date

3 March 1804 Evidence Securities
3 March 1804

Evidence

Securities

Ch. Procedure Technical

''. Non-Confrontation

 [...?] This here or under Makeshift. Many Media[?]

''.1. Confrontation [...?] justice: abolition of it encourages mendacity by the multiplication of Agents through whom the information is transmitted

In the established system - in every system in which the truth of the allegation is not supported by the immediate testimony - the [...?] and scrutinized testimony of the party in whose name and on whose behalf it is advanced /made/ - mendacity receives the most adequate encouragement in its enterprises against justice.

The party say in the first instance the plaintiff tells his story in the first place to the Attorney. The bias which every man has in favour of his own cause is sufficient without conscious mendacity to produce more or less misrepresentation in the instance of privileges the majority of those who under /in/ the existing system come into a Court of law. Quantities are either encreased or diminished - qualities are either too strongly or too faintly coloured - often facts and circumstances that make against a man's wishes, especially if they reflect the /any/ slightest [...?] of disrepute upon his character - are more or less disguised or suppressed.

The Attorney who has no such /at least no equal/ bias upon his mind, shares not in any degree or at least in equal degree the false conception of his Client. But by the sinister interest constantly attached to his situation he so far from being urged to dispel the falshood and bring the truth to view, he is urgent to thicken it. He has every thing to hope and to gain without any thing to fear by keeping the mask on the falshood, every thing to lose by the removal of it. By extracting the truth from the Client, he loses the benefit at any rate of that one cause: if, in his endeavours /course of/ the operation he happens to give offence to a man the state of whose mind is such as disposes him more or less strongly to take offence, not only the cause is /may be/ lost, but the Client: not only that one cause, but other causes the indefinite train /source/ of other causes that might have flowed from this same source.
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  • Title: [3 March 1804 Evidence Securities]
    Description: 3 March 1804

    Evidence

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    Ch. Procedure Technical

    Falshood formed /encouraged/ by

    Law Agents for want of

    Confrontation

    Nothing can equal /exceed/ the security with which falshood in this case obtains the assistance /benefit/ of an accomplice. Not only no punishment but scarce any the slightest danger of any the slightest risk[?] of disrepute /loss of character/ can attach upon any such existence of interested /professional/ prudence. The claim will miscarry /cause will be lost/: the Attorney forsees it will: - but he has his answer ready. It was your own doing: did not you say /tell me/ so and so - does it not appear upon the face of the Case which I took down from your mouth, and which you heard and /or/ read after I had penned it? Was it for me to contradict or so much as doubt you in regard to a fact that lay within your own knowledge? was it for me to charge you with either advancing falshood or with suppressing or disguising truth? Was it for me to suppose you /charge you/ capable of deceiving your own adviser, and where the deceipt could not but operate to your own prejudice?

    The professional interest of the Attorney prompts /urges/ him to bring forward every communication that can tend to bring in /promote the constitution of/ the suit, to keep back every communication that can tend to prevent it. in the one case to bring forward the false just as much as if they were true. in the other case to keep back the true, just as much as if they were false. Is there common sense in the expectation - that the general course /train/ of conduct should run on in opposition to the general stream /force/ /current/ of interest?

    In this profession, as in another, that instances may not be found, of here and there an individual, who having laid it down to himself as an inflexible rule, to be guided without deviation by the interest of his client without suffering himself to be biased by opposite personal interest arising out of his profession - having once for all laid this down to himself /this course of conduct/ in the character of an inviolable rule /law/ should throughout preserve resolution enough to persevere in it, is certainly not impossible, and may without danger of inherent[?] /practical/ error be conceded. But in this profession of all others - not to speak of other professions will any one seriously contend, that a stream of probity thus [...?] can reasonably be looked for on the part of the birth[?] of men[?]?
  • Title: [3 March 1804 Evidence Securities]
    Description: 3 March 1804

    Evidence

    Securities

    Ch. Procedure Technical

    Falshood formed by

    Law Agents for want of

    confrontation

    Sooner or later - either in the shape of a Case for an Opinion, or in the shape of a Brief, containing Instructions for the Trial the statement goes /passes/ from the sort of lawyers called an Attorney to another sort of Lawyer called a Counsel: and in /to/ the general of falshood /mendacity/ the assistance of this sort of lawyer is secured, by an interest which if it be not of exactly the same shape as the preceding, is at any rate fully adequate to the production of the effect. At this stage, happily /most commodiously/ for this branch of the profession, every idea of responsibility in respect of the truth of the statement, is compleatly vanished. The truth of the statement is in this quarter to be taken for granted: it would be officious, impertinent, troublesome to both parties, unusual, repulsive, incidious, repulsive, and thence even disreputable to doubt of it. It would require a degree of time and attention, which in the habitual course of practice no Counsel in considerable business has it in his power, had he it ever so much in his inclination, to bestow. In the estimation and good will of his Clients of both classes, Attorney and party, the Counsel rises in proportion to the degree of confidence with which he adopts and insists in the truth these statements in which on one side or the other, not to speak of both, there is almost always more or less of falsity, and of such falsity as any man in his place might see through /discover/, if it were his wish to do: a falsity, of which in a general point of view he may therefore be pronounced conscious. In the estimation of those on whom his emoluments and prospects depend he will rise /raise himself then/ in proportion to the zeal with which he exerts himself to gain evidence for this falshood /these falshoods/: and by such zeal there is no one in whose estimation he will lower himself.
  • Title: [18 Sept. 1803 Evidence Instruction]
    Description: 18 Sept. 1803

    Evidence

    Instruction

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    2. Pecuniary interest

    Time

    Clearance or

    If however it be really supposed, that by any such mechanical process the mind of men can really be cleared of interest, or /and/that the security /probability/ for truth for the absence of incorrectness and mendacity is, after the performance of any such ceremony, in any considerable degree greater than before, the supposition will upon examination be found delusive. Against simple incorrectness it will be found of scarce any use /little or no use/. Against mendacity - against wilful perjury - it will be found of no use at all.

    Mendacity, wilful perjury out of the question, any departure from the line of perfect correctness, of absolute /exact/ truth can have no other cause than bias. /come under no other case than that of bias./ Whatever deviation from that line may later place in his testimony, the witness himself is not sensible of any such deviation: if he is, so far as he is, so far is the testimony mendacious, and himself a perjurer. In this case whatever may have been the state of his mental faculties in relation to the facts in question - his perception -his judgment his memory before the operation, it does not seem natural that by the operation any very determinable or material alteration should be produced.

    But suppose the bias previously existing and in action and suppose the legal process to have cleared away this sinister interest - this cause of aberation from the line of truth - there is /remains/ another which it is not in the nature of it to clear away, and which /of which the action/ will naturally be more powerful than that of the bias itself. This is his regard for his own character - for his own reputation in respect of veracity, his sensibility to the pains of the moral sanction. Before the time and occasion for the performance of this legal ceremony can have taken place, he will almost always have given his account /statement/ of the affair: it is from /by/ this statement alone that in general the party who has an interest in the restoration of the testimony can obtain that information, from which his inducement to put in practice the expedient for the clearing away the objection was denied. But having once given his account of the matter, the witness is concerned in point of reputation to abide by it; What he has to lose by such departure /were he to depart from it in any considerable degree to depart from it/ by such departure is so much of his reputation as is at stake: