff's side. On that side the removal of it (needs it be said?) would be just as easy as on the other, but the end would have been effected ages ago, were it not that the interest of the partnership would have been hurt by it. In Scotch pleadings /procedure/ in which English Equity is happily unknown, take the power away alike from both sides, this part of the abuse vanishes. In the English Common Law pleadings the [...?] part of the [...?] being composed of lies, this could not be done: unless by way of giving a zest to mendacity /learned gentlemen/, done to have it in the form of perjury, in this as in so many other instances.
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