date

25 March 1805 Evidence Securities
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.
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  • Title: [12 June 1805 Evidence Introd]
    Description: 12 June 1805

    Evidence

    Introd

    Ch. Procedure Natural

    ''. Confrontation. Objection to [...?]

    In England, though in point of aggregate pecuniary value, absolute value, the number of instances in which personal attendance o parties does take place is /may perhaps be/ inconsiderable, yet in point of number of causes, and thence relative /aggregative/ value, it would probably be found in a considerable degree the greater. +

    5. As to the case where vexation in this shape (as supposed) is encreased to an indefinite extent by the /an indefinite/ multitude of persons joining, conforming /confederating/, for the purpose of producing it, and without cause under every system, technical or /as well as/ natural, more will be exposed to the afflicted[?] in this way, and without [...?] of redress /powers of prevention - satisfaction/ if no adequate means of prevention nor any adequate means of satisfaction are provided in relation to it. But as under the technical system it is not forgotten /not left without provision[?]/, still less would it under the natural.

    Under the natural in the form here proposed, not one of the whole number of supposed conspirators /no single person in the character of plaintiff/ even attempt to inform[?] the defendant to his inconvenience /reaction/, without presenting himself /his [...?]/ ready to be subjected to the obligation /burthen/ of punishment or that of satisfaction or both in case of any misconduct on the part in relation to it: under the technical system, any number of conspirators may [...?] in imposing this burthen upon the individual marked out as the object of their opposition, every one /each of them/ without injured person subjecting himself to any such inconvenience or risk.

    Under the natural system no such person can in the character of plaintiff take his chance for subjecting a man to any such vexation in the character of defendant, without having previously (not only previously subjected himself to the like vexation (which to him may perhaps be no hardship, though a previous one to the opposite side) but subjected himself to examination as to the cause and real demand for the imposition of the burthen, and thence to punishment as for perjury in case of mendacity in relation to such demand. Under the technical system no such security is afforded. (a)

    + In Ch. Summary.

    (a) In the English system at least, except in particular cases.
  • Title: [25 March 1805 Evidence Securities]
    Description: 25 March 1805

    Evidence

    Securities

    Ch. Procedure Technical

    ''. Security, proof

    In the natural system of procedure, the law[?] of the greatest perfection but more particularly in the simplest /premature/ and finest mode of it, may be seen an[?] most important feature, which unless placed by itself /brought separately/ in a strong light, might be apt /be able/ to escape notice. This is the inseparable[?] bar it opposes, opposes at the very outset - to all malâ fide causes. By malâ fide causes understand not only malâ fide demands on the part of the plaintiff, but all malâ fide defences on the part of the defendant: on the one hand all demands on the other hand all defences, which are to such a degree /in such sort/ groundless, as that the party - the plaintiff in one case, the defendant in the other - can not but be conscious of their being so. Such is your demand, but on what grounds do you support it? On what article of law do you rely; as imposing upon one[?] in a case specified the obligation you call upon the Judge to impose upon me, and what facts do you say have happened, of a nature to bring one within that case? Such are the questions which a defendant of course would put to a plaintiff who conscious of the groundlessness of his claim should for the mere purpose of oppression seek to involve an adversary /his destined victim/ in the evils /[...?] [...?]/ of litigation. No: such questions would /no such questions would/ not be put: why? because for a plaintiff, or rather /that is/ a man who otherwise would /might/ have come forward /stood forth/ in that character - a man with such wishes in his heart, seeing /beholding/ in the structure of the system of procedure the impossibility of resolving them, would shrink from the contest /in the first instance - he/ - would never [...?] to /not have the courage to/ expose himself to encounter any such questions, from the lips /out of the mouth/ of an adversary, in the presence of a Judge, more especially if under the eyes of a surrounding audience /arch of spectators/.
  • Title: [9 April 1805 Evidence Securities]
    Description: 9 April 1805

    Evidence

    Securities

    Ch. Procedure Natural

    ''. Recapitulation

    The minuter and [...?] lineaments of the system will be brought to view as we advance. At present let us take a [...?] view /simultaneous glance/ /look/ of the strong and discriminatory features upon which the difference between the /[...?]/ system, and the immeasurable size that are not natural principally terms.

    1. At the very first or second stage the plaintiff in the presence of the Judge

    2. stating, under the sanction of an oath, or at any rate /rather/ under the [...?] [...?] in case of mendacity, as in the case of an extraneous witness, what the facts are on which to ground his claim, and what reasons he has for looking upon them in time[?].

    3. The plaintiff consequently /in course/ [...?] on these occasions, to hear questions put to him by the Judge, tending to rife[?] into the truth of the persuasion expressed by him in relation to those facts, and bound to make answer to all such question, on pain of seeing his claim disallowed, in case of silence.

    4. If, at this first stage, the defendant happens likewise to be present, some obligation on the part of the Plaintiff to answer any such proper questions as may be put to him by the Defendant, in the same view[?].

    The consequence is - that in a case where the claim is palpably destitute of foundation, it is in vain /it would be in vain/ for a Plaintiff unless prepared to encounter the danger of punishment for perjury to compel the defendant to undergo the expence or vexation of any further enquiry; whereas under the Natural system a man who neither has any foundation for his claim nor so much as conceives himself to have any, has it as fully in his power to cause the suit to go on and run out its utmost length, as if his claim were ever so notoriously just and undeniable. By this means /In this state of things/, all malá fide facts, that are such on the part of the plaintiff, are nipped in the bud before they have run any such length as to have produced expence or vexation to the defendant, unless where for the chance of being able to draw the suit out into further length, the Plaintiff is rash enough to encounter certain guilt, together with the [...?] of punishment as for perjury.