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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: [4 April 1804 Evidence Forthcomingness]Description: 4 April 1804 Evidence Forthcomingness Ch. 6 Appearance §. 3 Cases for extraordinary §. 3. Cases for extraordinary securities. The /Of the/ cases in which it may happen to a witness to be prompted /incited/ to disobedience, acted upon by a motive too strong to be overcome by a security of the ordinary kind as above described the following are those that will be found most frequently [...?] /exemplified/ in practice. 1. Complicity. This takes place only in causes of a penal nature: and applies only to such witnessess the force whose testimony would act in favour of the plaintiff - would bear against the cause of the defendant. In this case, though, for want of knowledge or suspicion of the part taken by him, the proposed witness may not have been as yet placed in the predicament of a defendant, yet, if he be conscious in his own mind of having been a sharer in the delinquency, an apprehension if being proceeded against on that score, whatever motives would urge him to evasion in one case, will alike urge him to it in the other. 2. Subornation by a party. this cause of evasion is /This practice is alike/ applicable to non penal as to penal cases - subornation is a term not as yet commonly employed in any other case than that in which the offence to the commission of which a man is incited by his seducer consists in an act of an affirmative description - the exhibition of false testimony /evidence/. But an effect of the same nature, exerting the same influence /giving the same [...?]/ in the termination /event/ of the cause may be produced by an act of a negative description - the avoiding to give any evidence at all - and in that respect avoiding to give true evidence. In this way the effect of mendacity may be produced without any of the infamy attached to that species of improbity, and unless sufficient provision be made to the contrary, without any of the danger. The danger so far as corporal suffering is concerned will at any rate have been avoided in case of expatriation. As to the vexation attendant on such a proceeding, it may be very great, or it may amount absolutely to nothing, according to circumstances. In some circumstances, no quantity of the matter of corruption will enable an impulse adequate to the production of this effect: in other circumstances, especially where on other accounts a man peculates[?] whether to stay or go, the weight of a very small sum may be sufficient to turn the scale.
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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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Title: [26 March 1804 Evidence Forthcomingness]Description: 26 March 1804 Evidence Forthcomingness Ch. Negative[?] Ch. Of the means of extracting testimony /personal evidence/ from a witness Ch. Of the means for causing a witness to depose. That a witness, present in court and in a condition/ capable of yielding evidence should yield evidence accordingly, is a desirable result, desirable for the same reason and in the same degree as justice is desirable. It avails little that he has been brought thither, if when he is there, he will not speak. If being /able to speak, and being/ called upon to speak, he forbears to speak, such forbearance is an offence against justice - an offence the motive to which - the delinquency - instigating motives, must in the case of this species of delinquency as of every other be encountered /combatted/ by a counterforce sufficient to subdue it - the force of some delinquency - restraining motive or torture applied in the way of punishment - or the fate of the cause that is to say of every cause - the whole power of justice and of the laws are laid at the feet of every individual of whose service in the character of a deposing witness, justice happens at any time to stand in need.
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