JB/047/023/001

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7 Mar. 1806
EVID. B. Exclusion Improper Vexation Ch. 1. Self-prejudicing

§. 1

1.
Second ground of exclusion
– avoidance of vexation.
First species of evidence
excluded on this ground –
Self-prejudicing. In this
is included –
1. Self prejudicing simply
2. Self inculpative
3. Self criminative. p.1.

1.
The ground of exclusion
is referred to this head,
that being in point of
reason the only ground
discoverable for it. p.1.

3.
Self accusing evidence,
the term frequently employed
is improper. p.2.

2.
Under the head of cases
in which exclusion may
be proper, vexation is
mentioned in that view:
but the mischief to be apprehended
from vexation
is then understood to be
preponderant over the mischief
to be apprehended from
the impunity consequent on
the loss of the evidence in
question. p.2.

4.
But from the delivery of
the sort of evidence here in
question such preponderance
never can take place in any
single instance: the vexation
produced by this cause being
a mere evanescent quality
quantity: viz. that which
depends on the difference between
conviction obtained by the party's
own evidence, & do. obtained
by any other evidence. p.2.

5.
On this head ulterior
argument is mere shadow
fighting. p.3.

6.
The prejudice to be combated
is peculiar to English
law: the utility of the
argument therefore is but
total. p.3.

7.
– also temporary: the
prejudice can no more last
than the prejudice in favor
of ordeal & judicial duelling
lasted.
Hereafter an argumt agt
the exclusion of self criminating
evidence will be as useless as
agt judicial astrology or
. p.3.

8. irchheneft On the ground of security
agt deception a man is not
to be suffered to give evidence
in his own cause if he be
willing: on the ground of
security against vexation he
is not to be called upon to
give evidence in his own cause
in the supposition of his being
unwilling. The prejudice is
carried so far that when he
is willing and actually giving
evidence which it is apprehended
may operate agt him, his
mouth is stopped and the
Judge makes a merit of
stopping it. p.4.

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1.
When the punishment extends
not beyond the loss of property
and liberty the distinction
between criminal and non-criminal
– penal & non-penal
– consequently between
self criminating and simply
self-prejudicing is
purely verbal.
☞ Quere whether to marginal
content this more
particular put the details
into a Note. p.5.

2.
If in compelling
self burthening evidence
Equity be right, Common
law in refusing to compel
it must be wrong. p.9.

3.
Between penal & civil the
distinction (to the extent of
the burthen imposable by
civil) is but verbal. p.9.

§. 2.

§. 2. 1.
If instead of the suit
in hand the effect of the
answer called for be to
subject the party to an
obligation penal or not
penal by means of a
distinct suit the reason
will be the same. p.1.

2.
So if the deponent instead
of a party be a witness.
p.2.

3.
That a man shod be
summoned for this very
purpose, is not a natural
case, but shod it happen,
there is no harm done:
No falshood allowed: no deceit:
for if the question be not
pertinent to the suit in hand,
for that reason it will
not be suffered. p.3.

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§. 3.

1.
Mischief from this Exclusion,
as deduced from the tables.
1. Encrease of Vexation –
Avoidance of ideal vexation
is the pretence for the exclusion;
production of real in
abundance, the result.
p.1.

2.
2. In many cases degradation
of the evidence from regular
to makeshift from the
same source. p.2.

3.
3. In other instances total
deposition of the evidence
from that source. p.2.

4.
4. Substitution of evidence of from
the least trustworthy kind source
(bought evidence of partners
in guilt) & that rendered
the more untrustworthy
by the legislator, viz. by
the purchase, to evidence
of the most trustworthy
kind viz. – confessional.
p.3.

5.
5. Hence to punish one malefactor
another must be
cherished. p.3.

6.
6. Thence it is that in England
Depredators carry on their
business in bodies corporate
having perpetual succession,
an abuse scarce known
to other Countries. p.3.

7.
7. Out of this abuse has
grown the system of police
which, under the established
system of remuneration spews
petty and less profitable
depredators, till they
ripen into more mischievous
& profitable ones. p.3.

8.
8. In the non-penal branch
the exclusion operates as
a lesson of vice delivered
fro the seat of justice.
A man is encouraged
in the denial actual or virtual
of his own hand-writing.
p.4.

8(a).
If advice to the same
effect were given by his
professed teacher of morality,
a school master, a divine,
or moral essay writer,
it wd deservedly be regarded
with abhorrence. p.5.

9.
9. Then ill grounded distinctions
add to the indistinctness
and uncognoscibility
of the law.
p.5.

Identifier: | JB/047/023/001"JB/" can not be assigned to a declared number type with value 47.
Date_1	1806-03-07	Marginal Summary Numbering	1-8, 1-3, 1-2, 1-8, 8a, 9
Box	047	Main Headings	evidence
Folio number	023	Info in main headings field	[[info_in_main_headings_field::evid. b. [ ] exclusion improper ch. 1 self-prejudicing]]
Image	001	Titles	modifications
Category	marginal summary sheet	Number of Pages	1
Recto/Verso	recto	Page Numbering	d1
Penner	john herbert koe	Watermarks
Marginals		Paper Producer
Corrections	jeremy bentham	Paper Produced in Year
Notes public		ID Number	14891
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