JB_806_478.xml

Title: [20 Jan y 1814 Jug. True Ch]

Description: 20 Jan y 1814

Jug. True

Ch.3. Natural Evidence

5

(3)

Admitting this though it be rather too much to admitt that by the consideration of this exposure to temptation a sufficient reason was afforded for trusting to the unofficial in preference to the official witnesses, still this was no sufficient reason, nor any reason at all, for putting a compleat exclusion upon the official class of witnesses: a compleat exclusion for acting as if the weight of both masses of testimony conjoined would have been less than that of one of them had it stood singly.

But even granting how unreasonably soever that in respect of the class of witnesses the testimony of the one set chosen is better than would have been the testimony of that same class of witnesses added to that of the other, still the objection from the absence of the abovementioned securities for correctness and compleatness remains unanswered and conclusive are in no instance either time or place individualized in as far as instances the list of principal witnesses determinate and compleat and at the same time the narrative in which they are spoken of as such, known to have been made public in their lifetime: much less are they, in the tenor of it, spoken of in the character of attesting, and mutually corroborating witnesses.

 Add mention of the case taken in modern times to give to every narrative as far as possible the benefit of these securities.

048-270.xml

Title: [29 June 1803 Evidence Written]

Description: 29 June 1803

Evidence

Written

§.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,

048-276.xml

Title: [5 July 1803 Evidence Written]

Description: 5 July 1803

Evidence

Written

§.3 Rules

Under the English law, dreadful indeed, (if this species of evidence were not received,) would be the condition of the trader, if this species of evidence were not received. Under the same law the masters own evidence would not be received: (since, according to the general rule no man's evidence is received in his own behalf, and of /among/ the numerous list of exceptions this case is not one.) It is not received in the ordinary viva voce form subject to examination it is not received in the form of written extrajudicial evidence - the form it wears when the entries are made under the master's own hand in the master's own books. If /thus stood/ the law stood thus, a man's title to the whole mass of [...?] moneys owed /owing/ to him would depend upon the lives of the servants respectively privy to the respective transactions between him and his debtors: were the law universally known to stand thus, all dishonest debtors would look upon the death of the bookkeeper /journeyman/ by whom the goods had been delivered to them in the shop or the porter by whom they had been delivered out of the Shop, as tantamount to a receit[?] for their respective debts. All credit would be at an end: trade could not /scarcely/ be carried on otherwise than for ready money: the value of the risk a man /trader/ run by the death of his servant /journeyman/ would be greater than the present average amount say the 15 per cent per annum of the profit of trade. The rate of profit upon all goods would require to be increased accordingly. But the corruption of morals by the irresistible /premium/ encouragement given to dishonesty - an encouragement the receipt of which would become frequent and notorious /abundantly and notoriously exemplified would be extreme: is/ said to have sometimes/ said to have happened in some instances by a power /an occult/ in the political body parallell to what is called vis[?] medicatri[?] natura[?] of the physical body arise[?] at the command of necessity an extraordinary degree of vigour on the popular or moral sanction should supply the fill up the gap occasioned by the deposition[?] of the force of the political sanction. But before the mischief had come to any such pass, legislative authority could not but interfere /step in/, and either simply rescind the common law rule, or obviate /moderate/ the mischief of it by the institution of some species /modification/ of pre-appointed evidence