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15 sept 1802
Evidence
Instruction
Consideration
2. Interests in general
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.
Similar Items
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Title: [14 Sept. 1803 Evidence Instruction]Description: 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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Title: [16 Sept 1803 Evidence Instructions]Description: 16 Sept 1803 Evidence Instructions Considerations Interest in general 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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Title: [25 Sept 1803 Evidence Instructions]Description: 25 Sept 1803 Evidence Instructions Considerations 1. Interest in general 9. Against criminative perjury, so powerful, so efficacious is the action of the guardian interests, that in the character of seductive interests, two of the most powerful motives, self-preservation and pecuniary interest viz: love of life are acting in the greatest possible force, the others are acting with more than ordinary force, in different degrees of magnitude, are scarce ever known to produce. Pardon together with pecuniary reward in [...?] from ,10 up to ,1000 are expedients continually resorted to in an English procedure for the obtainment of the evidence in the case of [...?] [...?] [...?] of first rate crimes. obtaining from accomplices. All this while, where self-preservation is out of the question, pecuniary interest, though in a magnitude ever so trifling, and though it be of that comparatively weaker sort which is created by the desire of gain, and not of that stronger sort which is created by the apprehension of loss, is under the same system made to operate as a ground of peremptory exclusion, preventing the testimony from being so much s heard: and this too, let the pecuniary interest at stake be ever so trifling /inconsiderable/ and consequently the damage to the party injured, were perjury of that sort to take place /suffering by the perjury, suffering it to take place/ Pecuniary interest acting upon the witness by itself, is thus made to shut the door against his testimony: pecuniary interest when reinforced by another interest infinitely more powerful by the most powerful of all interests acting on the same side - by an interest which includes all others put together - by this incomparably more powerful interest acting on the same side, no longer shuts the door against, opens it to /but throws it wide open to/ the same testimony. All this while this apparently irresistible invitation to perjury has scarce ever been productive of its natural and to appearances unavoidable effect. The reason is no where to be found in the joint influence of two concurring senses. In one is the particular difficulty of carrying in to effect a plan of perjury in this particular case: a cause which belongs not to the present purpose: the other is the joint of the interest of humanity, seconded and supported by a sort of narrow and spurious sort of honour or regard for a portion of the mass of popular opinion, as above explained. But the force of the action of the principle of humanity in a case where the tendency of it is to cause one man to save another from a mass of suffering - from a mass of punishment, will naturally be, ceteris paribus, directly as the magnitude of that punishment. Hence although the force of the motive acting in a sinister direction viz: self-preservation as also in the case - is by the supposition as the magnitude of that same punishment, yet such is the force of the principle of law - namely, [...?] as above that it almost always gets the better of the sinister interest of the same kind, even when that sinister interest has the force of allied force of pecuniary interest for its support
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