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.

JB_022_182.xml

Title: [1820. Octr 19 Spanish liberticide measures]

Description: 1820. Octr 19 Spanish liberticide measures 15 Letter 2. Public Discussion 15

To the keeping up this disposition to eventual resistance partly by instruction

partly by excitation, the unrestrained communication of all ideas belonging to

the field of government is necessary. It is therefore the characteristic of an

undespotic government to give not only toleration but favour to such

unrestrained communication: and this with a view not only to instruction but

excitation: for without correspondent excitation all the instruction imaginable

would not be productive of any effect. Instruction applies to the understanding;

excitation to the will: both must be in a suitable state or no effect can be

produced.

In /Of/ popular meetings various sorts or modifications might in this view be

distinguished: instruction and excitation can not in any case be altogether

separated: of every such meeting it is the tendency to be in some degree or

other conducive /contributory/ to both those effects: some however are in a

greater degree /more particularly/ conducive to the one of these two instruments

of political security, others to the other.

A meeting in an open space /and unlimited space such as an unenclosed field/ is

more particularly conducive /suitable/ to excitation than to instruction: a

meeting within a limited space such as a room public or private is more

conducive /suitable/ to instruction than to excitation.

A meeting open to all /once for all/ without distinction, or even to all who at

each time pay a small sum for admittance, is more suitable to the purpose of

excitation than to that of instruction: a meeting held as one of a fixt and

permanent series of meetings is more suitable to the purpose of instruction than

excitation. A select meeting or meeting of a Society with which in addition to

those by whom it was first formed none are admitted but by election is more

suitable to the purpose of instruction than of excitation: in regard to

excitation it is more suitable to the purpose of maintaining a constant and

ordinary degree, than any such extraordinary degree as on extraordinary

occasions may become necessary to the proposed end.

093-024.xml

Title: [11 Feb y 1807 Letter IV Resolut]

Description: 11 Feb y 1807

Letter IV

Resolut. 6.7.8.9

Juries

1 Delay

Taking up my pen in despair /a fit of desperation/ as the preacher took up his book[?], I set down at once six months for the average /thus explained/ minimum length of a suit[?] at Common Law with Jury trial in the belly of it: six months thus being in round numbers the nearest to the quantity by which I should expect to find it expressed. Should I have hit the right nail on this head as he did, when by a pagan miracle the foam of the horse gushed out of it, so much the better. But my Lord feeling the argument strong enough to bear the disadvantage in all allowances and having as the French say, margin enough instead of the 6 months, I will be content with 3 months making days 182, hours 4368 months ........262,080

But, if an undisputed cause in a Court of Conscience, the length as above stated above may be set down, and after large and unfavourable allowances at 5 months - say minutes - 5

262,080 minutes as to 5, as 52,416 to 6 - here[?] then, for the expence of the support, the nominal[?] support given to the law by the logical conjugate of the word law viz: the word lawyers, as have in 9 causes out of every 10 in the article of delay alone, for one natural and necessary particle 52,416 factitious and unnecessary ones.

Meantime /But/, my Lord, after the allowance thus made ex majori cantilâ[?] , and for the purpose of the argument, I protest against the being considered by Your Lordships learned Scotch Reformers or by any learned gentlemen on either side of the Tweed as being estopped[?] from expressing the ordinary length of a suit by the quantity of 6 months, or 12 months, or even 24 months, for my Lord if the least quantity of a grievance be worth notice neither are the middle nor the greatest quantities altogether undeserving of it.