1
results found in
391 ms
Page 1
of 1
26 Jan y 1805
Evidence
Securities
Ch. Procedure Technical
''. Parties unheard
Ch. Arrangement common to all technical systems - exclusion of the parties from the presence of the Judge.
Before we come to the display /bring to view/ of the leading features of the two rival systems, and thence consequently their marked points of difference, one feature /arrangement/ which they have in common is so fundamental a one, and so [...?] of every thing that follows, that unless it were stated in the first place /brought to view at the outset/, mist /a cloud of mystery would/ all the succeeding details would remain envelopped as it were in a mist. I mean the exclusion of the parties from the presence of the Judge.
The application of it, it is evident, extends not to all sorts of causes. It extends not to penal causes of the higher classes, in which the forthcomingness of the defendant is necessary in the first instance /as soon as it can be obtained/, to secure his forthcomingness at the concluding stage for the purpose of punishment. To penal suits of the lower ranks /inferior degrees/ it is neither unapplicable /inapplicable/ in its nature, nor unapplicable in practice. But those of the non-penal class causes between individual and individual /causes in which the public has no considerable interest/, those more especially which have property /in matter of wealth/ for their subject matter - those are the causes in which the existence of this feature is most uniform, and its effects upon the administration of justice or what goes by the name of justice most important and conspicuous.
The matter of fact, notorious as it is would remain wrapped up from first to last in a coat /veil/ of mystery, if at the outset, the causes of it, as well as final as well as as efficient[?], were not brought to view. Without this explanation the whole system is a riddle, and that riddle altogether an inexplicable one. Point out the cause, you gave the key to the riddle: every thing new is plain and clear: all is mystery and darkness are no more - the riddle /enigma/ is solved: /the enigma is drawn up:/ all mystery is at an end.
+ every arrangement that presents itself, is an effect without a cause
+ all [...?] circumstances are seen rising out of that first cause.
Similar Items
-
Title: [16 May 1805 Evidence Introd]Description: 16 May 1805 Evidence Introd. Ch. Reconciliat. Offices It is time the strain upon the reader's conception were relaxed: it is time the mystery were unravelled. In Denmark the characteristic features appear to have been these. I put /place/ in front those which appear to have been /present themselves/ the efficient courses of whatever has been done: in the rear, those whose /of which/ the highest praise is that of not having been triumphant obstacles - 1. First step, the Meeting of both /all/ parties in the presence of the Judge. /Court./ the characteristic feature of the natural system of procedure, in contradistinction to the technical. 2. No professional lawyer suffered to set his foot either on the bench or so much as at the bar: an arrangement desirable as far as it is practicable, but in some cases scarce /not/ practicable. /absolutely impracticable./ 3. Fees, none at all, or so inconsiderable as not to be felt. 4. The parties neither of them upon oath, nor in any other way punishable, understand by legal punishment, as for mendacity 5. The proceedings secret from first to last. 6. The officers, so many bees without stings, serpents without teeth. Judges without power to in force, or to procure the inforcement of their own decrees: in recompence an unlimited power of preaching and giving good advice. 7. No plaintiff in any course within the jurisdiction of this Court, permitted to [...?] a defendant into any other Court, without having given him a previous option of meeting him at one of these Courts.
-
Title: [23 July 1804 Procedure & Evidence]Description: 23 July 1804 Procedure & Evidence 6 (3) Note? Enquiry Mode Ch. Advantages In the different systems of technical procedure it is curious enough to observe, by what industry, or by what good fortune, how the influence of this natural preevention of malâ fide causes has been eluded. In the Romano-Gallic system, in non-penal cases the faculty of extracting evidence from the testimony of the adverse party is not refused, as in the English system it was and continues to be in the originally instituted Courts called the Common Law Courts. It is even allowed to be extracted by /in the way of/ vivâ voce examination, and pro tanto so far in the best mode: not by strings of questions following one another in an instrument, followed /replied to/ on the other side by strings of questions following one another in another instrument, as in the English Equity Courts. But the person by whom the extraction is performed, is the Judge: the adverse party far from being allowed to put questions, is not so much as permitted to be present. The fatal consequences of a mutual explanation of the parties in the presence of the Judge, each with powers for extracting truth from the unwilling lips of the other, are thus happily, if not /have thus happily at least, and probably enough/ ingeniously avoided. In the English system, the appearance of the parties in the face of each other and the Judge is compleatly avoided and prevented in all cases except those in which it is not possible to prvent it. These are a [...?] class of criminal causes /+In causes non-penal premature[?] explanation[?] is avoided. in which the defendant appearing unavoidably in the character of a prisoner, and the Courts open [...?] exclusion of the adverse party the prosecution is impossible: especially of as in most cases /[...?]/ and of a penal nature he is admitted in the character of a witness. But in this case besides that explanation would come too late, by far the greater part of the delay, expence and vexation of the cause being already incurred, the shame of explanation is avoided in no inconsiderable degree by another arrangement: no question which the defendant would not wish to answer being sufficient to be put to him in any [...?] case for fear his guilt should come to light. It seems implicitly understood by /in/ the [...?], that no unnecessary discouragement should be thrown in the way of customers.
-
Title: [29 May 1804 Procedure (3)]Description: 29 May 1804 Procedure (3) Ch. Special Pleading But through the recognition of the continually repeated Parliamentary recognition of the abuse confined to the case of Special Pleading, the abuse itself is not confined within a such limits: it extends /embraces/ the whole system /it includes the general upon[?] itself/ of what is called regular procedure as contradistinguished from summary. It extends to every form of procedure which - except in the accidental cases where the forthcomingness of the parties /a party/ in the first instances is not obtainable without preponderant inconvenience (admitts the first allegation to be made admitts any correspondence between the parties in the first instance otherwise than in the presence of the Judge) permitts the suit to take its rise otherwise than in the presence of the Judge: to every form of procedure in which while the system /course/ of vexation and plunder is going on, for the benefit of the forces[?] of the profession, dominus is hiding /hides/ his face /all the while is hiding his face/, like the /a/ matter of the house in days of yore, looking at the [...?], while his servants to the right and left were paying contributions on the departing guest under the name of vails[?]. No system of procedure is any thing better than a system of abuse, in which as soon as the necessary steps are taken to secure the forthcomingness of the parties and especially of the defendant, the course /any further step/ is taken that has not been preceded by an appearance of the parties face to face /in the face of each other/ in the presence of the Judges Courts of summary procedure may be stated as the only Courts in which it is possible to do justice.
1
results found.
Page 1
of 1