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18 June 1805
Evidence
Introd
Ch. Procedure Technical
''8. Mendacity encouragement
limited to parties
To mendacity, (and its /not to speak here of its next of kin/ temerity) two distinguishable checks are opposed, wherever it is seriously wished to be prevented: punishment and cross-examination: terror of future contingent punishment under the name of punishment in a large lot, and present shame, which in itself is in effect a present punishment. + Of what concerns punishment, as well as of what concerns judicial examination mention will be had /consideration will be had/ in detail, in their proper places: suffice it here to call to view in general terms the necessity, the indispensable necessity of one or both of those securities.
What, then is to be expected of a system which [...?] as it were cautiously to apply either of these securities, or any other unless it be in the shape of costs the prospect of an inadequate drawback to the profit of the mendacity at an indefinitely remote as well as future contingent period, puts it in the power of either party, upon the mere condition of pronouncing or enquiry or existing which his professional agent pronounces or signs a certain form of words, puts it in the power of either party to drag his adversary through a totally [...?] mass of vexation, expence and delay for a series of months or even years.
I open a book of French Procedure. it consists of no fewer than most closely printed 40 /10/ pages. It is stock[?] full of formularies. From beginning to end neither in any formulary, nor in any other part of the book in I find any mention of punishment as for mendacity or honesty on the part of either party, or on the part of any professional agent of either party, or so much as the ceremony of an oath, much less any such security as that of cross-examination by the adverse party in the presence of the Judge. decrees upon decrees are fixed, allegations and received, necessity of counter allegations respond[?] upon the adverse party, examination in the dark and secret way there is without opportunity of cross examination, examinations upon paper in a never ending string granted on one side required and rendered necessity on the other, all these sources of vexation and expence and delay set running in full streams, upon no better ground than a written assertion or even [...?] without assertion, on the part of a lawyer /humbug agent/ to whom every lie is a source of profit, and all this without any the slightest security for the truth of any thing that he says.
Securities - the Punishments
Securities
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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: [18 June 1805 Evidence Introd]Description: 18 June 1805 Evidence Introd Ch. Regular [...?] Diverse classes of professional hands whose work /functions/ are useless in toto to the purposes of justice. In a Court of Summonary Procedure, neither of those instruments of the Daemon of Chicanery the Special Pleader and the Equity Draftsman have /can ever find/ any place. Whatever is done by either of them belongs in toto to the account of made business more /completely unnecessary, much more/ than useless business. In the Circle called Court of Common Law, the Special Pleader that is a pair of Special Pleaders on on each side, bring out allegation upon allegation, altogether without one, without any search for veracity on either side, and under the constant incitement of an interest more or less [...?] in permitting mendacity, on whichever party is in the wrong; and though neither party should have any impulse /temptation/ /interest/ or desire to inflict needless vexation expense and delay upon his adversary, then their aptitude are sure in every cause /can not in any cause fail/ to have an interest in keeping these affections of the highest possible degree of morality[?] upon both. In the courts called Courts of Equity the /under the system of/ Draftsmen, with their Bills and Cross-Bills their Answers and Cross Answers, the check upon mendacity is not, as in the other case, altogether wanting as in the other case, but the mass of vexation expense and delay is in an enormous degree even[?] /a great degree still more/ oppressive. Special Pleading consists in reciprocal allegation without enquiry or the possibility of enquiry on either side. Equity Drawing consists in enquiry but in enquiry in the form of which neither truth nor despatch, but vexation expense and delay, for the sake of professional profit, have been the manifest object in view: and much is the delay, that after a series of enquiries still longer than the entire duration of a suit at Common Law, whatever truth on both sides requires on this mode of proceeding two suits, each longer than a [...?] [...?] Common Law: and at the end of this double enquiry it is only from those two individuals, the parties, that whatever truth is there extracted is obtained: this remnant the remuneration if extraneous[?] witnesses which in Equity if performed at all is performed in a different, and by far less mistakes made.
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Title: [1 Feb y 1808 Letter VI Omissa]Description: 1 Feb y 1808 Letter VI Omissa & Facienda No Allegat n sans X exam After no Allegat n without cross examination By this I mean not to say that no obligation should ever be delivered, but under the scrutiny of cross examination actually applied to it at the time: By such a regulation compleat exclusion would be put upon all affidavit evidence: and thereby abundance of delay vexation and expence necessitated, which without prejudice to rectitude of decision might be saved. On the occasion I suppose it according to the preceding rule settled that no allegation should be received without oath: or at any rate without the party's being liable, and being a [...?] of his being liable, to be put upon his oath to confirm the veracity of his allegation by the securities attached to the solemnity of the oath. This being assumed, what I mean to say here, is - that no allegation ought to be received though under the sanction of an oath, without a man's being either subjected to the scrutiny of cross-examination at the time, or being liable and understanding himself to be liable to be subjected to it at some future time: viz. at the requisition of the Judge or at the requisition of any party interested, if acceded to by the Judge: regard being had to the [...?] of the ends of justice, as in this as on so many other occasions are liable to antagonize, viz. rectitude of decision on one side, avoidance of delay vexation and expence on the other.
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