059-266.xml

Title: [6 July 1804 Procedure & Evidence]

Description: 6 July 1804

Procedure & Evidence

Evils causes

4th order

'.2 Fallaciousness

2. Evil the cause of which is sought - -- 2 evil of the 3rd order

Fallaciousness in this or that article /lot/ of evidence.

I. Personal evidence and written evidence

1. Natural causes

1. Influence of the several causes of incorrectness in testimony: which see.

2. Influence of the several causes of mendacity and bias in testimony: which see.

3. Insufficiency of the several causes of veracity: which see.

II. Factitious causes negative.

1. Omission on the part of the legislator to require pre-appointed and thence trustworthy evidence in cases that admitt of such pre-appointment: i.e. of a ----- of witnesses /evidence/ to ---- for the proof of a fact before it has taken place. See

2. Omission on the part of the legislator to make the requisite arrangements for the preserving by registration such evidence as requires to be preserved.

3. Omission on the part of the legislator to ---- for all cases alike (particular cases /specified cases/ excepted, where the evil of vexation and expence would preponderate) that mode of extracting /extraction/ the evidence which is best calculated for rendering it trustworthy: such alone excepted in which the advantage in point of trustworthiness would not pay for the evil in the shape of delay, vexation & expence.

III. Factitious causes positive

3. Positive encouragement given to mendacity by the legislator and under his authority by the judge, in various ways.

Examples

1. Facts known to be false alleged by the judge, under the name of fictions for the grounds and reasons of his decision.

2. Parties /A party/ compelled to exhibit facts notoriously false (also under the name of fiction) on pain of losing his cause.

3. A party allowed to advantage himself in the course of procedure in various ways, by false allegations, without being punished or prosecuted[?] in any way for the mendacity.  Re---- onwards.

JB_082_090.xml

Title: [20 March 1808 Letter V §.6]

Description: 20 March 1808

Letter V

§.6. Reasons

Ends of Justice

Fallaciousness Causes

Factitious Causes, Negative.

1. Want of an all comprehensive system of arrangements for the collection and perpetuation of pre-appointed evidence as above. {See Non-forthcomingness of the Evidence}.

N.B. To the more effectual prevention of deception, absolute exclusion of all evidence but the pre-appointed evidence in question is not necessary nor conducive in general: since, there is no sort of evidence whatsoever, unpre-appointed or pre-appointed, but what by force, fraud or accident is liable to have been rendered incorrect, obscure, ambiguous or incompleat. The sincerities, or indications of trustworthiness, by which preappointed evidence ought to be and may in general be corroborated, will give it a proportionable advantage against any ordinary evidence that may come into competition with it.

2. Omission to apply to all cases alike, (where practicable without preponderant inconvenience in the shape of a vexation, expense and delay, in addition to the above natural securities for correctness and compleatness, the political, viz. the penalties attached to the violation of a testimonial oath or solemn affirmation: including also those securities which are constituted by the adoption of the mode of extraction and if need be registration, but adapted to the exigence of the case: statement in the first instance without, but always eventually subject to examination: examination oral or epistolary, or both, together or successively.

3. Omission to put an exclusion upon evidence extracted by a less trustworthy mode of delivery or extraction (as in case of pleadings without oath), when, without preponderant inconvenience as above, it may be obtained in a more trustworthy shape from the same source: as in case of pleadings upon oath.

4. Omission on the part of the Legislator to furnish to the Judge an all-comprehensive system of Instructions for his guidance in respect of the appertaining the probative form of evidence.

JB_082_091.xml

Title: [20 March 1808 Letter V §.6]

Description: 20 March 1808

Letter V

§.6. Reasons

Ends of Justice

Fallaciousness Causes

Factitious Causes, Positive.

5. Laws or usages affording positive invitation and encouragement to mendacity, by allowing to the party in the wrong a sure and safe expedient for deriving from falshood an advantage, sometimes temporary, sometimes definitive; viz. for want of punishment for false allegations, whether temerarious only or mendacious: as in the case of pleadings not upon oath.

6. Laws or usages encreasing the chance of false and fallacious evidence on each individual occasion by placing and keeping the public morals in a general and habitual state of corruption in respect of the disregard to truth: plunging in habits of mendacity not private persons only but public functionaries invested with the most important trusts: as for example compelling parties to other falshoods, on pain of loss of cause: as in pleadings in general, and in particular in the sort of instrument called a Bill in Equity.

7. In the case of the sets of occasional and unlearned Judges called Jurymen, acting under the direction of a learned Judge, Laws or usages forcing them, on pain of giving impunity to all delinquents, to express by the word Guilty an indiscriminate pursuance of the truth of a mass of allegations in which under the name of an indictment or information or a declaration a quantity of notorious falshood is constantly intermixt.

8. In the same case habituating them to the solemn utterances of specific falshoods for example in relation to the value of goods taken in the way of theft, and this for the express purpose of putting a contempt upon the ordinances of the legislator by exempting criminals from a degree of punishment to which it is his declared intention they should be consigned: and this under the eyes and with the frequently declared approbation of the learned and official guardians of the public morals.