091-305.xml

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.

091-304.xml

Title: [1 March 1808 Letter VI Omissa]

Description: 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.

091-303.xml

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.