date

[168-172v] 24 November 1803
[168-172v]

24 November 1803

Evidence

Exclusion

True Grounds

Modifications

The practical conclusion seems to be that so long as any unobjectionable evidence is forthcoming and producible (a matter to be ascertained by the oath of the party or his agent) the Judge ought not to admitt /keep excluded for the present/ any objectionable evidence: evidence of a sort the extraction of which would be alluded with vexation, for the sake of protecting /screening[?]/ the party in question against /from/ this collatoral inconvenience.

As to evidence of the suspicious class, for the mere purpose of guarding against deception, it has already been concluded /shown/ that it ought not in any case to be excluded. But by such exclusion was meant definitive exclusion: the reason extends not to the temporary /the momentary/ exclusion severe postponement here proposed. Such postponement /temporary exclusion/ will not always, by the concurrence of the party, be converted /become definitive/ into definitive. It seems probable, /Though in each case it/ it is by no means certain that this unobjectionable unsuspectible or less suspectible evidence is that which [...?] well bring forward in the first instance: and when it has been brought forward, what must frequently happen is that it does not come up altogether to his wishes, and that his endeavours may be to supply this deficiency by the objectionable /as yet unproduced/ evidence notwithstanding the objections that are seen to apply to it. Suppose it to be his own testimony. His anxiety[?] will naturally enough lead him to have his own story told in his own way in the first instance: and if at the instance of the adverse party or judge if the story has first been told by some less suspected evidence, it will still be natural enough for him to wish to add the supplement which he will often concur himself to have in store.

In ordinary cases - in cases of [...?] [...?] or [...?] difficulty there seems no reason [...?] the former [...?], when it happens to be entertained should not be indulged: it is the shortest and suspected course: statement and proof are thus exhibited at the same time: evidence from a less partial quarter would be apt to be less intelligible and impressive[?], for this want of true[?] accompanying explanations, which no person who is not a party is likely to be so well qualified to give. But in cases of importance[?], or when the veracity of the party is particularly open to suspicion, it may be of use that the first impressions should be conveyed by less objectionable evidence.
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  • Title: [[168-176v] 24 November 1804[?]]
    Description: [168-176v]

    24 November 1804[?]

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    4. In the fourth case, it may seem it will be apt to seem at first sight, that a regulation for the exclusion of the objectionable evidence as such, would /must/ though perfectly concurrent, be nugatory and useless. For, suppose evidence enough without it, all further evidence, whether objectionable /objectionable or unobjectionable/ or not, ought to be set aside. On /But/ a second glance the provision will be found not altogether without its use: whatever be the number of witnesses, say three for example, the effect of the regulation /rule/ is that no evidence of the exceptionable case[?] shall enter into the composition of if, so long as any of the unexceptionable case[?] is to be had.

    In thise case where the exclusion has tenacity /[...?] object/ against deception for its object, a rule to this effect would have comparatively little use. Where a party has evidence of two cases[?] /sorts/, the one more open to suspicion /apt to be suspected/, the other less apt to be suspected, that which is least apt to be suspected is that which [...?] will naturally be deferred[?] to bring forward in preference: upon the other, unless his anxiety represents it to him as necessary, he will as it were put[?] an exclusion, of himself.

    It is in the case where the object /final cause/ of the exclusion is protection against vexation, that the use of a regulation to this effect is most conspicuous. The vexation being to some other individual or party, and not to this[?] party to the cause, the party for whose use the benefit is required, he will not as such have any motive for forbearing to produce it: does he expect more from this than from other [...?]? he will call for it in preference. Does he expect as much and no more? Being rather indifferent to him it will be matter of chance which it is he calls forth.

    Here then is a case for the witness to pray for an exemption either in composition with such prayer, or if his own [...?], according to the vexation is to [...?] with and for the Judge to grant it. This reluctant or otherwise objectionable witness or to some other party is produced first. [...?] says the Judge have you no other witness to this fact? Yes we have no others. These others heard, if in his opinion the evidence of the two unobjectionable witnesses is sufficient, or so near to sufficient, that the advantage desirable/discernible[?] to the justice of the cause[?] from the objectionable testimony will not pray[?] for the mischief of the vexation, he sets aside[?] the objectionable evidence.
  • Title: [24 Nov r 1803[?] Evidence]
    Description: 24 Nov r 1803[?]

    Evidence

    3. In the third case, where there is other evidence /other evidence is not altogether wanting/, the deficiency created by the exclusion of the evidence in question is less at[?] source[?] dangerous to the justice of the case, in proportion to the sufficiency or insufficiency of the other evidence. It is only on the supposition that the other unexcluded[?] evidence is /proves/ sufficient, that the exclusion of this evidence can prove fatal to justice /The only want in which the exclusion of the evidence can prove fatal to justice, is that //the want// in which/.

    But this case is /stands/ in this respect distinguished from the first and second cases, that if in the third case there is other /not any unobjectionable/ evidence, the exclusion of the objectionable evidence in question does take place. In the case where the exclusion of this evidence does not take place, danger from the admission of it is diminished /where the evidence is admitted, the admission of it is reduced/ not only by the probability of its own trustworthiness, but by the probability of trustworthiness on the part of the other unobjectionable evidence by which it is accompanied and checked /which accompanies and checks it/. In the case where it is excluded /the exclusion of that evidence does take place/, the exclusion is [...?], fatal to the cause of justice.

    Deplorable indeed though on this occasion is the chance which the public interest has of being served. Lawyers may have the power, but their having the will is hopeless. Some[?] lawyers may have the will; but the power is out of their reach. Propose that the lawyers should be employed in the removal of the abuses made by lawyers, lawyers and more lawyers laugh one and all in your face.
  • Title: [[094-274v] 17 May 1806 *A]
    Description: [094-274v]

    17 May 1806

    *A

    Evidence

    Note?

    Exclusion II. Proper

    Ch. Engl. Law & Vexation

    '. to Judge

    Note 2 (a)

    (a) /Concise idea /Slight sketch/ of the/ Principal diversities respecting the mode of collecting testimony; the shapes in which it is exhibited in practice.

    1. Natural ordinate mode: - the mode in use in Courts of Conscience, except in as far as cramped[?], by the terror of the technical Courts /- science[?] - and before a Justice of the Peace/ and before Arbitrators, Parties present: each testifying for himself, each, in answer to counter-interrogations put by the adversary, testifying against himself: extraneous witnesses examined on both sides by interrogations and counter-interrogations: the Judge also interposing with interrogations as he thinks proper: the Judge who decides upon the evidence the same person by and before whom it has thus been collected: - every thing delivered vivâ voce; but upon occasion capable of being consigned to writing. In case of necessity, assistants to the parties not excluded.

    2. English Jury mode: - The same as above, except that unless in the instance of the defendant where the nature of the cause introduces him in the character of a prisoner, the presence of the parties is not required; their interposition in the character of parties for the purpose of interrogation and observation discontinued in the character of testifying witnesses, for and against themselves, not endured.

    3. English epistolary mode: - examination, or [...?][...?][...?] - to the testimony of the Defendant only, not to that of the Plff or of any extraneous witness, in the English Courts of Equity: To Interrogatories delivered in writing, in an instrument called a Bill, on the behalf of one party, responses delivered in writing, /writing, in an instrument called an Answer,/ by the other. In point of reason and utility, this may be stated as necessary, be the subject of the suit what it may in some cases in the character of an eventual supplement, in some cases in that of a temporary, though never in that of an absolutely definitive, succedaneum, to the natural mode. In its own nature, who unless it be a lawyer, can need to be /the observation/, reminded, that no less applicable to plaintiffs than to Defendants; to extraneous witnesses than to parties?