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26 Oct 1805
Evidence
Securities
Ch. Procedure Natural
''. 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
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Title: [25 March 1805 Evidence Securities]Description: 25 March 1805 Evidence Securities Ch. Procedure Technical ''. Security Proof A hypocrite lawyer, whose intention /meaning/ were either to spoil /betray/ and disgrace the natural system, or to give to any technical system the appearance without the reality of its use /virtue/ in the character of a security against insecurity /self-conscious injustice/ and known injustice, would /might/ have purpose the institution /introduction/ of some such formulary as might be termed an oath of sincerity, analogous to the oath of calumny, or the [...?] expurgatorium or [...?] suppletorium of the Romanists. I swear, or I declare that I believe I have a just cause of action - I swear I declare, that I have a good defence: all this upon paper[?], out of sight of the adversary, out of sight of the Judge in some such general terms as here exhibited, and without specifying what the cause of action, what the ground of defence. Examples of the sort of sham remedy /security/ of this mask for insincerity are not altogether wanting in technical procedure. I do not say that were this insipid /milk and water/ remedy, if applied to the extend of the demand would be altogether without its use. A Conscience there may here and there be, of so delicate a texture so delicate, as to be incapable of swallowing such a declaration, in the full and direct contemplation of the absence of all pretense of all [...?] to the advantage claimed by the plaint or the defence. But, of the comparative inadequacy of any such general /undetached/ and unscrutinized declaration a conception /preconception/ may easily be formed upon the bare view of it, and a conception that will receive ample confirmation in the course of the ensuing pages. Of the securing thus afforded against mala fides ([...?] oh, that the thing was but as unknown to English practice as the name!) - I say with men of law /the [...?]/ for want of a name in English /an English denomination/ mala fide, there will be frequent occasion to make mention in the course of this work. On such occasions, (since there is no speaking of any thing without a name) proof of sincerity, or oath of sincerity may for [...?] be that name. But let it never be forgotten, that when speaking of this security in question /here in view/ by any such name, I mean not any /surely and simply a pre-appointed/ verbal formulary, devised /appropriated/ to this purpose, but the natural and necessary effect and virtue of the faculty of reciprocal interrogation [...?] judice, as confirmed of course in the parties by the natural system of procedure in its simplest /most simple/ and natural form as here designated.
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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.
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Title: [26 Oct 1805 Evidence Securities]Description: 26 Oct 1805 Evidence Securities Ch. Procedure Natural ''. Beneficial Consequences 7. Any number of causes between the same parties and touching upon the same evidence might thus bar various soever in their testimonial description or even real [...?] to be decided at the same hearing; and when it was not conclusive the evidence heard /received/ for the purpose of one cause might be employed pro tanto in any number of others. 8. In case of dubious or imperfect solvency on either side especially on the defendants +, measures may be taken for correcting dubious solvency into certain and immediate, and in case of imperfect solvency for presenting the effects /assets/ from being swallowed up by the men of law /either by lawyers/ to the prejudice of the creditors, or by one or a few creditors to the prejudice of the rest. 9. For the purpose of striking a ballance, conferring the payment to the amount of the ballance and reducing any number of suits to one, any number of counterclaims how various sources in their technical denomination or even their real nature may be if not decided upon, at any rate brought into view at once, to the extinction of that species of injustice which consists in the allowing to an insolvent person the benefit of his own claim which his insolvency, unfortunate or wilful, exempts him from the burthen of satisfying the /an/ equally rightful claim on the other side: - in other words the application of the principle of set-off would possess the whole extent marked out for it by justice, without being frittered down in an endless variety of ways by lawyers /men of law/ for the benefit of lawyers /men of law/.
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