date

14 Sept. 1803 Evidence Instruction
14 Sept. 1803

Evidence

Instruction

Considerations in [...?]

2. Interest in general

2. Cause of distrust /suspicion/. Interest - the evidence /testimony/ of the witness [...?] /liable/ to be drawn aside from the line of truth by the influence of some seducing motive.

There are as many species /sorts/ of interest, as there are sorts of motives: there are as many sorts of motives, as there are distinguishable sorts of pains and pleasures.

Whatever, on each given occasion, be the complexion of a man's conduct, lawful or unlawful, beneficial to society or prejudicial commendable or discommendable, it is always a result of the action of some motive or motives, or of the difference in point of force between two lots of contending motives: an action without a motive is an effect without a cause. Of /Among/ motives there are some the action of which tends in man, all the world over, or at least in every civilised community, though with exceptions in different communities - more or less considerable, keep mens conduct within the path of probity, of which a main branch is the love of truth. There are 1. the motives created by the rewards and punishments administered by the law of the state. 2. The motives depending on good and evil reputation, from whence flowed respectively the spontaneous good and ill offices of mankind. 3. The motives created by the affection of benevolence, whether its object be more or less or more extensive - a mans family his friends at large - his province his country or mankind. 4 the motives created by religion. In consideration of this most usual tendency, though there is not one of them which by means of some error or other has not been productive of actions pernicious to mankind and in particular drawn aside mans' testimony from the love of truth all these together may be comprised under the common appellation of tutelary or guardian motives.
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    Description: 15 sept 1802

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    All motives whatever, not excepting even the motives formed in consideration of their regular and ordinary tendency guardian motives not excepted, are liable to act in the character of seducing motives, on all occasions: and in particular on the occasion /those occasions/ where a man is called upon for his testimony /by the [...?] for the purposes of justice; and thereupon to draw aside the tenor of his testimony from the line of truth.

    There are some motives or interests which are most apt to be productive of this sinister effect, and of the sinister tendency of which on these occasions it behoves the Judge to be more particularly upon his guard: insomuch as the more strongly the situation of a witness exposes him to be acted upon by any one or more of these motives, respectively, in such sort that, by swerving from the line of truth, he might expect to procure to himself the gratification of the appetite or passion corresponding to such seducing /sinister/ interest or motive, the stronger the suspicion and distrust with which his testimony will naturally and not improperly be regarded. not that by any means it follows, that because a man is exposed to temptation, therefore spite of the utmost efforts of the guardian motives, he will on every occasion yield to it: only, /but/ /thus much/ yet and thus much only is the proper practical inference, that nevertheless the stronger the action of the sinister interests on one part, /the part of the witness/ the more vigilant ought to be the scrutiny on the part of the Judge.
  • Title: [16 Sept 1803 Evidence Instructions]
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    Considerations respecting the effects of [...?] lists [...?] best or worst according to the Judge[?] /interest in general/ upon evidence.

    1. There is scarce an occasion on which - scarce a species of cause /suit/ in which it may not happen to a man to be acted upon at the same time by any number of motives, as above exhibited at any number of different sorts of interest, besides these /the guardian motive/ the force of which is generally exerted /acts in general/ on the side of truth: and of those sinister interests may be acting either all of them on the same side, or some on one side some on another.

    2. The efficiency of a motive depends not upon the species to which it belongs, but on the strength with which it acts /happens to act/ in each individual instance. There is scarce a species of motive which is not capable of acting with any degree of force from the lowest to the highest, or not much short of the highest.

    3. A man's own testimony given in his own cause, is of all evidence the most /and most properly/ exposed to suspicion, where the tendency of it is in favour of that cause: it is of all evidence the least exposed to suspicion, when the tendency of it is in disfavour of that same cause.

    4. But even in this case it can not be relied upon with perfect safety. In a penal cause /case/ a man may /be led/ by his testimony subject himself to conviction and punishment as for certain offence, in the hope of avoiding some greater evil, for example prosecution, and thence conviction and punishment as for a certain offence, in the hope of avoiding some greater evil, for example prosecution, and thence conviction and punishment for some more severely punishable offence. In a non-penal case, a man may for the advantage of others, with or without collusion, institute a cause for the very purpose of betraying it.

    5. Setting aside the indirect counter evidence that may be opposed to a man's testimony by the improbability of the fact deposed /he deposes/ to, it is more easy to disbelieve him, where on the supposition of falsity /incorrectness/ on the part of his evidence such falsity can not but have been accompanied with that criminal consciousness, which converts it into mendacity, than when it may be accounted for in the supposition of simple incorrectness: for /because/ the first case can not have happened, but the mind of the witness must have been subjected to the action of some sinister interest or interests, - acting in if, sufficient force to overcome the united resistance of the whole phalanx of guardian interests.
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