date

[058-126] May 1805 Evidence
[058-126]

May 1805

Evidence

Ends

Ch. Conflict

This opposition between the two classes of ends is a matter of no light moment: speculation? but that sort of speculation that is not mere speculation : it has had no small influence in practice. Upon no firmer a foundation has that immense fabric of abuse been erected which in the course of this work there will be but too much occasion to delineate.

Without vexation, expense and delay, misdecision - misdecision to the prejudice of the defendant's side - can not be guarded against: therefore vexation, expense and delay are conducive to the ends of justice: pursue the one class of ends and you must pro tanto abandon the other: the more zealously you pursue the one, the wider? your deviation from the other. Vexation, expense and delay constitute the price you pay for justice: avoidance of misdecision being the end that which on the present occasion stands as the representative and substitute of all the ends of justice. The higher the price, the better the commodity: the better the commodity the higher must be the price: and a converse the higher the price, the better will the commodity be.

If this be good reasoning as applied to justice , try it upon bread . A penny is the price I paid for the loaf I have before me. The loaf I am about to breakfast upon: instead of a penny, had I paid twopence for it, the quantity of nourishment contained in it would have been double. Are men convinced by such arguments, or do they only pretend to be so? Are they the offspring of imbecility or of improbity? In whatever mint they originated, such is the reasoning that pass current under the names of Montesquieu and Blackstone.
Similar Items
  • Title: [13 Feb y 1807 Inserendum[?]?]
    Description: 13 Feb y 1807

    Inserendum[?]?

    To III Facienda

    Letter IV

    Montesquieu

    My Lord finding myself engaged /led on by degrees/ to grapple with the technical system /I find myself [...?] as Counsel for the Natural system/, body for body, (and though as it were in a parenthesis.) Having already had occasion to glance at the defendants strong hold, Montesquieu's shallow and dishonest [...?] and seeing it to continue, wretched /flimsy/ as it is all that ever has been and, or / and or ever/ can be said on behalf of that portion of the mass of injustice to which it was designed to give protection, I know not how, painful /unpleasant/ as the object is to me, to pass it by untouched. I take it up the rather in hopes that Mr Hutchinson and his Right Honourable collaborator, seeing it for once at least in its true light, and being thoroughly /heartily/ ashamed of it, may abandon it as untenable, and in their next edition expunge it, from a work, in every other respect /point of view/ so truly /highly/ valuable.

    "Vexation, expense, delay dangers[?] even of justice" (danger of misdecision) "the price each citizen pays /gives/ for his liberty: and this, for the declared purpose of satisfying us that so far from being too much of it, there is often /oftentimes/ not enough!" "formalities do to Justice - vary in [...?] sourent[?] trop peu[?]." (Liberty; the commodity, vexation and so forth the price; the more vexation, the more or the better liberty. If this be good as applied to justice , try it upon bread. The more you give for a thing "The value of a thing , is just as much as it will bring" Good in irony; but in sober sadness! Good in [...?]: but in a book of law, a Guide to legislators! Good when /if it be/ applied to justice, try it upon bread. Here is a loaf for you, hot out of the oven, the price of it is a penny: come a month hence for it, and pay me 2 d for it, you will find it then worth 2 d.

    What [...?] would dare talk as? but what is there that a lawyer is ashamed to write. Suppose a [...?] to talk and deal thus would any man alone[?] ever[?] go to his shop, that could get bread any where else? The supposition is almost too silly to be endurred, even for the moment, and in the way of argument.

    Esp. des Lois Liv. VI Ch.2. Vol 2. p. 120.

    View the thing in point of view there is too much of it: view it in another point of view, there is not enough of it: and so there is too much of it, not enough or exactly the proper quantity just as you please.

    This is Montesquieu all over. Food for debate: tries[?] at some make a figure with: something - thing for every body: support for every thing. This is what recommends Montesquieu. This is what in France is looked for by every body, and by lawyers every where. Truth supported by Reason binds a man in chains, and is a bugbear every where. But, to return to Montesquieu.
  • Title: [12 April 1805 Evidence Source]
    Description: 12 April 1805

    Evidence

    Source

    Ch Procedure Technical

    ''. Conclusion

    Of the natural system, as above described of the natural system considered with reference to the main end of justice, [...?] of decision - to develop the features of detail will be the business of the present work and of the present book. To contrast with it the corresponding features of the technical system in relation to the same points /end/ will be the following[?] business of the present work and of the present book: for us, os far as the question of fact is concerned right decision as far as human frailty permits is the natural fruit of a rational arrangement /set of arrangements/ /system/ in relation to the law of evidence, so on the other hand is mis-decision the natural result of an irrational one.

    To exhibit /delineate/ a view of the natural system in any ulterior point of view - to delineate /represent/ /exhibit/ it in its application to the collateral ends of justice - avoidance of delay, vexation, and expense does not fall within the design either of the present book or of the present work, any further than for the full /compleat/ exhibition of it in the main point of view, the partial exhibition of it on that collateral point of view may occasionally be necessary.

    To exhibit the technical system professedly on this collateral point of view will for the same reason be beside the purpose of the present work as well s the present book: at the same time so intimately blended are the several objects corresponding to the several ends of justice, that an occasional reference to the topics of delay, vexation and expense, and with it a partial delineation /exhibition/ of the way in which these inconveniences have been produced by /grown out of/ the technical system will every now and then be inevitable. To interest the topic of exclusion. To the promotion of misdecision exclusion of evidence, it will be shewn [...?] not in any case be conductive: but with relation to the promotion of a preponderant measure of delay, vexation and expense, it will in many cases be not only conducive, but even elegible upon the whole elegible and even to such a degree as to be unavoidable.
  • Title: [17 April 1805 Evidence Procedure]
    Description: 17 April 1805

    Evidence

    Procedure Technical

    Conclusion

    Of the burthen with which in the shape of delay, the collateral inconvenience vexation and expense the technical system is every where loaded, the enormity is too palpable to be disputed or disembled: disembled, even by those who by every bond of interest and prejudice are urged down to the defence of it. The current plea is that all this collateral inconvenience is necessary, or at least conducive to the attainment of the main object, the avoidance of misdecision: that the submission to the collateral burthen of the lesser inconvenience is the price necessarily paid, and amply compensated by the exemption by which mankind are liberated from the direct and more intolerable mischief /grievance/: and if not directly asserted, an opinion /a position/ is at any rate intimated, and must for the purpose of the defence /argument/ be introduced /accorded/ , that the quantum of advantage thus obtained rises /encreases/ in proportion to the quantum of the price thus paid

    In the course of the present book it will be seen whether the sum of advantage thus supposed to be purchased, and purchased at so high a price, is positive, or equal to, or negative. In the /the future/ /work on/ the rationale of procedure some conception will be endeavoured to be conveyed of the amount of that source /burthen/ of inconvenience by which the mass of inconvenience attached in the shape of delay, vexation and expense to the technical system of procedure exceeds the mass of like nature attached to the natural system of procedure. It will then, nor can it till then, be seen, in any sufficient detail, how enormous the price in which in that shape - men have /are/ everywhere been forced to pay and for nothing, but for much worse. /not for superior but for inferior justice./