date

1 March 1808 Letter VI Omissa
1 March 1808

Letter VI

Omissa & Facienda

II. No exclusion for improbity

In the midst of all these exclusionary rules, instances are known in which the testimony of a convicted perjurer has been admitted, admitted on his behalf at his own instance. I mention it as an example not of improbity, but of inconsistency: and note that here too the terms on it[?] shape in which it has been admitted, the only shape in which it would have been admitted was the uncross-examination shape of affidavit evidence.

The reason given for the admission was a very good one in the view /eye/ of common cause[?] and common branch a [...?] one: but for the admission a man though once [...?] might be exposed to the most fatal injustice: The reason was a [...?] one: but by this same reason if it be good for any thing all the exclusionary rules - the whole body of them - stand condemned.

Here, as before, like /sinister/ effects find their [...?] in the same prolific cause:

By affidavit evidence the Judge is preserved from the spectacle /sight/ of all others most advice to a fee-fed Judge, the right of the party or parties whose fate awaits his nod.

By affidavit evidence [...?] is brought to the Judicial mill: [...?] which is not /would not be/ afforded by one[?] the same testimony if delivered vivâ voce.

By affidavit evidence, falsehood is protected against /from/ the eye /gaze/ of detection, perjury encouraged, perjurers multiplied, public morals depraved.
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  • Title: [1 March 1808 Letter VI Omissa]
    Description: 1 March 1808

    Letter VI

    Omissa & Facienda

    II. No exclusion for Improbity

    By the security afforded by the suspicious [...?] which[?] on the part of even the most undiscerning mind the character and position of the witness can never fail in such a case /under such circumstances/ to draw /point/ down upon such testimony - by this security added to that of cross-examination, the admission given to such evidence has been preserved from having ever been regarded as a formidable source of danger to the amount[?] in the [...?] of defendants - from ever having been regarded as an advantageous instrument of security to individuals at large as against the aggression of criminality /malefactors/ in its most formidable shapes:- and this although [...?] have been known as which under the allowance of the Judge, men have suffered, suffered capital punishment without any ground for the infliction, other than what was composed of testimony thus circumstanced.

    If the virtue, the [...?] /preservative/ virtue of cross examination be placed by this point of practice in a conspicuous point of view, in a no less conspicuous view is placed the inconsistency[?] and perversity of those other points of practice which expose in man /men/ to less to an amoral altogether unlimited by misdecision, produced by testimony to which this[?] scarcity has been withholden. I speak of that enormous class of causes distinguished in Letter I by the name of Motion Causes: causes in which evidence is admitted in no other shape than hat of affidavit evidence: testimony delivered by a man, he [...?] further and in his own causes, and without the possibility of its being subjected to the scrutiny of cross-examination either in the vivâ voce, or in the epistolary mode.
  • Title: [1 March 1808 Letter VI Omissa]
    Description: 1 March 1808

    Letter VI

    Omissa & Facienda

    II. No Exclusion

    3. Various are the case in which a pretended pecuniary interest, created by a sense[?] [...?] as no beggar of it long before him[?] would vouchsafe to stoop for - some minute fraction of the value of this [...?] came in existence, speaks as a peremptory exclusionary shutting out the light of evidence.

    4. This together with the whole[?] remainder of the system of exclusionary rules as at present established are no more than an invention of lawyercraft, operating to the purpose /promoting the object/ of lawyercraft in a variety of ways - by making business i.e. lawyer profit, by founding uncertainty[?] by [...?] Judges with arbitrary power, and by debasement /depravation/ of the public morals and understanding.

    5[?]. Making business in an infinity of ways. The same evidence which of right for by a less extensive course you [...?] not have, pay the price for it, that price an extra price and it is yours. Thus alone a man is not a party in that individual cause, there is no magnitude of interest which the lawyers are not ready to force[?] time from for the purpose of admission by what they call a purge, [...?] the materials and composition of which their shop must be resorted to of course. Neither is there any magnitude of interest under the influence of which they will not receive the testimony on the [...?] favour has one[?] cause, on condition of payment of one extra price facing the lawyers /submitting to depredation/ in two sorts of courts - an Equity Court and a Common Law Court - the Equity Court ordering what they call an Issue - a [...?] action to be tried in a Court of Common Law after which comes an ulterior course of pillage[?] in the Equity Court.
  • Title: [1 March 1808 Letter VI Omissa]
    Description: 1 March 1808

    Letter VI

    Omissa & Facienda

    II. No Exclusion

    If one species /if it were of the nature/ of interest more than another to afford a [...?] ground for the exclusion of evidence, it would be that sort of evidence whatever it were, the seductive force of which were apt to be least obvious to those in whom it depended[?] /belonged/ to, judging and[?] for the force of which in [...?] they would on that account be least[?] upon their ground, and less apt to make due allowance for it, in like[?] making the trustworthiness of the testimony.

    But under English jurisprudence - the only species of interest by which the exclusionary effect is produced, is pecuniary interest, the sort of interest of the force of which it is least likely /possible/ that any man should fail of being duly sensible.