date

2 April 1805 Evidence Securities
2 April 1805

Evidence

Securities

Ch. Punishment

The power of oppressing /oppression/ thus included in the [...?] mentioned thus given to parties thus given to allegations, is beyond measure more effective /more salutary to injustice, more fatal to justice/ than if given to testimony /testimonial [...?]/ given to witnesses in (viz: extraneous witnesses) and to parties in the character o f witnesses. By mendacious testimony, no point or [...?], any further than as it is believed /obtains evidence/: and being by the supposition mendacious /false/, the preponderant probability is that it will obtain evidence. gut that /in order that/ by means of these mendacious allegations a malâ fide suitor should gain his point, it is not necessary that the allegation should in the end have any the smallest chance of obtaining evidence. The object is to make the suit more as a certain length of way: viz: the length of way which in virtue of the pre-established order of things it travels of course in consequence of the exhibition of an allegation to that effect. This length of way it is sure to make: for the mother of this pre-established system - the Judge, for the purpose of holding himself warranted as subjecting the other party to take[?] the ulterior steps in question, the Judge, be the allegation ever so flagrantly mendacious is predetermined to take it for true /act as if it were true/ /believes it to be true/. or what comes to the same thing, to avoid seeing out the falsity of it, and to act in a manner in which /in point of justice and honesty/ he could not be warranted in acting, upon any other supposition than the certainty of its being true.
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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.
  • Title: [[094-298v] 21 July 1803 Evidence]
    Description: [094-298v]

    21 July 1803

    Evidence

    Pre-appointed

    III Judge[?]

    The intervention of the pre-appointed attesting witnesses mentioned[?] as such upon the face of the deed, ought it to be considered as putting an exclusion upon the testimony of all or any other witnesses? - No; most certainly. To put such an exclusion would be to render the validity of the contract compleatly dependant upon the pleasure of the individuals whose testimony had been thus employed. They might rescind it by perjury: without any such guilt or danger, they might rescind it by simply keeping out of the way.

    Supporting two attesting witnesses, both alive, and both forthcoming /amenable/, is it necessary that both of them should be warranted. Not according to English law which [...?] chief in general with one[?] witness. Distance may render the examination of them both, if performed viva voci[?] a matter of unnecessary expence. But the objection will have been removed, if one of the parties declares himself upon oath not satisfied with the deposition[?] of one alone of the two witnesses, especially if he offers to defray the expence in the first instance.
  • Title: [6 July 1804 Procedure & Evidence]
    Description: 6 July 1804

    Procedure & Evidence

    Evils causes

    4th order

    '.2 Fallaciousness

    2. Evil the cause of which is sought - -- 2 evil of the 3rd order

    Fallaciousness in this or that article /lot/ of evidence.

    I. Personal evidence and written evidence

    1. Natural causes

    1. Influence of the several causes of incorrectness in testimony: which see.

    2. Influence of the several causes of mendacity and bias in testimony: which see.

    3. Insufficiency of the several causes of veracity: which see.

    II. Factitious causes negative.

    1. Omission on the part of the legislator to require pre-appointed and thence trustworthy evidence in cases that admitt of such pre-appointment: i.e. of a ----- of witnesses /evidence/ to ---- for the proof of a fact before it has taken place. See

    2. Omission on the part of the legislator to make the requisite arrangements for the preserving by registration such evidence as requires to be preserved.

    3. Omission on the part of the legislator to ---- for all cases alike (particular cases /specified cases/ excepted, where the evil of vexation and expence would preponderate) that mode of extracting /extraction/ the evidence which is best calculated for rendering it trustworthy: such alone excepted in which the advantage in point of trustworthiness would not pay for the evil in the shape of delay, vexation & expence.

    III. Factitious causes positive

    3. Positive encouragement given to mendacity by the legislator and under his authority by the judge, in various ways.

    Examples

    1. Facts known to be false alleged by the judge, under the name of fictions for the grounds and reasons of his decision.

    2. Parties /A party/ compelled to exhibit facts notoriously false (also under the name of fiction) on pain of losing his cause.

    3. A party allowed to advantage himself in the course of procedure in various ways, by false allegations, without being punished or prosecuted[?] in any way for the mendacity.  Re---- onwards.