date

23 Mar. 1805 Evidence Securities
23 Mar. 1805

Evidence

Securities

Ch Procedure Technical

''. Disadvantage[?] [...?] [...?]

Under the first and second of the three modification From the appearance of the parties in the presence of the Judge in the first instance the following good effects result of course /one good effect takes place/ No litigation perfectly /altogether/ groundless can be carried on /any further/ on either side /on either side - advanced/: no claim preferred: none resisted, for the mere purpose of opposition.

Of the importance of this arrangement no totally adequate idea can so effectually be obtained by any other means as by considering /observing/ the state of things that results necessarily and universally from the want of it.

In the character of plaintiff, a man not being subjected to any questions either on the part of the defendant or on the part of the Judge respecting the grounds of his claim, and the circumstances that present it to his conception in the character of a just one, has nothing but the expence and vexation attached to the litigation in the character /[...?]/ of plaintiff to restrain him from subjecting to the correspondent mass of expence and vexation any person whose price he is desirous /content/ of formenting or opposing at that price In the state of things, every mad /wicked/ man who is at the same time rich enough to support the expence feels /sees/ himself in possession of a power, the force of which increases /goes on increasing/ with every atom[?] of expense vexation and delay /which in the part[?] of cause[?] in question [...?]/ that happens to be attached to the situation of Defendant. Is it a sum of money, or a specific article of property that he coverts? It is not necessary that it should ever so much as have entered into his own conception that he has the smallest so much as the shadow of a right to it: the amount of the costs of suit being known on one hand, the amount of the Defendants relative pecuniary ability - of the quantity of the matter of wealth that he is able to employ in this way in his own defence being known, on the other hand. If the latter quantity be less than the former, the victory is secure.
Similar Items
  • Title: [23 Mar. 1805 Evidence Securities]
    Description: 23 Mar. 1805

    Evidence

    Securities

    Ch. Procedure Technical

    Let even Be the degree of ability /power of persistence/ on the part of the defendant be ever so sufficient, if through timidity or indolence the resolution /determination/ be wanting, and that determination be known, the victory /the jus nocende[?]/ to the oppressor in the character of plaintiff is equally /still alike/ secure.

    In the character /station/ of defendant, exactly the same oppression, exactly the same effect, may with equal certainty be produced by almost exactly the same means. Secure against assistance on the part of the destined victim, a man /the oppressor/ in this case has but to inflict in the his own hand the [...?] injury, instead of employing in the character of plaintiff, as he would have to do, the hand of law.

    To this plan of intentional injury grounded in the assurance /thus derived[?] eventual/ of essential /impregnable/ defence, the actual assumption of the character of defendant is not by any means necessary. The assumption of this character depends so [...?] evident /in the first instance/ not upon a man's own act but upon the act of another man in the character of plaintiff. Where Titius[?] has commenced the suit, then and not less it sits with /the option devolves on/ Sempronius whether or not to defend it. The success of the plan is alike decided, whether the victim, impressed[?] from the first with the fruitlessness or ineligibility of resistance[?], abstains from ever be assuming the character of plaintiff, or whether, actuated by the same /like/ considerations, he abandons it sooner or later after having taken it up.
  • Title: [22 Mar. 1805 Evidence Securities]
    Description: 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.
  • Title: [25 March 1805 Evidence Securities]
    Description: 25 March 1805

    Evidence

    Securities

    Ch. Procedure Technical

    ''. Security proof

    To the situation of the plaintiff substitute that of the defendant, it makes little difference. Preserved from hopeless insincerity by the prospect of these [...?] and unanswerable questions, a man will see beforehand the impracticability of carrying on a plan of manifestly groundless dilatory defence for the mere purpose of deferring the fulfilment of a known obligation, or continuing as long as possible the flowing in of profit from an unlawful source.

    But Injury[?]? - when is the bar opposed in this case to the iniquity of him who will not stick at perjury? Unquestionably not an effectual one. But the question lies between this only natural system of procedure and all existing technical ones: and the difference is this. Under the natural system /if the sanction of an oath be called in/ /being necessarily supposed to/, a man can not derive profit from conscious iniquity without encountering the perils /risk/ attached to perjury; those perils enhanced by the obligation of encountering the scrutinizing /searching/ interrogations of the injured adversary: whereas under every technical system a dishonest man, in the character of plaintiff in all cases in the character of defendant in most cases injury /reaps/, of course in the first instance all the benefit /profit/ of [...?] /[...?] an/ iniquity, and without exposing himself to the smallest risk of punishment either for /as/ perjury or for mendacity enjoys it to the whole extent of the time that he can [...?] to give to the litigation /contest/, enjoys it at no other expence than that of paying the price which the man of law, the organizer and accomplice of the iniquity and the delay, has set upon the labour expounded by him /himself/ in the manufacture of it.

    As the lustre of the game would in great part be lost were it not for the fact that lies beneath it so the excellence of the natural system would be apt to escape from notice /escape from notice/ until contrasted by the correspondent and through devious arrangements of technical procedure.