date

1 March 1808 Letter VI Omissa
1 March 1808

Letter VI

Omissa & Facienda

II. No Allegat n sans x examination

No English lawyer - no, nor yet any Scotch lawyer - none at least who had any acquaintance with Jury trial as practiced on the Circuits[?] can be insensible to the importance and utility of cross-examination in the character of a security for veracity and a test of truth.

Being to this degree good in some /so many/ cases, and those among the most important, why refuse /deny/ to /with hold from/ justice the benefit of it in any case? If thus there be a case in which the utility of it fails of being exemplified, the burthen of proof rests with those whom its utility in that case is untested[?].

In principle the case proper to be excepted have just been indicated: they are the case in which the inconvenience in the shape of delay vexation and expence is so great as to be preponderant over the evil in the shape of misdecision, actual or probable.

But these are not the cases in which the benefit of the security fro truth and rectitude of decision is with-holden: the with-holding of it is not determined /regulated/ by that principle, or by any principle having /having any sort of/ reference to the ends of justice.

The exceptions extensive as is their range in English law, to a prodigious degree more so in Scotch law, are determined by the /those/ allied powers by whose united influence the decisions of law /procedure/ are grounded, viz. Fraud and Accident: Fraud in the shape of Lawyercraft, Accident where Lawyercraft has found /seen/ no special [...?] to interpoze.
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  • Title: [29 Feb y 1808 Letter VI Omissa]
    Description: 29 Feb y 1808

    Letter VI

    Omissa & Facienda

    No allegat Sans Oath

    Under no oath[?] [...?...?] but English practice if no[?] examination of parties.

    2. The other mischief consists in the corruption of morals: deprivation of moral character both in this part /instance/ of the client - that is of the number of the community in general in the character of suitors - and on the part of the man of law. Both are thus rendered liars: the one by accident , the other by profession: the one by misfortune, the other by choice.

    There is no enormity[?] to which men are not recounted by practice.

    Never was wickedness more compleatly destitute of all excuses on the ground of necessity. The licence is not extended to extraneous witnesses. But there is no reason why a man should be permitted to lie[?] in the character of a party [...?...?] of a witness.

    The mischief would be much less serious than it is, if the habitual practice of this vice were confined to professional lawyers, the humbug representations of the parties: that is if in every instance the man who is once a professional lawyer were always a professional lawyer, and nothing else.

    But the same man who in the certain part of his life is a professional lawyer, becomes in the latter part of it an official lawyer, and in that character is raised to the highest and most important trusts[?]: and going through the course of vice is ever rendered an indispensable qualification, a condition [...?] quâ [...?], to his elevation to any of those exalted stations: not less rational would it be or favourable to virtue[?], if a law were made rendering it impossible for a female to enter upon the matrimonial state, without having previously passed here[?] in two years of her life in a brothel.
  • Title: [29[?] Feb y 1808 Scotch Reform]
    Description: 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. │ │)
  • 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.