JB_045_467.xml

Title: [21 Sept. 1803 Evidence Note]

Description: 21 Sept. 1803

Evidence

Note

Instructions

Considerations

1. Interests in general

Situations

Party and witness

4. A cause particularly connected with the actual state of English jurisprudence is the want of the means of commanding the testimony of unwilling witnesses, of witnesses whom possession of the required facts is inferred from their situation, at the time in question, in a word from any other source than information furnished directly or indirectly from themselves. The effect of this deficiency will be most readily and clearly perceived, by the observation of those cases to which it does not extend. On the occasion of those preliminary examinations which have place in the case of prosecutions for such crimes as have been raised by the law to the rank of felonies witnesses /evidence/ of all sorts is brought forward as fast as the lights afforded by one witness serve to indicate the further lights that may be expected from another; and the testimony of witnesses where testimony /evidence/ being of the hearsay kind could not be with propriety received into the mass of evidence of which the grounds of the decision are comprised, may yet in the character of indicative evidence serve to bring to light the testimony of immediate witnesses who being ill disposed to that side of the cause which stood in need of their assistance would not have come forward of themselves, nor would have been brought forward at all but for the indication so obtained.

But the greater the number of unwilling witnesses are by the above or any other cause excluded the greater of course must be the number of willing witnesses in proportion to the whole number brought forward and considered.

JB_045_468.xml

Title: [21 Sept. 1803 Evidence Instructions]

Description: 21 Sept. 1803

Evidence

Instructions

Considerations

1. Interest in general

Situations

Opposition

Thus much for the case where the groups of naturally associated interests are supposed to be all in alliance and all clubbing[?] their respective influences in the character of causes of partiality, on the same side. but all families are liable to have their dissentions /become theatres//seats/of dissention: and by every instance of dissention one or more of these naturally associated and conjointly-acting interests may come to be thrown out of the groupe.

The inference from relationship /connection/, natural or civil, permanent or casual, to partiality will be still more /appear still more plainly/ to be in fault when the circle of the same family includes both parties in the cause. The affections and thence the testimony of A witness may in this case be drawn towards the cause /side/ of the plaintiff by one species of interest; towards that of the defendant by another: towards the one by pecuniary interest; towards the other by sympathy and good will: or even to each by an interest of the same species, and in a degree not altogether susceptible /indeterminate/ of liquidation in either case: to each by expectations of pecuniary benefit, to a value on one side or on both altogether unsusceptible of liquidation.

What /A consideration/ in all these cases is manifest even to the most superficial glance, is how inconsiderable and infallibly inefficient a cause of bias and partiality the expectation /assurance/of this or that certain but limited sum expectant upon the want of a cause - upon the determination of it in favour of this or that one of the parties say the plaintiff must frequently be, in comparison of the opposite interest created by the apprehension of forfeiting /losing/ the good will of the other party in the same cause, when upon that good will depends a train of services till then counted upon as certain, to a value some number of times greater than that of the money gained. A point sufficiently manifest in this case is that of presumption of partiality as deduced from interest, even pecuniary interest, were there no other species of interest, were a proper ground not merely fro placing a watchful eye upon the testimony of the witness but for shutting the door against it altogether, it is rather on the side of the defendant than on the side of the plaintiff that testimony so circumstanced should be forbidden to be produced.

JB_045_737.xml

Title: [28 May 1812 Evidence Notes]

Description: 28 May 1812

Evidence

Notes.

Introd

Ch. 20 Auth & Deauth

View[?] of [...?] interrogation - descriptions[?] [...?] more [...?] or more frequent [...?] is but interest which being [...?] every where an appearance [...?] [...?] is one or the opposite side when not the object of [...?] it [...?] not be the subject of interrogation

(5) {A non-party} In the scale of probative force the testimony of a party in the case where by deposing in affirmation[?] of the genuineness of the instrument he would speak against himself i.e. against his own interest is here distinguished from and placed above that of a non-party whose relation to the fact in question in respect of interest is of the same nature and on the same side. But for the /Had it not been/ established practice and established notions this distinction would have been of no use would have had no use would scarcely have been worth bringing into notice holding up to view. On the question of its force or virtue[?] - not upon the source from whence it is derived depends on the occasion of testimony as on any other occasion the effective influence of interest on human agency /conduct/. the influence exerted by interest and the effects produced by it.

By interest to any degree of strength antecedently to the time of deposition its influence the existence of which is neither seen /visible/ nor so much as suspected /open to suspicion/ of the existence of which no external marks are visible may have exercised /been exercising/ the effective influence may have been exercised. From the colouring exhibited by the testimony as it is at the time of delivery as from the brieff it flows /makes it way through/ through the lips and countenance and tone of voice of the deponent interest may be indicated by marks /tokens/ more than any which can be collected either from any mass of punishment of from the situation /any relation/ which the individual can be seen to occupy /stand in/ with reference to the cause. By English Lawyers it is only in one shape /one species/ viz that of pecuniary interest that interest is understood to be capable of exercising upon testimony a corruptive influence /giving to testimony a sinister direction/: and thus[?] of the great variety of shapes in which interest is capable of exercising in a sinister direction a [...?] influence, one only viz that of pecuniary interest is recognized as powerful enough to [...?] for the overcoming of it the application of three [...?] means viz. exclusion which alone are considered by them as adapted to the purpose: and even in this single shape it may be operating in any one or more of a thousand shapes /ways/ in a case in which no suspicion of its existence has been produced by any exterior indications by by which no exterior indications capable of giving birth to suspicion, are afforded.