date

29[?] Feb y 1808 Scotch Reform
29[?] Feb y 1808

Scotch Reform

Letter VI

Omissa & Facienda

II. No Allegat sans Oath

II. 1 [...?] No Allegation without oath

By allegations are here meant declarations, assertions averments, by whatever name called made by a party in the cause /in the suit/: [...?] as will the main[?] statement of his claim (whether in the way of demand or defence) as any testimony which it may happen to him to give /deliver/ in appeal of it.

By oath, I understand whatever solemnity together with the penal consequences attached to its [...?] /[...?]/, is employed for the purpose of securing the veracity of the testimony: a [...?] affirmation consequently, wheresoever that species of solemnity /form of attestation in that form/ is admitted. And where is the occasion[?] from which, without printing a licence to wrong according to the nature of the case it can be excluded?

Giving /To give in any case/ admission to any allegation without oath, is in that case to grant the mendacity-licence above spoken of in the list of the devices employed in lawyercraft (Letter I. p. │ │)
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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.
  • Title: [29 Feb y 1808 Letter VI Omissa]
    Description: 29 Feb y 1808

    Letter VI

    Omissa & Facienda

    No Alleg sans Oath

    Two enormous[?] /all-pervading //Enormously extensive/ mischief flow from this abomination:

    1. One [...?] /is/ in the enormous quantity of balderdash habitually [...?] /[...?]/ out under favour of licence: and with it a proportionable quantity of complication, delay vexation and expence.

    The Client not being presentable for any falsity it may happen to it to contain, leaves his lawyer to fabricate allegations on his behalf to whatever effect and in whatever quantity he pleases.

    The lawyer being not only not permitted, but rewarded in proportion to the quantity, obtains at the same profit in proportion to the quantity, and reputation in proportion to the zeal of which the magnitude of the quantity is the demonstration and the measure.

    The mischief /grievance/ is but to [...?] in the English modification /branch/ of technical procedure. But in that case it is restrained in degree by the forms: the forms of pleading.

    In the Scottish branch those forms being for the most part wanting, the mischief has no bounds.

    In English procedure, the effect of those forms is to draw in some sort a line of demarcation between the clause[?] (whether demand or defence) and the testimony delivered in support of it.

    Scottish procedure affords no such line. Herein[?] another source of /and/ confusion with the complication and superfluity of matter of which it is productive.
  • Title: [1 March 1808 Letter VI Omissa]
    Description: 1 March 1808

    Letter VI

    Omissa & Facienda

    II. No Allegat n sans x exam

    The consideration which obtained a place for this rule on /proposed rule in/ the occasion of Scottish procedure, was a source of injustice and unmovably part[?] of practice which, as between Scottish /Scotch/ and English is peculiar to Scotch law: I mean the practice of referring a fact /suffering a fact to be referred/ to the oath of the adverse party, without permitting the scrutiny to be applied to his testimony so delivered.

    In general, or at least in causes[?] to a great extent, the testimony of a party, supposing it offered at his own instance, is /stands/ excluded - excluded, not admitted, although it were offered to be subjected to the scrutiny of cross-examination, as well as confirmed by the sanction attached to the solemnity of an[?] oath. In a particular case, this most peculiarly suspicious of all species of evidence is admitted: admitted, and on what terms? - on the express terms of not being subjected to that scrutiny the searchingness[?] and utility of which in the character of a security for truth is so thoroughly felt and universally acknowledged. Such is the inconsistency and absurdity[?] of this practice[?].

    Oh, but (says some one) the case and the only case in which the testimony /species of evidence/ is a case in which the trustworthiness of it i established; established by the best and most conclusive evidence: established by the acknowledgement of the particular individual himself, who himself calls for the testimony in question, approved[?] on he[?] is of the only conditions in which it is obtainable.

    In the opinion of the party (suppose the plaintiff) by whom the testimony of the adverse party (say the defendant) is called for such is the probity of the defendant that a reliance may be placed on his testimony though in his own causes without the application of that sort of scrutiny (cross-examination) which in the case of an individual taken at random would be indispensable.