date

28 Feb 1803 Evidence Exclusion
28 Feb 1803

Evidence

Exclusion in general

To justify the establishment of the rule, in the character of an efficient cause of truth - to justify the regarding it as an institution the effect of which will be productive of the effect /result/ aimed at by the system of procedure oftener than of the contrary result - observe the supposition that must be made.

It must be supposed in the first place that, in the aggregate of the cases to which the rule of exclusion applies, perjury will be more frequent than veracity: and they in respect to each proportion - with distinguishable fact and circumstance depend[?] to. and this in spite of the [...?] notwithstanding the influence of the docimastic process.

Nor yet is this all: for a further supposition that must be added, is - that the cause on which perjury is not only committed, but committed with success will be more numerous than the cases in which the testimony thus admitted is true, and obtains the credit which by the supposition is due to it /its due/, after the deduction /deducing/ of those in which it fails of obtaining this credit which by the supposition is due to it.

The improbability of this balance[?] on the side of successful perjury will, I am inclined to think /I trust/, appear in stronger and stronger colours, as the enquiry advances.

Suppose /the intention to commit/ perjury to be in these cases as common as but not more common than the intention to adhere to truth - on this supposition the mischievousness of these rules must be admitted beyond a doubt. For in this case, can it be supposed that the influence of the docimastic process in the testimony added to that of the sagacity of /displayed by/ the Judge in weighing it will not be sufficient to use [...?] this scale? To suppose this we must suppose two things - 1. that cross-examination and the other operations in the docimastic process operate not in any degree as a check to false testimony - 2. that truth stands no better chance for being believed than falsehood, and that no attempt at imposition in this way is ever detected by the Judge. But this supposition is in direct contradiction to continual experience.
Similar Items
  • Title: [18 Sept. 1803 Evidence Instruction]
    Description: 18 Sept. 1803

    Evidence

    Instruction

    Considerations

    2. Pecuniary interest

    Time

    Clearance or

    If however it be really supposed, that by any such mechanical process the mind of men can really be cleared of interest, or /and/that the security /probability/ for truth for the absence of incorrectness and mendacity is, after the performance of any such ceremony, in any considerable degree greater than before, the supposition will upon examination be found delusive. Against simple incorrectness it will be found of scarce any use /little or no use/. Against mendacity - against wilful perjury - it will be found of no use at all.

    Mendacity, wilful perjury out of the question, any departure from the line of perfect correctness, of absolute /exact/ truth can have no other cause than bias. /come under no other case than that of bias./ Whatever deviation from that line may later place in his testimony, the witness himself is not sensible of any such deviation: if he is, so far as he is, so far is the testimony mendacious, and himself a perjurer. In this case whatever may have been the state of his mental faculties in relation to the facts in question - his perception -his judgment his memory before the operation, it does not seem natural that by the operation any very determinable or material alteration should be produced.

    But suppose the bias previously existing and in action and suppose the legal process to have cleared away this sinister interest - this cause of aberation from the line of truth - there is /remains/ another which it is not in the nature of it to clear away, and which /of which the action/ will naturally be more powerful than that of the bias itself. This is his regard for his own character - for his own reputation in respect of veracity, his sensibility to the pains of the moral sanction. Before the time and occasion for the performance of this legal ceremony can have taken place, he will almost always have given his account /statement/ of the affair: it is from /by/ this statement alone that in general the party who has an interest in the restoration of the testimony can obtain that information, from which his inducement to put in practice the expedient for the clearing away the objection was denied. But having once given his account of the matter, the witness is concerned in point of reputation to abide by it; What he has to lose by such departure /were he to depart from it in any considerable degree to depart from it/ by such departure is so much of his reputation as is at stake:
  • 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
  • Title: [26 May 1804 Evidence Forthcomingness]
    Description: 26 May 1804

    Evidence

    Forthcomingness

    Ch. Extraction.

    ยง 4. Ordinary.

    Rule 3 d. In the case of suspicion of mendacity, a power ought ot be given to the Judge, to secure the eventual justiciability of the so suspected witness, in respect thereof by such means as promise to be adequate to the purpose: [...?]-justorial security, or even imprisonment not excepted.

    Reasons. Without this precaution, although the coercive[?] means /applications/ employed for the extracion of the evidence be sufficient /should prove adequate to that object/, yet the evidence when extracted would be adequate /in many cases be apt to prove inadequate/ to the ultimate object - the discovery of the truth. In the case in question, the information yielded does not answer the purpose any further than as it is true /conformable to the truth/. But unless such precaution as that here recommended is taken /employed/ for securing the veracity of the evidence, all that is affected by the compulsory - the extraction process is the causing a man to speak - not the causing him to speak true. In this case, whatever may be the suffering, involved in /attached to/ the extractive process, how much soever soever it may be than that which is attached to the shape of punishment to perjury in the case in question, the examiner has it in his power to reduce the amount of it to that of the punishment for perjury: and in effect indeed much below that level: since by the supposition the suffering involved in the extractive process would be certain, being inflictable on the spot, whereas the punishment as for perjury would not be to be inflicted but at the end in consequence of a separate prosecution, subject to all the causes of uncertainty to which the event of such a prosecution is /stands/ exposed.