date

18 June 1805 Evidence Introd
18 June 1805

Evidence

Introd

Ch. Procedure Technical

''.8 Mendacity encouraged

limited to parties

''.8. Limitations to the encouragement given to mendacity - not extended to witnesses - why.

The encouragement to be given to mendacity was not indiscriminate. In whatever cause profit was to be made by it, to these uses the encouragement was to be extended: where no profit was to be made by it, the encouragement did not /was not to/ follow it.

It was accordingly to be given to parties and t both parties: because it might happen to either party, demandant or defendant to be in the wrong /and that knowingly, in/ in respect of his acting in that character and to know himself to be so. and whichsoever of them was /were/ conscious of being in the wrong, to him it could be but natural to apply the licence given to him for mendacity /his mendacity-licence/ to the purpose for which it was given to him /put into his hands/, viz: the manufacturing of those operations /fabricating of such false assertions/ to which when exhibited in the form the effect was annexed[?] of giving rise /birth/ to those operations instruments and delay, to which so many definite portion of expence at the charge of the suitor, and to the benefit and profit of the man of law were /had been/ attached.

To be given - to parties, yes; who in virtue of the mendacious assertions, express or implied, in which the delays given to them, ... to that one of them who was in the wrong) were grounded, were witnesses in /each for himself /on his own behalf/, witnesses/ put through without the name. To parties in the character of witnesses, self-regarding witnesses, yes: but not to what are commonly understood by the name of witnesses, extraneous witnesses in case of mendacity and the other securities against mendacity. To these punishment was accordingly applied, and why? 1 Because from mendacity on their part no such service as in the case of parties, as above, nor in short any other service accrued to the man of law: 2. Because on the other hand in case /[...?]/ of mendacity on their part, in case of prosecution for the mendacity, where prosecution supposes punishment by this suit as by any other the mass of profit was encreased: which suit, even and above the pecuniary profit would afford to the man of law the opportunity of encreasing his stock of [...?] popularity, by the zeal /reputable quality/ which the prosecution would afford him an opportunity for displaying - the law of justice.
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  • Title: [13 June 1805 Evidence Introd]
    Description: 13 June 1805

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    4. For the purpose of the discourses thus to be carried on by and between the parties through the endeavour of such their assistants to exempt them, one or both of them the force of these obligations /employment/ of punishment and terror, from those his which were at the same time to continue to be employed for the purpose of securing against mendacity and temerity the evidence of extraneous witnesses.

    5. In the case of all such assertions on the part of either party, (in particular of the defendant, the party most generally interested in the production of delay) as of time, might in reality or in appearance have afforded a just and reasonable ground for ulterior instruments or operations, to give them, coincidentally without opportunity of disproval or contradiction, the immediate effect of [...?] on the part of one or other party or both the necessity of such ulterior instruments or operations.

    By the former /forth/ arrangement, mendacity, in so far as the man of law was in the way of reaping his profit from it, was trained: by this fifth arrangement it was crowned: whatever profit it might aim at, was then secured to it. By the former false [...?] were permitted; by the latter being [...?] for true, they were encouraged and [...?].

    6. Not to suffer so much the proxies of the parties to come to any explanations in his presence with relation to the facts in which the ultimate [...?] for the fall principally and ultimately in question on the cause, [...?] far as [...?] mass of operations and instruments had been interchanged between them of course a mass as large as there could be found in so sufficient pretence for making.

    By this refusal a diverse number of [...?] were answered at once

    1. He saved these his dominant partners from the obligation of presenting, and himself from that of receiving any of those explanations which if they could not have been kept had might have put a premature period to the cause.

    2. By forcing them to perform their operations and before other eyes and present their instruments to their hands, he promoted the [...?] of the list of objects abovementioned, encreasing the number of hands through which the parties were to be made to save the gantlet for his benefit, 3 d So many offers as could thus be piled up, are upon another, take Offer upon Pelion[?], all out of the eye of the principal, so many sources and scenes of occasional misconduct, real or pretended, on the part of parties' Agents and officers, each [...?] every other, so many occasions for incidental applications to be made to him for redress, applications producing more instruments, more operations, with their inseparable fires[?].

    In regard to each of these several contrivances a word or two of explanation or observation may be of use.

    On the present occasion I give no other than the leading features of the technical system: those which contrast at first view with the corresponding features of the natural. In relation to those, what ulterior features there may be occasion to bring to view will be but so many fillings up of the outline traced by those more essential ones: or to change the metaphor, os many edifices erected in those broad foundations, so many dreams drawn from those copious sources.
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    But costs of suit: especially is being paid by the party in the wrong, they include those of the adversary /his injured/ whom he has injured: - costs of suit - the obligation of paying them - does not this burthen operate with the effect of punishment: and does /is/ not this burthen increase with /augmented by/ any mendacious allegation with which a mala fide suitor torments his adversary?

    I answer - by no means. In the first place this burthen - this punishment is not attached to the offence with any uniformity and steadiness.

    In the next place, if it were ever so conformity, it would not yet have the effect of depriving mendacity of the included and necessary licence. Of every such allegation, whatever in respect of costs may be the ultimate effect, the unavoidable effect is to give rise /existence/ to /for/ the present, to the projected /preconstructed/ /predetermined/ /intended/ portion of delay, vexation and profitable expence: not forgetting that portion of the expence, which in the shape of profit, going into the profit of the man of law in all his varieties was the final cause of the establishment of the licence. But for the purpose of iniquity and oppression the present /immediate/ effect is all that is wanted: could the burthen of the suit be endured /borne/ to the last stage, the burthen of the expence might then be transferred or not transferred - but if transferred, never more than in part, from the oppressed to the oppressor: but before this can happen the intended victim is involved in ruin, in which be he plaintiff or defendant, is included the loss of the cause.