date

2 April 1805 Evidence Securities
2 April 1805

Evidence

Securities

Procedure Technical

Punishment

But costs of suit: especially is being paid by the party in the wrong, they include those of the adversary /his injured/ whom he has injured: - costs of suit - the obligation of paying them - does not this burthen operate with the effect of punishment: and does /is/ not this burthen increase with /augmented by/ any mendacious allegation with which a mala fide suitor torments his adversary?

I answer - by no means. In the first place this burthen - this punishment is not attached to the offence with any uniformity and steadiness.

In the next place, if it were ever so conformity, it would not yet have the effect of depriving mendacity of the included and necessary licence. Of every such allegation, whatever in respect of costs may be the ultimate effect, the unavoidable effect is to give rise /existence/ to /for/ the present, to the projected /preconstructed/ /predetermined/ /intended/ portion of delay, vexation and profitable expence: not forgetting that portion of the expence, which in the shape of profit, going into the profit of the man of law in all his varieties was the final cause of the establishment of the licence. But for the purpose of iniquity and oppression the present /immediate/ effect is all that is wanted: could the burthen of the suit be endured /borne/ to the last stage, the burthen of the expence might then be transferred or not transferred - but if transferred, never more than in part, from the oppressed to the oppressor: but before this can happen the intended victim is involved in ruin, in which be he plaintiff or defendant, is included the loss of the cause.
Similar Items
  • Title: [2 April 1805 Evidence Securities]
    Description: 2 April 1805

    Evidence

    Securities

    Ch. Punishment

    The power of oppressing /oppression/ thus included in the [...?] mentioned thus given to parties thus given to allegations, is beyond measure more effective /more salutary to injustice, more fatal to justice/ than if given to testimony /testimonial [...?]/ given to witnesses in (viz: extraneous witnesses) and to parties in the character o f witnesses. By mendacious testimony, no point or [...?], any further than as it is believed /obtains evidence/: and being by the supposition mendacious /false/, the preponderant probability is that it will obtain evidence. gut that /in order that/ by means of these mendacious allegations a malâ fide suitor should gain his point, it is not necessary that the allegation should in the end have any the smallest chance of obtaining evidence. The object is to make the suit more as a certain length of way: viz: the length of way which in virtue of the pre-established order of things it travels of course in consequence of the exhibition of an allegation to that effect. This length of way it is sure to make: for the mother of this pre-established system - the Judge, for the purpose of holding himself warranted as subjecting the other party to take[?] the ulterior steps in question, the Judge, be the allegation ever so flagrantly mendacious is predetermined to take it for true /act as if it were true/ /believes it to be true/. or what comes to the same thing, to avoid seeing out the falsity of it, and to act in a manner in which /in point of justice and honesty/ he could not be warranted in acting, upon any other supposition than the certainty of its being true.
  • Title: [15 April 1805 Evidence Securities]
    Description: 15 April 1805

    Evidence

    Securities

    Ch. Procedure Techn.

    ''. Allegation is Evidence

    What is curious, is - this sort of information /All the[?] which/ /incontinent[?]/, which is considered as not amounting to evidence - as not trustworthy enough to deserve the name of evidence - this information which is never considered as professing any /capable of acting with/ weight in the scale of evidence - which is never so much as received with the budget of evidence - to this very species /sort/ of information such a degree of power /efficiency/ - of effective power - is given - such a degree as is not /scarce/ in any case given to the most trustworthy article /lot/ of evidence. In no instance no article of evidence at least of testimonial evidence is considered as commanding the decision prayed /demanded/ for by the party by whom it is produced /sought for by the production /exhibition/ of it/. In every instance Information of this sort here in question - allegation - I mean allegation which constitutes the ground work of the cause is understood to exercise an absolute command over the decision or decisions sought for by the production /exhibition/ of it: or else, what courses exactly to the same thing, the same effect is made to take place - the same chain of burthensome obligations by some /a/ pre-established system of arrangements established either/ whether/ by the legislator, or by jurisprudential law acting in the place and during the shape of the legislator, is known /imposed/ upon the adverse /opposite/ party - the defendant, as would be thrown upon him by a corresponding chain of decisions specially adapted to each particular purpose.

    To defend /of defending/ himself against the demand made upon him by the instrument of allegation by which the suit is commenced, shall cost a man for example /the expence shall amount for example under the system in question to/ a year and a half; income of an average individual: such then is the amount of the pecuniary burthen which under that system every man is empowered to impose upon any other - upon every other - by that sort of information - bare allegation - which is not understood /regarded/ to be sufficiently trustworthy to bear the name of evidence.

    Note

    ( ) Under English jurisprudence, the expence on one side only - that of the df t for example amounts at its minimum to more than the quantum above exemplified.
  • Title: [11 May 1805 Evidence Introd]
    Description: 11 May 1805

    Evidence

    Introd

    Ch Collateral Incidental

    '.6. Expence

    Vexation (it has already observed) can not be transferred to /from/ a different seat /seat to seat/ without changing its nature /shape/: expence may without any change in its nature go round the world without any change or shape: although, according to the situation of the person on whom it falls, the degree of its pressure[?] is susceptible of variation on a very large scale.

    In the case of expence this transferability is a happy circumstance /fortunate property/. the quantity of suffering ultimately pressing upon the community taken together is in some instances /cases/ lessened by it. Suppose that in this or that instance, the conduct of a party has been such as to create a demand for punishment. Give to the punishment the form of pecuniary punishment, the produce[?], if suitably applied, the produce[?] by being made over to the persons damnified or otherwise vexed on the occasion of the suit, the produce[?] of these suitably applied, annihilates so many lots of vexation, which otherwise would /with the pressure of which society would otherwise/ have continued to be afflicted. Such is the end of that allowance which in the practice of the English law is for shortness expressed by the name of Costs[?].