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25 March 1805
Evidence
Securities
Ch. Procedure Technical
''. Security Proof
A hypocrite lawyer, whose intention /meaning/ were either to spoil /betray/ and disgrace the natural system, or to give to any technical system the appearance without the reality of its use /virtue/ in the character of a security against insecurity /self-conscious injustice/ and known injustice, would /might/ have purpose the institution /introduction/ of some such formulary as might be termed an oath of sincerity, analogous to the oath of calumny, or the [...?] expurgatorium or [...?] suppletorium of the Romanists. I swear, or I declare that I believe I have a just cause of action - I swear I declare, that I have a good defence: all this upon paper[?], out of sight of the adversary, out of sight of the Judge in some such general terms as here exhibited, and without specifying what the cause of action, what the ground of defence. Examples of the sort of sham remedy /security/ of this mask for insincerity are not altogether wanting in technical procedure.
I do not say that were this insipid /milk and water/ remedy, if applied to the extend of the demand would be altogether without its use. A Conscience there may here and there be, of so delicate a texture so delicate, as to be incapable of swallowing such a declaration, in the full and direct contemplation of the absence of all pretense of all [...?] to the advantage claimed by the plaint or the defence. But, of the comparative inadequacy of any such general /undetached/ and unscrutinized declaration a conception /preconception/ may easily be formed upon the bare view of it, and a conception that will receive ample confirmation in the course of the ensuing pages.
Of the securing thus afforded against mala fides ([...?] oh, that the thing was but as unknown to English practice as the name!) - I say with men of law /the [...?]/ for want of a name in English /an English denomination/ mala fide, there will be frequent occasion to make mention in the course of this work. On such occasions, (since there is no speaking of any thing without a name) proof of sincerity, or oath of sincerity may for [...?] be that name. But let it never be forgotten, that when speaking of this security in question /here in view/ by any such name, I mean not any /surely and simply a pre-appointed/ verbal formulary, devised /appropriated/ to this purpose, but the natural and necessary effect and virtue of the faculty of reciprocal interrogation [...?] judice, as confirmed of course in the parties by the natural system of procedure in its simplest /most simple/ and natural form as here designated.
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Title: [26 Oct 1805 Evidence Securities]Description: 26 Oct 1805 Evidence Securities Ch. Procedure Natural ''. Beneficial consequences 4. The mode of correspondence between the parties and the Court for the purpose of the cause /suit/ so long as it lasts /throughout the whole of its continuance/ may be settled at once /in the first instance/, without any of those [...?] of notice on the one side or supoenas[?] on the other, or expensive and yet inadequate securities against both, which under the existing systems are such pregnant sources of expence and vexation to the parties of injustice through misdecision to him who is in the right, and of business and profit to lawyers of all classes. 5. All the points in a cause will be brought forward at once for admission, or contestation, proof and decision at once, without being kept back to come out /as at present to be brought to view/ one after another in so may separate instruments of allegation for the benefit of the men of law who are employed in a variety of ways in the penning receipt, registration, examination, opposition or defence of them or in pronouncing judgment on the opposition and defence /them where thus opposed and defended/. 6. Almost all causes the commencement or continuance of which is produced by mala fides on either side would disappear out of the list: the security of each i.e. his opinion of the justness of his cause, including the truth of the matters[?] of fact on which he rests his claim counterclaim or defense, being established not by gratuitous assumption, (a) nor yet by vague declaration no general terms, (b) but [...?] not by questions put by the adverse /opposite/ party in relation to all particulars. (a) As in English [...?] Law procedure in the Common Law Courts (b) As is the Oath of calumny of the Romanists
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Title: [16 May 1805 Evidence Introd]Description: 16 May 1805 Evidence Introd. Ch. Reconciliation - Offices The court without power of inflicting punishment, under the name of punishment, but with an untainted[?] power /possessed of an unrestrained faculty/ of interrogation, and therefore /thence/ not without the power of calling for compliance with their advice, under the penalty of present shame[?]. No cause in any other Court without previous examination in this Court. Therefore no mala fide demand or mala fide defence capable of being set up without having been previously brought to light and to shame in this Court. No compulsory power for converting the[?] recommendations of this Court into obligatory mandates. For what reason refuse this /withhold a/ a power seemingly thus indispensable? perhaps for this, that /not[?]/ the Court, not having any men of /'professional and experienced men of/ law amongst them, should make decisions pregnant with compassion[?], because repugnant to the tenor or purport of existing and established[?] laws. But would it be absolutely impossible to find an honest lawyer who for all the rewards that profit /salary/ or honours could bestow could not be prevailed upon to act under the natural system of procedure? Is the conception of an honest lawyer so compleatly visionary. In the English Courts of Conscience the same practice /design/ /policy/ and perhaps with the same view with regard to /so far as concerns/ the exclusion of lawyers, I mean from the bench, appears generally to have been adopted: the object was the getting rid of those technical rules the observance of which would, in relation to that humble and limited sphere of notion have been altogether incompatible with /[...?] to/ all justice.
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Title: [10 July 1810 + ' 4 4 + B. 2 P\T]Description: 10 July 1810 + ' 4 4 + B. 2 P\T t T\ Ch 6. Sec 4.3 Fallacies Ins or Eitherside Causes & Obstacles 1 4.3 Virtue Universities 16 Aug. 1819. Is not this superseded by "Swear not? ' 4.3 Effecta National Virtue: Obstacle stated as a cause Doctrine and Description of Church of England Universities If sincerity be a virtue - if sincerity be not only /itself/ a virtue, but the basis of all the rest - if in one sense /in its effects/ all justice depends on truth, - if in another sense /the mind of him whose judgement or action is in question/, all justice depends upon the regard paid to truth - if this be admitted, it will then (such in that seat /those seats/ of supposed /or at least/ virtue is the state of antient and still continued practice, that if in other respects an honest and worthy man be to be found in the elder of the two English /an English/ Universities, it must be not because, but notwithstanding, he is a Member of it. If sincerity be a virtue /if and veracity be a virtue/ - if its opposites /their opposites/ insincerity and mendacity are vices, much more the /much the/ deeper must be their tinge, the greater the degree of recollection and /or/ intensity of asseveration with which the false declaration is accompanied /has been preceded/. Such is the case where for its sanction the for the purpose of augmenting the force of the obligation supposed to be incurred, the asseveration has been /is/ accompanied by the sort of ceremony of /called/ an oath.
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