date

26 Jan 1805 Evidence Securities
26 Jan 1805

Evidence

Securities

Ch. Procedure Natural

''. Beneficial Consequences

''. Beneficial consequences of these explanations.

If these explanations were regularly brought forward at the opening /outset/ of each cause, the day which saw /gave birth/ the commencement of the cause would in nine instances out of ten, a certain number for a purposely mendacious one, witness the conclusion of it: the expences and profit of professional assistance would in that case be on each side either superceded altogether, or confined within the compass of a single attendance so [...?], with or without a previous one in private.

When the cause, not being at that degree of simplicity was of a nature to require subsequent examinations vivâ-voce or in the correspondentual[?] way of correspondence - subsequent productions /exhibitions/ of real or written evidence, and so forth at subsequent and separate times, at any rate the quantity of delay /[...?]/, vexation and expence might be aimed at at least by conjecture, and provision made accordingly: the succeeding or at least the next succeeding times of attendance might be fixed - not as at present by blind and unbending rules, but by a measure taken from the term /at the disposal/ of the Judge, and the mutual ability in [...?] of the parties. Delay would thus take place, but only because it was unavoidable, and in proportion[?] as it was unavoidable: for the same cause, and in the same proportion, vexation and expences; and of expence that which assumed /what/ in the shape of profit to the man of law in all his varieties /various shapes/.
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  • Title: [2 April 1805 Evidence Securities]
    Description: 2 April 1805

    Evidence

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    Procedure Technical

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    But costs of suit: especially is being paid by the party in the wrong, they include those of the adversary /his injured/ whom he has injured: - costs of suit - the obligation of paying them - does not this burthen operate with the effect of punishment: and does /is/ not this burthen increase with /augmented by/ any mendacious allegation with which a mala fide suitor torments his adversary?

    I answer - by no means. In the first place this burthen - this punishment is not attached to the offence with any uniformity and steadiness.

    In the next place, if it were ever so conformity, it would not yet have the effect of depriving mendacity of the included and necessary licence. Of every such allegation, whatever in respect of costs may be the ultimate effect, the unavoidable effect is to give rise /existence/ to /for/ the present, to the projected /preconstructed/ /predetermined/ /intended/ portion of delay, vexation and profitable expence: not forgetting that portion of the expence, which in the shape of profit, going into the profit of the man of law in all his varieties was the final cause of the establishment of the licence. But for the purpose of iniquity and oppression the present /immediate/ effect is all that is wanted: could the burthen of the suit be endured /borne/ to the last stage, the burthen of the expence might then be transferred or not transferred - but if transferred, never more than in part, from the oppressed to the oppressor: but before this can happen the intended victim is involved in ruin, in which be he plaintiff or defendant, is included the loss of the cause.
  • Title: [26 Oct 1805 Evidence Securities]
    Description: 26 Oct 1805

    Evidence

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    ''. Beneficial consequences

    4. The mode of correspondence between the parties and the Court for the purpose of the cause /suit/ so long as it lasts /throughout the whole of its continuance/ may be settled at once /in the first instance/, without any of those [...?] of notice on the one side or supoenas[?] on the other, or expensive and yet inadequate securities against both, which under the existing systems are such pregnant sources of expence and vexation to the parties of injustice through misdecision to him who is in the right, and of business and profit to lawyers of all classes.

    5. All the points in a cause will be brought forward at once for admission, or contestation, proof and decision at once, without being kept back to come out /as at present to be brought to view/ one after another in so may separate instruments of allegation for the benefit of the men of law who are employed in a variety of ways in the penning receipt, registration, examination, opposition or defence of them or in pronouncing judgment on the opposition and defence /them where thus opposed and defended/.

    6. Almost all causes the commencement or continuance of which is produced by mala fides on either side would disappear out of the list: the security of each i.e. his opinion of the justness of his cause, including the truth of the matters[?] of fact on which he rests his claim counterclaim or defense, being established not by gratuitous assumption, (a) nor yet by vague declaration no general terms, (b) but [...?] not by questions put by the adverse /opposite/ party in relation to all particulars.

    (a) As in English [...?] Law procedure in the Common Law Courts

    (b) As is the Oath of calumny of the Romanists
  • Title: [26 Oct 1805 Evidence Securities]
    Description: 26 Oct 1805

    Evidence

    Securities

    Ch. Procedure Natural

    ''. Beneficial Consequences

    10. The particular circumstances in respect of pecuniary and other matters /situation and circumstances and expectations in all mutual respects/ being thus ascertained /brought to view/ that particular mode of execution might in each individual instance be employed which should have been ascertained to be the best adapted to those circumstances; as being the most effectual and the least burthensome

    11. So likewise for the eventual security of personal forthcomingness and justiciability responsibility to all purposes, on both sides, and especially on that of the Defendant in the cause: in general real security or vicarious personal responsibility /justiciability/ being employed in preference where attainable, corporal security by provisional imprisonment not without the previous ascertainment of the necessity for it in the hearing before the Judge.

    Note

    (a) In English procedure the means of execution are diversified by an infinity of modifications, each of them is of course of itself imperfect, all of them together an inexhaustible mine of the most flagrant injustice.

    (b) In English procedure where the cause is not an unusual one, but the subject of it a mere /common/ debt as in the case of 19 causes out of 20, the defendant is consigned to prison in the first instance at the sole will of the plaintiff, without any cognizance [...?] by the Judge of the demand /on point of [...?]/ for vexation or procedure: the plaintiff is made to swear in general terms to the justness of his demand, but not even in general terms to so much as his opinion of the necessity of the remedy: and the remedy at [...?] open to him, though at the very [...?] he should have in his hands property of the defendants to ever so many times the value of the debt claimed.