date

14 Jan 1805 Evidence Securities
14 Jan 1805

Evidence

Securities

Ch. Procedure Technical

'.1. Introduction

An excuse /apology/ - or rather a shadow of justification /reasonable cause/ presents itself, I mention it in this place /thus beforehand/ that to the and/ for the sake /purpose/ of judging of the truth of it /what foundation there may/ /whether there be any and what foundation first/, the topic may be all along kept in view. True: says the argument /it may be said/: in the arrangements pursued in regard to the mode of extraction, and other dispractice[?] trends in the view of securing the trustworthiness of evidence, great /very considerable/ variations may be observed: yes, but these variations are no more than the apposite variations called for by the correspondent variation observable of the different cases.

Alas no! A defence of this sort may present itself to a distant view, as a topic ready prepared in the [...?] of common place. But when /as/ the particular cases came to be looked at in this view, the inapplicability of it in each instance will be but too incontestable.

Of the features of excellence/ congruity/ above catalogued /collected/ and brought to view there is not one that is not copied form English law /its practice of English jurisprudence/: yet so all [...?] by the stock the talents bestowed by fortune been improved, that is the bare list of those features the contamination and disgrace of the English system may already have been read by every English lawyer of any such there be who to the [...?] has added the courage to contemplate it in so unwelcome a point of view.

So much for the man of law. He, if he durst, would be able to anticipate the contents of the succeeding pages. But for this same lawyer every thing will require to be proposed and had in order to his views /for his view/. +

+ Neither on the one part nor on the other will any thing but necessity - absolute includible /[...?]/ necessity, but to silence the [...?] /song/ of ill-deserved eulogy which from the first dawn of reason he has heard uttered from mouth to mouth by a chorus of entrusted[?] instructors[?] and their [...?].
Similar Items
  • Title: [4 May 1805 Evidence Introd]
    Description: 4 May 1805

    Evidence

    Introd

    Ch 2 [...?] [...?]

    '.2 Importance

    In this topic may be seen the fundamental part of the whole inquiry. Upon the propriety /congruity/ of this part /of the [...?]/ depend /rest/ the propriety /congruity/ of every other succeeding part.

    Upon the accuracy of the conception formed in relation to the ends, depends the due choice and success of all the legislative arrangements employed in the character of means.

    He who takes[?] over at a mark may fail of hitting a mark; but that he who never so much as looks at it should hit it, is every thing but impossible.

    Met[?] at of the end of judicial procedure, by what legislator, by what writer whom[?] has[?] very shady sum as yet been taken? By whom[?] has any[?] compleat and correct list of them been so much as attempted to be formed?

    What is necessary before all things is, - that if there be several ends, the enumeration /list formed/ of them be compleat. But that in so wide a field of action there should not be several ends, is impossible. For suppose /as/ what for strength of grasp and facility of retention[?] is altogether desirable suppose the ends howsoever numerous[?] to be reduced all of them to /under/ one expression, the one end thus constituted will not the less /nevertheless/ be distinguishable into so many particular ends as were thus tied up as it were in one bundle, for the facility /convenience/ of discourse. To frame a compleat list, and to secure to each article in it a clear as well as precise and concise expression will be /If there be/ the business of ensuing chapters

    If between /as amongst/ any number of ends - particular and subordinate ends there be any mutual incompatibility or contrariety, an /the/ order of preference, or terms of reconciliation, must be adjusted before any determination can be formed /framed/, respecting the choice of legislative arrangements /means/ in the character of means. To place in a just[?] point of view whatever opposition may be observable as amongst the ends of procedure will be the business of another chapter.

    [In margin:] What shall we say /will the [...?]/, if in the course of this enquiry he should find this and that and [...?] other end, in the instance of which instead of coming at the end, creative[?] established practice, should have never ceased to aim at the production or augmentation or perpetuation of the very[?] evil[?] in the repulsion of which the end consists?
  • Title: [30 Jan y 1805 Evidence Securities]
    Description: 30 Jan y 1805

    Evidence

    Securities

    Ch. Engl. Proleg.

    The rules by /in/ which the [...?] [...?] ultra[?] of perfection in this line stands expressed, have above been brought to view. the rules claiming the performer[?] in favour of vivâ voce examination expressive of the plan to be observed in relation to it. ( ) These rules, in so far as concerns /as to/ the fundamental points of the plan as to every thing but a few /here and there/ incidental points of imperfection easily corrected, are /constitute/ /are no more than a/ the exact delineation /picture/ /correct copy/ of that which for shortness may be termed the English System.

    Custom, produced and supported by a mixture of professional interest and party[?] prejudice, would find an equally short and more particular mode of expressing the characteristic features of this system by looking /seeking/ for a denomination for it in the Trial by Jury, and regarding /considering/ it as an inseparable accompaniment of that mode of judicature. But the plain truth of the case is, (examples in abundance will manifest it so to be) is that its connection with the species of men's[?] internal so comprised is purely accidental, and that a much more advantageous /perfect/ opinion of it may be seen in those affectedly disposed but most useful of all non-penal tribunal, stated Courts of Inquests but more commonly Courts of Conscience.

    Note

    ( ) viz: Rules 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17
  • Title: [30 Jan y 1805 Evidence Ch.]
    Description: 30 Jan y 1805

    Evidence

    Ch. Engl. Proleg.

    ''.1

    In giving to the system the denomination of the English System, I had no other view than that of applying to that purpose a notorious and simple matter of fact. National attachment had no share in the bringing to view a matter of fact which will /may/ be seen to afford so little cause for national exultation /pride/ /self esteem/.

    The plain truth is that in this part of the system of established procedure, nothing more is to be seen than a fragment /a fragment preserved rather by accident rather than degree[?] /fortune rather than by wisdom//, a pretious[?] fragment of the system of natural procedure - of domestic procedure of that mode of procedure which common sense dictated from the first still continues and never will cease to dictate /present/ as the plan proper to be pursued, and which accordingly is pursued in the bosom of every private family in that sphere of interest which Nature has set up /established/ in the district /demesne/ of every family, by the head of the family, as often as occasion calls for the exercise of the unpleasant but sometimes necessary function of sitting in judgment on the conduct of any of its members /subordinates/. If the characteristic features of it are still perceived in the Trial by Jury /procedure/ in that system in the construction of which, together with the abuses with which it is covered, the cult[?] of lawyer craft have had so large a share, it may be sure in much better prosecution in the procedure of these tribunals, within the /whose/ pursuits of which the professional man of law has been unable or has disdained to penetrate /intrude himself/.