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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: [6 April 1805 Evidence Securities]Description: 6 April 1805 Evidence Securities Ch. Procedure Technical ''. Allegation is Evidence So far as /concerns/ matter of fact is concerned whatever is or can be said by or on behalf of any party litigant, whether as of his own knowledge, or not as of his own knowledge, is still in its nature a mass or lot of evidence: if as of his own knowledge the more ordinary kind of evidence immediate evidence: if not as of his own knowledge, it is still evidence, though belonging to the head of makeshift, say for example Hearsay evidence. The Plf is a shopkeeper. The defendant he says had goods without paying for them to the value of twenty days labour out of his ship: it is for this that he demands payment It was by the Plff above no other person knowing any thing about the matter that the goods were delivered, and so the Plff says in his allegation says, the evidence thus delivered by the Plff is immediate evidence: if it was by several of the Plff's, the plaintiff not professing to know any thing about the matter but from the report of the servant, the evidence given by the Plff in and by his allegation /the demand[?], whereby he alleges the existence/ of the cause of action, the evidence thus delivered by him is of the nature of makeshift - of Hearsay evidence. in this case what he can not say and say with truth is that he knows the existence of the fact /is known to him/ of his own knowledge: - what he can say, and mendacity apart can say with truth, is - that the existence of the fact though not known by him of his own knowledge, is believed. If not believing it, he says that he believes it, if without oath, he is a liar: if under oath, a perjurer.
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Title: [2 April 1805 Evidence Securities]Description: 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: [26 Sept. 1803 Evidence Instructions]Description: 26 Sept. 1803 Evidence Instructions Considerations Makeshift Hearsay Second species of Makeshift evidence - Hearsay Evidence contestable, Oral evidence of oral evidence: oral evidence sanctioned scrutinized and cross-examined of oral evidence neither sanctioned, not contestable, sanctioned nor scrutinised nor cross-examined. 1. In the case of hearsay evidence, against the characteristic fraud, the same precautions /vigilance/ will be requisite on the part of the Judge as in the case of written casual evidence. And moreover to this danger is added that of unintentional incorrectness in the relation /statement/ given by the deposing witness of the discourse supposed to have been uttered in his presence by the supposed percipient witness. 2. In the case of hearsay evidence of more than one remove the Judge will of course resort at once to the supposed percipient witness the correspondence /the attention of the Judge and through him of the parties/ will of course be directed at once to the supposed percipient witness. Should he be at home and forthcoming, the occasion for applying to any intermediately reporting witness or witnesses will of course cease. Should he be be in foreign parts, every thing that relates to the provisional admission of his evidence and to the purification of it applies to this case in the same manner as to that where between the deposing witness and the supposed percipient witness there is no supposition of any intermediate witness /pen or tongue/.
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