date

15 April 1805 Evidence Securities
15 April 1805

Evidence

Securities

Ch. Procedure Technical

''. Allegation is Evidence

Instead of 12 years' income propose to ground a decision bereaving the defendant, though it be but of 12 day's income, by a decision grounded on ex parte information in the shape and under the name of evidence, and under all the securities against falshood and deception that are regularly brought to bear upon whatever goes by the name of evidence, a man of law will /would/ stand aghast at the injustice: - bereave him of 365 times the amount or by a chain of decisions or preestablished arrangements having the effect of decisions, bereave him of 365 times the amount, on the ground of a bare allegation to which none of the securities against falshood and deception are suffered to apply, all this is perfectly right, consistent with the dictates of justice because consistent with the established course of judicature, and thence we are to understand of course, with the dictates of what goes by the name of justice.

Whence this[?] inconsistence? Whence this unsurmountable /invincible/ scrupulosity in the one case, this boundless facility in the other? from this, that because the exposing a man in the way in question to the chance of being unduly bereaved of the value of 12 day's labour, would besides the discredit that it might reflect upon the operations /arrangements/ /administration/ of the man of law deprive him of the profit attached to the admission of evidence on that side.

Whence this boundless facility in the other case? - From this, hat by /from/ his being dragged from the beginning to the end of the course of technical procedure bereaved of /out/ the value of 12 years' labour which has been squeezed out of him by the time that he has been dragged from the beginning to the end of a course of technical procedure, a great part, perhaps by far the greater part has been determined[?] by the multitudinous hands to feed the multitudinous mouths of the man of law.

+ Such then are the properties given to the [...?] /initiator/ of allegation - the instrument by which any man, as is [...?] given to it by any other man. be dragged through a suit at law. It is evidence, and it is not evidence: yes - evidence for the purpose of determining the fate of the adverse party, and with a degree of efficiency not allowed even to the strongest evidence: no. it is not evidence, to any such purpose as that of being subjected to any of the checks to which evidence is subjected.
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  • Title: [8 April 1805 Evidence Securities]
    Description: 8 April 1805

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    continued

    But, in the case in question, misdecision to the office in question is the certain result: it is prepared beforehand: deception is not necessary to it: right intellection[?] /true conception/ affords no remedy to it: it is the work not of the Judge, whose disavowal[?] if applicable /permitted/ to it /to act/ might have applied the remedy, but of the law: that is of /most commonly of jurisprudential law: that is, of/ the mischief or wickedness or weakness of his predecessors grown by sufferance into law. Here no deception is produced, for judgment /the judicial faculty of the judge/ is not permitted to take cognizance here[?] to exercise itself: not even is mis-decision produced: for the /here/ mischief springs up of its own accord, nor requires the aid of decision, fresh and individual decision, to give it birth to it. A mischief equal to what would have been produced by deception and misdecision united, is actually produced without either. It is not that injustice is more or less probable, but that, as against the injury in question, justice is impossible.

    Of A certain set of proceedings an inquiry for example into the truth of a certain alleged fact the cost to the df t would be ,40: if upon allegation made by the plff of the existence of this fact, the inquiry takes place of course /by a preestablished arrangement of procedure/ the consequence to the defendant so long as the inquiry lasts, and for ever if no part of the money is ever replaced to him, is just the same as if at the instance of the plff he were condemned unheard in a fine to that amount. But in /under/ the existing technical system of procedure it is in the power of every man whatsoever to subject any other man whatsoever to certain suffering in this way. How? merely by delivering as, according to a preestablished form any one of the sorts of general allegations by which so many sorts of suits are regularly commenced. But under the existing system to deliver in any one of these forms of allegation is just as [...?] to a man who in his own instance[?] knows it not to have the smallest foundation in truth, as if the fact alleged had passed under his own eyes. Here stems under the technical system under which an open [...?] /every Court of justice/ is kept for the sale of [...?] oppressive licences in [...?] form the opulent man pays down his money for the licence, and the ruin of the indigent man his destined victim is the certain consequence. Under the natural system in a Court of [...?] or before a Justice of Peace, the intended victim standing opposite to him and looking him in the face, the very first question put to him would leave him [...?] without [...?...?] to say for himself, and his first care would be to [...?] out of that Court on [...?] [...?] triumphs.
  • Title: [15 April 1805 Evidence Securities]
    Description: 15 April 1805

    Evidence

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    ''. 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: [23 April 1805 Evidence Securities]
    Description: 23 April 1805

    Evidence

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    In fact, and probably /surely/ not without design, under the technical system allegation is carefully distinguished from evidence. Call it evidence, it might in case of mendacity, be punished /stand exposed to punishment/: call it allegation - bare allegation, a pretence is found, crude as it is, for exempting it from punishment. View it in the true point of view, view it otherwise than through the medium of habit and prejudice, the appellation of evidence belongs to it with no less propriety in the one case than in the other. In point of utility there is no better reason in this one case than in the other why mendacity should go without punishment or without shame, why a certainty of success should be secured to its endeavours /its exertions/. /or why it should be crowned before hand by a /the/ certainty of success./

    Yes: evidence it is in both cases. In both cases it /the one case as well as in the other, it/is even capable of appearing in all sorts of shapes from the most trustworthy down to the least /that which is least so/ trustworthy. So what is called allegation the original allegation of the party is it of the nature of makeshift evidence? is it for example no more than Hearsay evidence? Thus it may be and often is: though not necessarily: but of this sort may be that which is called evidence, and yet be received have its weight and a weight sufficient of itself to decide the cause. Is it self-serving? but so is that which is called evidence: yet this is not only received /admitted/, but on a thousand occasions, and under the established system, admitted to be conclusive.

    All that can be said is - that the allegations in a cause are very apt to be of the nature of Hearsay and other makeshift evidence, and that any may be accompanied with a just claim in cases where the witness the self-regarding witness the alleging party, has not been in a situation to add to such his transmitted evidence, any immediate evidence /testimony/ - any information derived from his own knowledge.