date

20 March 1808 Letter V §.6
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.
Similar Items
  • 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.
  • Title: [[094-298v] 21 July 1803 Evidence]
    Description: [094-298v]

    21 July 1803

    Evidence

    Pre-appointed

    III Judge[?]

    The intervention of the pre-appointed attesting witnesses mentioned[?] as such upon the face of the deed, ought it to be considered as putting an exclusion upon the testimony of all or any other witnesses? - No; most certainly. To put such an exclusion would be to render the validity of the contract compleatly dependant upon the pleasure of the individuals whose testimony had been thus employed. They might rescind it by perjury: without any such guilt or danger, they might rescind it by simply keeping out of the way.

    Supporting two attesting witnesses, both alive, and both forthcoming /amenable/, is it necessary that both of them should be warranted. Not according to English law which [...?] chief in general with one[?] witness. Distance may render the examination of them both, if performed viva voci[?] a matter of unnecessary expence. But the objection will have been removed, if one of the parties declares himself upon oath not satisfied with the deposition[?] of one alone of the two witnesses, especially if he offers to defray the expence in the first instance.
  • Title: [11 Feb y 1805 Evidence Securities]
    Description: 11 Feb y 1805

    Evidence

    Securities

    Ch. Engl. Summary

    Concluding Observat.

    That cases are not wanting, in which, for the variation /diversity/ in the mode of receiving and extracting evidence, that is for the substitution of the less trustworthy mode to the most trustworthy mode, there exists a reason - but too good a reason - but too cogent a necessity, is not to be devised /has already been acknowledged/. In England then, as well s in every other country, there exists a justifying cause of diversity, in relation to the force of these spheres of procedure /mode of receiving and extracting evidence/. Be it so: but if from this position /principle/ it were t be inferred /supposed/ that any the least shadow of a reason or apology /or pretence or excuse/ for the diversity by which /in the manner that has been/ the English system is confounded and deformed, the error would be great indeed. On the part of the most trustworthy mode, physical impracticability, preponderant inconvenience in respect of delay vexation and expence - these are the only causes which, in whatsoever country has the faction can operate so as to justify /serve/ /afford a sufficient cause for/ the sacrifice of the most trustworthy mode. But in English procedure in the cases where the most trustworthy mode is abandoned, physical impracticability has never been in question: and in respect preponderant inconvenience in point of delay, vexation and expence, this collateral mass of inconvenience, so far from being diminished, will in every instance be found to be augmented - in a most enormous and palpable degree augmented, by the sacrifice /this shameless sacrifice/. In respect of expence at any rate it may be said, with every [...?] part of truth that, the departures, wide and numerous as they are form the paths that lead to truth and justice have had for their final and but too efficient cause not the diminution but the aggravation of this cruel inconvenience.