date

26 Oct 1805 Evidence Securities
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: [8 May 1805 Evidence Introd]
    Description: 8 May 1805

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    3. Imprisonment (provisional) for the purpose of securing actual justiciability and personal forthcomingness. This branch of juridical vexation is in general confined to the station of defendant, and in that station to those suits for the purpose of which such coercive means of assurances are regarded as indispensable.

    In some cases, in the view of diminishing the vexation, an engagement is accepted on the part of third persons, who, through friendship to the defendant, are content to subject themselves to a pecuniary loss in the event of his failing to become personally forthcoming or in some other way actually, justiciable, at the /an/ appointed time. In these cases the personal vexation is taken off /removed/ from the shoulders of the party, and in the shape of eventual expence, and present anxiety, transferred upon those of his friends.

    7(a)

    In English law in which the use of this accusatory[?] expedient seems more abundant than in any other established System, such persons are called Sureties or Bail: the act of procuring persons subject themselves to this obligation is called finding Bail: on the part of the Bail the act of undergoing examination for the purpose of satisfying the Judge of the sufficiency of the security is afforded by them justifying Bail: and the defendant who is liberated from the imprisonment in consideration of the vicarious security thus afforded, is said to be bailed.
  • Title: [26 Oct 1805 Evidence Security]
    Description: 26 Oct 1805

    Evidence

    Security

    Ch. Procedure Natural

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    13. It is by this means and this alone that the defendant may be secured against remediless vexation from the malice of /vexation inflicted without remedy by/ a malâ fide plaintiff. A man who can not avoid being forthcoming in his own person, ready to abide whatever in case of mal-practice may be his [...?], can have nothing to gain or to lose from the subjecting of his adversary to the same inconvenience at the same time. (a)

    Note

    (a) Under English Law a man /wrongdoer/ whose intention it is for this or any other purpose to leave the country, may by securing upon his adversary, with or without plausible ground a debt beyond what he can find bail for, consign him to prison, and without danger to himself, for years or for life: as he may leave him loaded with cash dispose[?] without possibility of relief.
  • Title: [9 July 1804 Procedure & Evidence]
    Description: 9 July 1804

    Procedure & Evidence

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    II. Factitious causes negative.

    1. Want of an all-comprehensive system of securities for justiciability (arrangements taken by the law for securing justiciability in point of fact) embracing all the varieties which a man's situation in this respect can admitt of.

    Example.

    1. Want of legal means for the arresting in the hands of the debtors debts due to a fugitive defendant.

    2. Want of a general concert and correspondence for this purpose between the several local jurisdictions /districts/ subject to /under the ------- subjection of/ the same sovereign /state/.

    3. Want of a like concert and correspondence between state and state.