date

26 Jan y 1805 Evidence Securities
26 Jan y 1805

Evidence

Securities

Ch. Procedure Natural

''. Mutual Declarations

''. Natural System. Procedure on first meeting. Mutual heads of declaration /Explanations/

So distinct in all its siniorities[?], the course taken, under the influence of this sinister interest by the system of procedure belongs not to the present work. What was here necessary, is here sufficient - the marking /presenting/ out that sinister interest as the original and efficient as /or/ well as final cause of so many phenomena which otherwise would be inexplicable: in particular of the [...?] of arrangements by which the efficacy of the natural system of procedure in respect of the security afforded by it for trust /the trustworthiness of evidence /against non decision or faction of justice on the ground of evidence/ has been weakened to a degree which will be but too apparent.

If /When/, at the commencement of every cause which admitts of such scrutiny[?], that is to say in nine causes out of ten, or nineteen out of twenty, the parties were to meet one another face to face, in the presence of the Judge, the facility which such meeting affords for the [...?] of both [...?] in the character of self serving witnesses, and the mutual cross examination of both in the same character /character of self-[...?] witnesses/ would constitute but a part of the advantage sooner done to justice. To each of them, whether he has happened to be in any such situation as will have enabled him to depose /act/ in the character of a witness, /delivery[?] direct and position testimony/ in relation to any of the facts in dispute, is in most sorts of causes a matter of accident. What is certain is as follows -

1. The Plaintiff will have it in his power to declare /make known/ in the face /presence/ of the Defendant as well as the Judge - what the act is, the performance of which is the [...?] he demands at the defendants hands - what the facts are on which he grounds such his demand, and what the article of law is which in his conception warrants it.

2. What the grounds are on which his persuasion of the truth of such several facts are founded: - his non perception[?] past or present - his own inferences from his own perceptions - the direct testimony of others, expression of the principles of those others - articles of real evidence, expressive of the testimony of things, articles of written evidence, expression of the evidence of persons through the medium of that of things - and so forth
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  • Title: [26 Jan y 1805 Evidence Securities]
    Description: 26 Jan y 1805

    Evidence

    Securities

    Ch. Procedure Natural

    '' Mutual Declarations

    3. In regard to the above several sources of evidence personal, real and written he will have it in his power to declare what he knows or believes of the places in which they respectively exist - and where any difficulty presents itself as to the ensuring them to be forthcoming for the purposes of justice, what he knows or believes concerning the nature of it and the means that offer themselves for the removal of it.

    4. In regard to all these several facts of the truth of which he is persuaded by evidence other than that of his own personal presumptions, he will have it in his power to declare on in the face of the adversary as well as the Judge, the existence of such persuasion

    5. In regard to the applicability /appropriate[ness?]/ of the law relied upon by him as above, he will have it in his power to declare the like persuasion.

    6. Each declaration will according to the rules above laid down, be to be made, under the same security for its purity as well from [...?] as from mendacity, as in the case of those /such/ facts,if any, in respect of which his persuasion has his own personal presumption - the evidence of his own senses for the ground of it.
  • Title: [23 July 1804 Procedure & Evidence]
    Description: 23 July 1804

    Procedure & Evidence

    6 (3)

    Note?

    Enquiry Mode

    Ch. Advantages

    In the different systems of technical procedure it is curious enough to observe, by what industry, or by what good fortune, how the influence of this natural preevention of malâ fide causes has been eluded.

    In the Romano-Gallic system, in non-penal cases the faculty of extracting evidence from the testimony of the adverse party is not refused, as in the English system it was and continues to be in the originally instituted Courts called the Common Law Courts. It is even allowed to be extracted by /in the way of/ vivâ voce examination, and pro tanto so far in the best mode: not by strings of questions following one another in an instrument, followed /replied to/ on the other side by strings of questions following one another in another instrument, as in the English Equity Courts. But the person by whom the extraction is performed, is the Judge: the adverse party far from being allowed to put questions, is not so much as permitted to be present. The fatal consequences of a mutual explanation of the parties in the presence of the Judge, each with powers for extracting truth from the unwilling lips of the other, are thus happily, if not /have thus happily at least, and probably enough/ ingeniously avoided.

    In the English system, the appearance of the parties in the face of each other and the Judge is compleatly avoided and prevented in all cases except those in which it is not possible to prvent it. These are a [...?] class of criminal causes /+In causes non-penal premature[?] explanation[?] is avoided. in which the defendant appearing unavoidably in the character of a prisoner, and the Courts open [...?] exclusion of the adverse party the prosecution is impossible: especially of as in most cases /[...?]/ and of a penal nature he is admitted in the character of a witness. But in this case besides that explanation would come too late, by far the greater part of the delay, expence and vexation of the cause being already incurred, the shame of explanation is avoided in no inconsiderable degree by another arrangement: no question which the defendant would not wish to answer being sufficient to be put to him in any [...?] case for fear his guilt should come to light. It seems implicitly understood by /in/ the [...?], that no unnecessary discouragement should be thrown in the way of customers.
  • Title: [18 June 1805 Evidence Introd]
    Description: 18 June 1805

    Evidence

    Introd

    Ch. Procedure Technical

    ''.7. Writing abuse

    In /To/ /Without/ the abuse of writing we have /may be seen/ the means of bringing about three /essential/ /the suitor could never have been burthened with that prodigious load of expence vexation and delay of which the exhibition of/ instruments of mutual altercation succeeding one another at intervals more or less distinct, in the particular /immediate/ efficient cause. Where an allegation /a mass of allegations/ is committed to writing, and each party is under an obligation or at liberty to answer the mass of allegations exhibited by the other, an interval of time between the exhibition of one such instrument, and the exhibition of another such instrument can not be refused. It could not, even were hired assistants out of the question: much more where the necessity of employing assistants of that description, especially if of different classes /ranks/, one believed another, has been contrived to be created. Under the system, of which vivâ voce examination as well of parties in the presence of each other as of witnesses (extraneous witnesses wherever present) forms an essential /a distinctive/ feature, all such altercations would naturally, and, saving accidental ignorance or oversights, necessarily, come out at once; come out at the first meeting.

    Before this abuse of writing, whatever allegations, relevant or irrelevant, true or false, came out in the course of the cause, must have been exhibited, by the parties, or, in the accidental case of inability to attend, by their gratuitous proxies: for the assistance /interference/ /agency/ of professional and hired agents /assistants/, not even in the character of assistants, much less in the character of proxies, could there have been any real need felt, or plausible appearance of necessity created. In the presence of the party, even where he is unfortunate enough to be obliged to purchase the treacherous service of a [...?] assistant, the art of making business can never be carried to any extent, approaching to that to which it is carried of course, when that check to professional treachery is removed.