date

1 March 1808 Letter VI Omissa
1 March 1808

Letter VI

Omissa & Facienda

II. no exclusion for interest

II. 3. No exclusion of evidence on the ground of interest.

The absurdity and ingenuity of the exclusion put on such a multiplicity of pretences[?] upon the light of evidence, is more commonly and impressively demonstrated by the argument from inconsistency than by any the more direct course. The subject of evidence coming in here only by the bye, a few limits though broad ones, are all that can be attested to it here.

1. By English jurisprudence /lawyers/ no interest, no motive of any kind is supposed to have /be capable of exercising/ any influence on man's conduct - or at least any sinister interest, but the love of the matter of wealth - commonly called the love of money, there is a being void of all social affection void of all dissocial affection - rendered with none but self-regarding ones, and those in respect of the object confined to many.

2. In the shape of pecuniary interest the only operative interest there[?] is no magnitude of amount which their rules with all their pretended strictness do not let[?] in[?] /are sufficient to [...?]/. Not many years ago died a duke, whose amount in [...?] came[?] in the public prints[?], estimated at ,150,000. Had the whole of it been in one estate, and that estate depending on the cause, the condition of [...?] to that estate would not have prevented the only son of that duke from being examined as a witness on that cause, either at the instance[?] of his fallow or at the instance of a party on the other side.

But supposing the estate on the son, though liable to be taken from him at any time by the operation of [...?] impression called a receiver, then[?] though instead of the ,180,000 a year the estate was not worth so many [...?] out hand[?], the testimony would not at the instance of the father have been admissible.
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  • 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.
  • Title: [8 July 1806 Scotch Reform /Evidence]
    Description: 8 July 1806

    Scotch Reform /Evidence/

    If on such an occasion title[?] to confidence were worth looking to, (and it will be worth the loss in every man's eyes, the more correct his comprehension is of the ends of justice) the opinion of the English lawyer would be worth most to the body of Scottish suitors, and for the same reason as that of a Scotch lawyer would be to that of English ones. Why? - because though the /a [...?]/ lawyer of any /[...?]/ is a [...?] neighbour to a Scotch or English one, than a Scotch or English suitor or [...?] is to either, yet in the case of this crass interchange of advice neither the sinister interest nor the prejudice which like a weed grows out of interest being quite so strong, the opinion is not likely to be so /quite/ perversely [...?] by it.

    Nor, never have been individuals I mean, nor I hope and trust ever will be in either part of the country altogether wanting, in whose bosom the generous love of praise, or the still more generous affection of philanthropy has obtained /are capable of obtaining //gaining/ occasional triumphs /an occasional ascendant/ over those grosser affections which are apt to be presented and to the exclusion [...?], by the word interest. At this moment my bosom swells with a mixture of pride and affection at the thoughts /recollection/ of some illustrious examples /examples (alas - that [...?] are not common[?] nuisances/ of the /whose/ assistance of which may Your Lordship never be deprived. But when classes and bodies /orders/ of men are considered, and they, continuing their existence, their views, their opinions, through a succession of ages, to expect[?] that their conduct or in consequence their language should ever receive its determination from any other [...?] than that of interest in its narrowest sense, would be to expect that water should move /fly/ upwards, or [...?] downwards.

    A corporation is a sort of a thing which has no conscience. It is among the articles of the English lawyer's creed: he has it from his Lordship[?]. It is one of the few, if there be any other /and conscious of the wisdom //source// of English lawyers is composed/, rules of English law, that has no unannounced exception to make it false: and if lucky[?] an exception to it, were to be found shall it be looked for in the instance of that great though unchartered corporation with which his Lordship was but acquainted, that great though [...?] corporation of which he had been at the head, and which sees all others at its feet?
  • Title: [1 March 1808 Letter VI Omissa]
    Description: 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.