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23 Mar. 1805
Evidence
Securities
Ch. Procedure Technical
''. Parties unheard
To violate the rule [...?] alteram partem - to refuse a hearing to either side, is mentioned in a proverbial way among men in general, but more especially among men of law not merely of iniquity /as the ultimate point of iniquity: - and/ but of that sort of iniquity, of which in the established systems an example is hardly to be found. Of this partial and incompleat /inconsummate/ iniquity examples are indeed but rare /not frequent/. But if the like iniquity doubled, doubled by being repeated upon both parties, in the established system so far are the examples from being rare, that the rare case is the finding[?] any here and there/ exceptions to the rule. To refuse a hearing to either party from first to last, by proxy /to his professional/ as well as in person /agents as well as himself/ is a sort of iniquity never practiced by men /the man/ of law. Why? because nothing would be to be got, on the contrary about a [...?] /a portion/ of the people would be lost by it. But the double of this iniquity. this refusing /refusal/ to hear so much as the agent of the party till the last stage, coupled with the refusal to hear the party himself at any stage, is an iniquity that is but too extensively in practice? - Why? because there is every thing /so much/ to be got by it: because in comparison of what is [...?] got by means of it what would be to be got without it is as nothing /little worth/.
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Title: [13 June 1805 Evidence Introd]Description: 13 June 1805 Evidence Introd Ch. Procedure Technical '.6. Exclusion of parties ''. Excluding principals which none but hired proxies were admitted. These two arrangements are in effect but counterparts of one and the same arrangement. Excluding principals without admitting proxies would not have executed the design but marred it: it would have put one end to all suits. Admitting the hireling while the principal vanished unexcluded is an arrangement that would have been little less incompetent to the purpose. Under the natural system, as hath been seen, it is the arrangement that not infrequently can namely be dispensed with. This stroke, one of the boldest as well as most nefarious /flagitious[?]/ that ever was struck either by fraud or force, could not be struck at once. A rule /principle/ of natural justice the most obvious perhaps and most unfringable of any that were presented themselves to human reason, could not be battered in breach: it was necessary to undermine it. Audi alteram partem is an adage, among the most frequent in use, as well as among the earliest in date. By another maxim somewhat more extended, the iniquity of the Judge who should presume to violate the former is denounced to the tribunal of mankind. Qui [...?], parte inaudita alterem, [...?] [...?] [...?] [...?] [...?] fuit. Audi alteram partem - the injustice, the single injustice comprized in the violation of that rule, was the utmost /most flagrant/ that in that early stage of human existence /improvement and human corruption/ had presented itself to the imagination of mankind. By the stroke, the masters stroke here in question /before us/, that injustice was doubled. To steer clear of the imputation, fiction, the supreme and everlasting God of /in/ the man of laws machinery was invoked, and not invoked in vain. In the eye of the law Parties and proxies are all one: hearing the one is hearing the other, - No, No: hearing the one is not hearing the other. Hearing the treacherous hireling, your dormant partner, your creature who plays into your hands is not hearing the /his/ principal, the oppressed and deluded party /suitor/ whom you and he have marked out for pillage. If the falshood of the subterfuge were not fully known to you, you would not be so ready with it as you are /have been so ready to devise and later it/. + Say this, and in next thing for your to say, the dove /pigeon/ and the hawk are one bird in law + It is because the presence of the party would defeat the conspiracy, that you venture on so monstrous an injustice as that of shutting the door in his face
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Title: [8 April 1805 Evidence Securities]Description: 8 April 1805 Evidence Securities Ch. Procedure Technical ''. Allegation is Evidence This rule audi alterem partem[?] [...?] is commonly regarded /spoken/ as one /among/ the deepest laid parts of the foundations of justice. The violation of it the refusal to hear on either side an arrangement by which the advantage of a hearing is refused to either side, is commonly regarded as one of the most flagrant, if not exclusively the most flagrant, of all violations of justice /the modifications /forms/ of injustice/. Examined closely /more narrowly/ it will however be found to be no more than a sort of minor and subordinate /narrower/ injustice, included in that mode /feature/ of procedure by which the technical system is distinguished from the natural. After the one side /plaintiff/ has been heard, the other /defendant/ should be heard likewise - why? because should the plaintiff's information /evidence furnished by the plaintiff/ be false, there is nothing /nobody/ to correct it: should it be incompleat, there is nobody to compleat it: and in either case /event/, deception on the part of the Judge, and from /through/ deception misdecision may be the certain consequence. True: in all this there is nothing but what may be, and is indeed but too apt to be. Still however in this case misdecision is /would be/ far from certain, and were the error /practice/ universal would be far from constant. It may be, on the plaintiff's side there would be nothing but truth: it is not natural, because it is not needful, at least when the amount of /value in/ demand is limited that there should be any thing but truth, or that any material part of the truth should be withholden, where the plaintiff happens to be in the right; a state of things which, through causes foreign to the present purpose, may be expected to be verified in perhaps nineteen instances out of twenty instances. Again: though the information furnished by the plaintiff should be at [...?] incompleat and false deception on the part of the Judge is by no means the certain or the constant consequence. It may be that of what is false, he derives the falsity: and from what is furnished, though incompleat, his good understanding, in the way of inference, supplies the rest. But,
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Title: [19 April 1805 Evidence Securities]Description: 19 April 1805 Evidence Securities Ch. Procedure Natural ''. Recapitulation In some instances /sorts of cases/ it may be proper to abstain from referring a Defendant man so much as to be called upon to appear in the character of a Defendant, until the Plff has presented /undergone/ the test of his sincerity: in these cases the first hearing /stage/ will be an ex parte hearing /hearing/. This accordingly in the course in English law no prosecutions for small penalties before one or more Justices out of Sessions. In other instances /sorts of cases/, at the instance of a Plff, and without his having been subjected to the previous test of sincerity, the first hearing may be a reciprocal one: both parties finding themselves at the same times and in the first stage of the cause, (unless the summons directed to the Def and simply appointing the term be regarded as the first stage in the presence of the Judge. this accordingly is the arrangement /course/ adopted /pursued/, in suits for small debts in the English Courts of Conscience. In /Under/ this sort of arrangement a man is not in the character of defendant absolutely exempted from all vexation, resulting from /producible by/ mala fide on the part of the Plff, in the first instance: but the /such/ vexation it can not, previously to the application of the check, have proceeded beyond that first stage: and then no source[?] is the Defendant struck upon by the vexation, than there the Plff - the author of it is - to answer and make satisfaction for it.
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