058-263.xml

Title: [7 May 1805 Evidence Introd]

Description: 7 May 1805

Evidence

Introd.

Ch.12. Procedure Natural

''.6. Modifications necessary

1. Of the terms of the father of a family /In a family/, a part, and that a very small one /of the name of the father or other Master/ suffices for every purpose /all occasions/ of judicature for the administration of domestic justice. In a political state that function requires the whole time not of one person only, but even in the smallest state of a considerable number of persons called Judges, together with others to act under their orders.

To secure forthcomingness on the part of the subordinate members of the community, as well in the character of witnesses as of parties - to secure actual justiciability on their part in the character of rectors, s no less necessary to the judicature of a family than to the judicature of the most extensive emperor. But in the family these special powers are certainly /insuperably/ included under that general mass of power which in that [...?] field of action is planted by the hand of nature. But /It is/ where the field is thus enlarged, distinct powers of this nature necessarily spring up, distinct powers, exercised /[...?]/ by different hands, and thence necessary to be distinguished by different names.

The securing in so far as it can be secured the negative values of veracity the absence of falshood as will through [...?] as through mendacity on the part of each person /individual/ heard in the character of a witness is another object the accomplishment of which is still provided for, as effectually as by any means to be provided for, by the general fund of paternal or [...?] power without the need of any distinct appropriation. But in the great family of the /a/ state to make for this purpose a provision as adequate to the purpose as in the former case requires the institution of an appropriate fund of punishment, with powers for the application of it.

7 May 1805

Evidence

Introd.

Ch.12. Procedure Natural

''.6. Modifications necessary

In the circle of a private family, living under the same roof under the eyes of a common father or master, the most intricate disputes involve little complication: the imbecillity of infancy once outgrown the weakest member is not unable to advocate his own cause: to advance /bring to view/ what is necessary to prove his claim just if it be just, or to defend himself against loss, trouble or punishment if undue Among the disputes /opposite pretensions/ which arise between family and family /one houshold and another/ some will every now and then arise /start [...?]/ in which the pretensions of the contending parties, how sincere soever on one or both sides, will on one or both sides be too intricate to be placed in their proper light without extraneous assistance. If assistance for this purpose, and that adequate to the purpose be obtainable without remuneration of the domestic or other connections of the litigate afford him /supply him with/ a patron an unpaid patron /advocate/ able and willing /who to the instruction adds the power/ and able of placing the claim in its proper light, it is well /so much the better/: but if not, the /either the requisite/ labor and skill must be paid for, or injustice must take the place of justice. To acquire a skill of this sort adequate to the indiscriminate[?] exigencies of all persons by whom the effectual demand for it may come to be presented, will under the most simple and perfect system of procedure imaginable require previous mental preparation will require the previous employment of as inconsiderable a portion of human /a man's/ state[?].

Nature[?] /appendage/ /additional/ to be added to domestic procedure to fit it for political purposes. Professional assistance /service/ rendered by a class of labourers who for appropriate /suitable/ wages are content to render it to whosoever presents an effectual demand for it.

7 May 1805

Evidence

Introd.

Ch.12. Procedure Natural

''. Modifications necessary

Space and Time receives enlargement almost without stint, where transferred from the private to the public theatre. In many a private family, the ordinary field of action extends not beyond the compass of the human voice: in many a political community it covers /spreads over/ the surface of the whole globe. In a private family, a few minutes or even a few moments will carry /suffice to convey/ the mandates of the superior member to the ears of a subordinate: in a political family months or even years may be more sufficient for the purpose. In a private family to bring the litigant members face to face in the presence of the Judge, is an incident that for its accomplishment requires neither vocation nor expences nor of term any greater portion /[...?]/ than what is included in a few hours, minutes, or even moments. In a political state /family/ in which it may often happen to a co-litigant pair of members to be separated from each other by a space equal to half the circumference of the globe a meeting thus desirable for the purposes of justice may for months or even years not be within the sphere of physical possibility, nor at the end of that term, without a mass of vexation and expence, some thousands of times beyond the value of the right or supposed transgression in dispute. At the same time the meeting which as between the parties themselves is would thus be either impossible or attended with a preponderant load of vexation, expense and delay, may, as between each of the parties and the paid or unpaid agent of the other, be not only possible and practicable but free from any such load.

Feature /additional to [...?]/ of domestic procedure to fit it for political purposes. reciprocal ex parte appearance [...?] justice. +

7 May 1805

Evidence

Introd.

Ch. Procedure Natural

''.6. Modificat n necessary

7 May 1805

Evidence

Introd.

Ch. Procedure Natural

''.6. Modificat n necessary

Of this sort are the modifications really necessitated by the enlargement given to the scale. But by this circumstance does it in any degree necessitate or so much as exterminate[?] the introduction of these factitious evils of which so many examples from above been brought to view. Is it necessary That decisions should be arguments should be called for unveiled and decisions grounded on points avowedly foreign to the merits? that a good case fully proved should be proved over again by the same evidence?

that commands should be kept secret that more may be plundered for disobedience? that it should be [...?] that is punished for the fault or misfortune of Impronius[?] That the Judge should refuse to set eyes from either suiter, all [...?] him run the gauntlet for his hunger through a time[?] of accursed plunderers?

No, no, indeed., all this mixture /compound/ /mess/ of absurdity and wickedness /[...?]/ is the more conducive to the purposes of justice in a state, than it would be in a family; in those mansions[?] into which matter the wickedness or the folly of them has ever yet entertained a thought of forcing it. No: [...?] and laurel-water are no fitter for the victualling of an army or of a fleet, than they would be of a village or a cottage.

22 Mar. 1805

Evidence

Securities

Ch. Procedure Natural

''.7. Extension for Distance

In the natural order of things, intervals are in such manner distributed over the face of the country that in each instance /of each/ the field /the [...?]/ of judicial authority is but the field /the [...?]/ of domestic labour /intercourse/ moderately enlarged. If so it be, that the abodes of both suitors be /are situated/ within the compass /[...?]/ of the same judicial district both have it in their power to repair to the judgment seat and to return to their own houses within the compass of the same day.

Such is /would probably be found to be/ the actual order of things issuing [...?] involved under the existing systems or even [...?] without any other exception than what is afforded by British /the British/ judicature

When therefore both parties have their habitation /abodes/ in the same judicial district, and that district of a moderate extent as above described, procedure commences by and carried on simultaneous appearance is no less practicable /favourable/ in political than in domestic judicature.

But within /under the government of the same sovereign/ within the [.../] of the same state, such is the extent of [...?] and such the dispersion of its /the provinces/ members in these /[...?]/ our times, it may happen that one province shall be situated in one part of the globe, another in another part so distinct as even to be opposite. In such a state of things Few it is evident, if any, are the causes the importance of which is sufficient that can make it worth while for a man to traverse spontaneously much less to forced to traverse so vast a distance. In dealing with a baker a man has omitted to pay for a loaf: in an altercation with a neighbour a man has lifted up his hand in a threatening gesture, or let drop an injurious word. All these acts are injuries, the two latter offences, trespasses in some sort against the public power. Not to redress these injuries is in each instance an injustice. But as gold, so may even justice be bought too dear. Such in the case of the forced voyage

22 Mar. 1805

Evidence

Securities

Ch. Procedure Natural

''.7. Extensions for Distance

voyage would be the amount of the collateral inconvenience, in the shape of vexation and expence, that its preponderance over the direct mischief consisting in the failure of justice, is obvious and undeniable

Suppose in the case of two parties, having their abodes in different judicial districts parcel of the same Empire, the plaintiff were to appoint as his agent a /another/ person having his above within the same judicial district as the proposed Defendant; which agent, summoning the defendant to appear /meet him/ at the tribunal of the district should meet him there as the plaintiff himself if present might would have done. Compared with the preceding this arrangement would be but a [...?], since though /while/ the agent of the plaintiff had the advantage of putting questions viva voce to the defendant, the defendant would be in possession of any corresponding means of extracting confessorial or self depressing evidence from the mouth of the plaintiff, so that on these terms the advantage would be all of it on one side. Under these circumstances however if the like faculty of facing and interrupting the adversary by proxy were given to the defendant, the inequality would at any rate be removed; though in this case whether justice /the avoidance of direct injustice/ would be worth the price paid for it by the inconvenience in the shape of vexation and expence, would depend upon the ratio of the mischief of the injustice, to the magnitude /collateral inconvenience/ of the price. In this case is the smaller modification of the system of natural procedure - of a system which notwithstanding the inconveniences attached to it is not the less natural, the inconvenience being in the nature of things [...?] natural procedure by reciprocal ex parte appearance [...?] [...?] /in the presence of the Judge/.

The case thus described may be bruised in case of exprovinciation: each of the parties being in a different province, in a state of exprovinciation, with reference to the other.

059-342.xml

Title: [12 June 1804 Procedure (2)]

Description: 12 June 1804

Procedure (2)

Basis

Domestic

Evert family is an empire in miniature. No family in which occasion may not arise for exercising powers of judicature: No family in which occasion does /may/ not here[?] and /now and then/ arise, at one time for concerning transgressions against the advice of the chief, at another time for settling disputes between /among/ the subordinate members. Functions the same in kind, distinguished only in respect of the extent of their operation /of the ground on which they operate/, from those of judicature, are in the bosom of every family in daily exercise.

The arrangement above brought to view under the name of the fundamental arrangement of judicial procedure, accordingly is no other than that which naturally being presented by the common use of mankind and of course takes place in the bosom of every private family, as often as the importance of the occasion is such as appears to call for it /warrant it/: as often as the importance of the point thus to be ascertained, is sufficient to counteract the vexation attendant on an examination so conducted - the wound given to the feelings of the persons /individuals/ thus brought into collision with each other in the character of adverse witnesses or contending parties or /and/ adverse witnesses. To no man acting in the character of a Judge, to no man in or out of a family would it occurr to omitt these /voluntarily to these various[?]/ most obvious and efficient securities for trustworthiness in[?] the evidence, if he were /supposing him to be/ sincere and anxious in his wishes to do justice. What if temerity or want of anxiety or want of sincerity - in these [...?] deficiencies are /may/ accordingly be traced, and in the most conspicuous characters, the causes of all those endless deviations by which the infinitely diversified paths /course/ of technical procedure are distinguished from this only natural one.

058-402.xml

Title: [8 April 1805 Evidence Securities]

Description: 8 April 1805

Evidence

Securities

Summary

Ch. Procedure Natural[?]

In these political tribunals, as in the domestic, so it has happened, procedure has had for its ends, the ends of justice. Awakened /Aroused/ out of his lethargy /trance/ by the fear of different /various/ necessities /necessity/, the legislator has exerted himself and rescued the suitor out of the hands of his natural enemies and licenced plunderers /depredators/.

In domestic judicature the system of procedure having the peace and comfort of the family for its object, and for its official cause the person[?] of the head of the family, lives the pursuit of that interest of the family for its final cause.

In that branch of political judicature, in /into/ /for/ which, forced by the urgency of the occasion, the legislator has prescribed or permitted the restoration of the natural mode, that is of /which is no more than/ the domestic mode constructed /acting only/ upon a larger scale, the system having in these instances too, few as they are, had the peace and comfort of the great /this enlarged/ family for its object, and for its efficient cause the power of the head of the family, acting in these four instances in pursuit of that object, and by its own advice /the light of its own wisdom/, has had /its/ the interest of that family for its final cause. add, and the welfare of the family, so far as concerned, for its final result.

Under the name /common denomination/ of technical procedure, let us comprehend once for all every system of procedure that has been the work of /from which the characteristic features of the natural, as above delineated are excluded: which is as much as to say every system of procedure which has been the work of lawyers./

Having for its efficient cause the power of lawyers - a vertical and [...?] power of legislation committed to them or rather abandoned to them by the negligence and imbecillity of the rightful legislator it could of course, and in virtue of the universally prevalent principles of human nature, have for its object the profit capable of being extended from suits [...?] from of the possessors of that power is its final cause.