date

1 March 1808 Letter VI Omissa
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.
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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. Allegat n sans X examin

    In the opinion of the plaintiff? - no such thing. By the plaintiff no such opinion of the veracity /probity/ of the defendant is entertained: by the transaction not the slightest proof of any such opinion is afforded. What is proved is this, and this alone, viz. that in /under/ the circumstances of the individual case, all other evidence, all other chance of justice being wanting /inaccessible/, this chance, how feeble /[...?]/ so ever is preferred to none. A chance of one to a hundred is better than a chance of 0 to the same number.

    Behold the encouragement /the [...?]/ given to paying: success and safety: success which by false testimony it depends upon the defendant to [...?] safety, by the exclusion of the only sanction by which the falsehood could be detected /exposed/.

    In Scottish procedure this point of practice is like so many others copied from Roman Law. The case of the oath thus determined is but one out of three cases in which the premium for paying /so absurdly and mischievously/ is held out. Supplying[?] oath where the oath is called [...?] and that where it is called expurgatory being the two others.

    The case of the English wages of law a practice at present obsolete carried the absurdity still further. Without the consent of the plaintiff, it depended upon the defendant to exonerate himself by his own single allegation, rendered trustworthy in appearance by the solemnity /[...?]/ of an oath, which deprived of all title to [...?] by being exempted from the scrutiny of cross-examination as well as from all fear of prosecution as for perjury.

    Under the name of compurgators[?], a multitude of other persons procured by the party, were to swear at the same time. But all this was mere character evidence: which they swore to [...?] - nothing that had any thing to do with the transaction; nothing but their opinion, real or pretended, in [...?] /[...?] of/ in his trustworthiness: in the exclusion of every one of them were the persuasion really entertained ever so contrary to the persuasion professed, not one of them all was in any way punishable.
  • 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.