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18 Sept 1803
Evidence
Instructions
Considerations
2. Pecuniary interest
A pecuniary interest, to act in the character of a cause of seduction falshood upon the mind of the witness, and thence upon the testimony /his testimony/ he exhibits must be in existence at the very hour on which is he is occupied in the delivery of such his testimony: the good or evil dependent on decision for which his evidence is to furnish or help furnish a ground, must be still in prospect and not in possession, at that time. Whether at the time at which the fact in question presented itself or is supposed to have presented itself to his cognizance the interest was or was not in existence, makes to this purpose no material difference. Although the interest were in existence, and his affections consequently /accordingly/ exposed to the action of it at the time, yet if at the time of giving his testimony that interest is no longer in existence, its action on his affections is at an end, his testimony is no longer exposed to be influenced by it. Although at the time when the fact presented itself to his cognizance the interest were not then in existence, and /nor/ his affection accordingly exposed to the action of it, yet if at the time of giving his testimony the interest were /be/ in existence, and his affections exposed accordingly to the action of it, his testimony is as much or nearly as much exposed to be influenced by it, as if it had already been in existence at the time when the fact presented itself to his cognizance.
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Title: [29 June 1803 Evidence Written]Description: 29 June 1803 Evidence Written ยง.3. Rules After this indication the subject /way/ seems already prepared for the exhibition of /the reception of/ leading[?] rules: the reasons of which will be unfolded in due course. Rule 1. On the single score /ground/ of rectitude of decision - i:e: setting aside the regard due to the prevention of delay vexation and expence[?] - testimony /evidence/ of this kind, being unsanctioned and unscrutinized ought in no case to be admitted, where the witness or supposed witness is forthcoming on a condition /known to be forthcoming at any time,/ to have his testimony sanctioned and scrutinized in whatever is predetermined /has been determined/ to be in his case the proper mode. Reason briefly indicated - 1. Inferior evidence would /not to/ be preferred to superior. 2. Danger from the characteristic fraud. Rule 2. In this case of any class of witnesses, supposing there to be any such class, in whose /of which/ instance it is predetermined that their testimony may, without any danger worth regarding on this ground, be admitted, although it be without the security of afforded against mendacity and incorrectness by the generally established system of sanction and scrutiny, such testimony may accordingly be admitted in the first instance, on the ground of a saving in point of delay, vexation and expence: subject always to sanction and scrutiny, in case of reasonable and special cause of suspicion shown in respect either of mendacity or incorrectness. - On this ground is to be justified, so far as it is to be justified, the exemption from sanctionment and scrutiny, established in the case of pre-appointed official evidence. See the Chapter on that subject. Reason briefly indicated - absence of the ordinary causes o mendacity and incorrectness. Rule 3. Where it is ascertained[?] that the witness or supposed witness can not at any future time be by any possibility be forthcoming for the purpose of sanctionment and scrutiny - (viz: in the case of death or what to this purpose is tantamount to death incurable insanity to a degree rendering him incapable of examination) this species of evidence ought to be admitted: supposing it not to stand excluded by a degree of disadvantage in respect of probable delay, vexation and expence, more than equivalent to the advantage in respect of rectitude of decision, consideration being had of the degree of its relevancy and importance and subject of course to whatever observations it stands exposed to on the ground of /on the score of/ interest and all other grounds of suspicion. [...?] Briefly indicated. The witness being a party to the suit, Fraud not to be presumed: mendacity not so common as veracity: deception by mendacity, if attempted, more likely to fail than to succeed /prevail/ against the causes of suspicion motivated by the instructions. Absence of expectation of profit to be reaped by the characteristic fraud; the falshood not being capable of producing its advantageous consequences /profit/ till the author is no longer in a condition to reap it /the profit/. The witness [...?] [...?] a party. Uncertainty of the time of reaping the profit from the submission[?]: the disgrace and punishment impending all the time,
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Title: [11 Sept 1803 Evidence Ch.]Description: 11 Sept 1803 Evidence Ch. [...?] Instructions Considerations in terminis [?] [...?] Improbabilities C Considerations proper to be borne in mind in judging of the weight of evidence the cause of distrust /suspicion/ - Improbability of the fact deposed to. The improbability of a fact in itself may be considered as a sort of counter-testimony - a sort of circumstantial evidence operating in contradiction to any direct evidence by which the fact in question would otherwise be considered as proved. The improbability of a fact may rise to such a degree as to render it absolutely incredible, incapable of being proved to the satisfaction of him who thinks of it, if not by any evidence, at least by any such evidence, as is actually adduced in proof of it. If the inference drawn from the improbability of the fact, viz: that it is not true be just: i:e: if notwithstanding the evidence /testimony/ by which the existence /truth/ of it is asserted it really was not true the fault must lie either in the inferences deduced from the testimony or in the testimony itself. If the testimony itself was to such a degree positive as to assert the existence of the matter of fact in question in direct term, then the fault can not lie in the inference deduced from the testimony by the Judge but must be in the testimony itself. The testimony must have either incompleat or false or both: though if as above it were to a certain degree positive, as above, there may be no room for charging it with being incompleat, and if the fact so asserted be false, the testimony by which the existence /reality/ of it was asserted must necessarily have been in some circumstance or other false. But as an assertion made by a man may be false without his being conscious of its being so, such falsity is not of itself proof of perjury. /may very well have place without perjury./
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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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