date

17 Sept. 1803 Evidence Instructions
17 Sept. 1803

Evidence

Instructions

Considerations

2. Interest Pecuniary

The case in which the testimony of a plaintiff in support of his own demand, supposing the testimony wilfully false appears to have the fairest chance, is where upon the face of it, the fact not having come under the cognizance either of the defendant, or of any body else but the plaintiff, the supposed false testimony of the plaintiff has neither the testimony of the defendant nor any other testimony to contradict it. But in this case it is provided that though by the supposition the defendant has it not in his power to give any specific testimony, whereby the force of the Plaintiff's testimony may be counteracted, yet it should be matter of obligation as well as right, on the part of the Defendant, after hearing the Plaintiff's testimony, to declare whether he himself gives credit to it - whether he decidedly believes it, decidedly disbelieves it, or remains in doubt. If he believes it, so may the Judge with still less difficulty: if he is in doubt, no doubt from such a quarter may in the conception /mind/ of the Judge afford some confirmation of the plaintiff's testimony. If the Defendant, decidedly and firmly can take upon him to say that he disbelieves it, and no confirmation comes in aid of it from any other source, personal evidence or real, direct or circumstantial, there seems little likelyhood that the Judge should suffer his decision to be governed by such scanty and suspicious evidence. To testimony thus circumstanced it will oftener happen to be disbelieved when true than to be believed /credited/ when false.
Similar Items
  • Title: [16 Sept 1803 Evidence Instructions]
    Description: 16 Sept 1803

    Evidence

    Instructions

    Considerations

    2. Pecuniary

    Considerations respecting the effect of pecuniary interest upon evidence.

    1. The value at stake being given /the same/, as also sensibility o the individual to a gain or loss to that amount, as deducible from the state of his pecuniary circumstances in other respects, a mans testimony is more exposed to just suspicion in the case where he is a party to the suit, than where he is not a party; as also more where he is plaintiff, than where he is defendant.

    2. For a man who is not a party to the suit - that is has no natural interest of the pecuniary kind in the success of that side in favour of which his testimony tends - can in general gain no advantage can gain no thanks from the party in whose favour if the testimony be wilfully false, and at the same time successful the falshood operates, unless the party is privy to the falshood, and in some sort a [...?] of it. /particular in the guilt./ False evidence /Perjury/ therefore in this case requires two to be concerned in it: whereas, where the party and the witness are the same person /there is no party concerned besides the witness himself/, it requires but one.

    3. In a situation of a defendant, false evidence, in a cause relative to money, is not so dangerous in its tendency viz: in the way of example, on the side of the defendant, as on the side of the plaintiff. The reason is, that in the character of a defendant, as such a man is not in his own power the means of increasing his [...?] /the numbers/ at pleasure: on each occasion whether the suit to which he is a party takes place, depends, directly at least, not upon himself, but upon another person, - the plaintiff. By his false testimony /falshood/ the utmost he can hope to do is to exonerate himself from the particular /single/ obligation which another person, in the character of defendant, so long as he confines himself to that character, it is not in his power to impose any sort of obligation upon anybody by any subsequent attempts /succeeding falshoods/, whatever his success may have been in the first.
  • Title: [26 Jan y 1805 Evidence Securities]
    Description: 26 Jan y 1805

    Evidence

    Securities.

    Ch. Procedure Natural

    ''. Mutual Declarations

    7. The Defendant, on his part will have it in his power to declare in the first instance, whether he admitts the justice of the Plaintiff's claim, or contests it.

    8. If he admitts it, he will declare at or within what time he will engage himself to render the service as admitted to be done: or in case of inability, to confess the inability, and state what hopes he has, if any of being able in any and what degree, term and manner to surmount it; together with the /all/ specific facts which constitute the foundation of those hopes.

    9. If he contests the justice of the Plaintiff's claim, he will then have it in his power to state on what grounds whether he disbelieves the truth of any of the Plaintiff's facts the ground of the evidence indicated as above by the Plaintiff himself, or whether he has moreover any counter evidence to oppose to it in relation to the same facts, or whether he disputes /disbelieves/ the applicability of the Plaintiff's law to the Plaintiff's facts, to the purpose of the inference drawn by the Plaintiff in support of his claim, as above.

    10. So whether believing or disbelieving all or any of the Plaintiff's facts as above, he [...?] upon some distinct fact, not asked by the Plaintiff, as being, in virtue of this or that article of law, of a nature to put an end to the justice of the Plaintiff's claim, although, but for such counter-fact, the justice of it might have been out of dispute.

    In this latter case comes a counter claim, the grounds of which and the sincerity of the Defendant's persuasion in relation to them respectively, will be to be depend to, under the several heads of vexation, above brought to view in relation to the Plaintiff's case.
  • Title: [13 Apr 1803 Object On this]
    Description: 13 Apr 1803

    Object

    On this view of the subject two tasks present /appear/ themselves as comprehending every thing that the law has to provide for in relation to evidence: on the part of the plaintiff to find out and exhibit in support of his demand and in sufficient quantity such evidence as the nature of the case happens to furnish: on the part of the defendant [marginal] to weaken the impression made by the plaintiffs evidence; or, if it be in his power /the case admitts of it/, to encounter and overturn it by a propellant force /weight/ of counter evidence: on the part of the Judge, to weigh, by such scale as he is master of, the force of the evidence on both sides. To find evidence and to weigh the force of it when found such are the phrases /problems/ which present themselves as expressing between them every thing which there can be to do on the subject of evidence - appear /seem in a word/ to contain /express/ every thing that. To do what is to /can/ be done for the purpose of enabling the parties to bring together and exhibit whatever mass of evidence the nature of the case furnishes or can be made to furnish - such it would seem is the service which the legislator has to render to the plaintiff and the defendant in their respective characters and situations. To give /frame/ instructions for the guidance of the judgment in the operation of weighing the force of such evidence as happens to be produced such is the service /assistance/ which presents itself as necessary to be rendered /afforded/ by the legislator to the judge.

    in his support of his demand having for its object, if in the non penal [...?] the right in claims, if in the penal [...?] satisfaction to be made to him at the expense of the defendant, or ulterior [...?] or both together as the case may be.