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8 April 1805
Evidence
Securities
Ch. Procedure Technical
''. Allegation is evidence
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.
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Title: [15 April 1805 Evidence Securities]Description: 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: [28 Dec r 1806 Scotch Reform To L d]Description: 28 Dec r 1806 Scotch Reform To L d Grenville (7 Resolut. 14 Costs Accidents apart Setting aside those factitious chances given to malâ fide in favour of injustice on the plaintiff's side given to malâ fide plaintiff by the technical system such as the chance of deterring him[?] (by factitious vexation and expence) or cheating him who should have been [...?] from defending himself, or by factitious delay keeping the cause in pendency[?] till his evidence has perished /is given/, a plaintiff can not have had any inducement /motive/ for commencing the cause /instituting his demand/ without a persuasion of its being well founded in point of justice. But to engage a man to resist the demand in the character of defendant - and resist it to the very utmost, no such persuasion is at all necessary. To be already in a state of insolvency? the longer he can stave off compliance with the demand, the longer he continues in the enjoyment of his [...?] affluence to feed[?] and falter upon the enemy. Is he solvent? he protects[?] at any rate (I mean under the advantage given him in that respect by the technical system) he protects at any rate the interest of the monet, and in the mean time takes the benefit of the chapter of accidents: death of the Plff deposition of the Plffs evidence, and so forth. By the bare presumption created /raised/ by bare possession at the time legislators in general hold themselves justified in giving the provisional possession to him who has this plan to plead for it. The presumption created by the decision of a competant Judge - the presumption of it is to be as one[?] that has been created by actual investigation wills a person in that commanding station to answer for it - is /should/ it not /it not be decreed/ so much as equal to the presumption created by mere[?] occupancy on the part of an individual - an individual taken at large? Before and untill decision pronounced in the Court below, the defendant a person taken at large - [...?] to any Court - has had - had of necessity (unless precautionary measures of sufficient promptitude[?] be allowed to be taken in the first instance in[?] the [...?] [...?] application of the Plff), all that [...?] to do whatsoever mischief could be done by the [...?], upon and after due inquiry, both parties are become known to the competant Judge, shall it not be in the power of the Judge to say which of /[...?] in the hands of/ them the thing or[?] person may be trusted with least danger, which the fate /[...?]/ of it awaits the decision of the Court above?
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Title: [6 April 1805 Evidence Securities]Description: 6 April 1805 Evidence Securities Ch. Procedure Technical ''. Allegation is Evidence So far as /concerns/ matter of fact is concerned whatever is or can be said by or on behalf of any party litigant, whether as of his own knowledge, or not as of his own knowledge, is still in its nature a mass or lot of evidence: if as of his own knowledge the more ordinary kind of evidence immediate evidence: if not as of his own knowledge, it is still evidence, though belonging to the head of makeshift, say for example Hearsay evidence. The Plf is a shopkeeper. The defendant he says had goods without paying for them to the value of twenty days labour out of his ship: it is for this that he demands payment It was by the Plff above no other person knowing any thing about the matter that the goods were delivered, and so the Plff says in his allegation says, the evidence thus delivered by the Plff is immediate evidence: if it was by several of the Plff's, the plaintiff not professing to know any thing about the matter but from the report of the servant, the evidence given by the Plff in and by his allegation /the demand[?], whereby he alleges the existence/ of the cause of action, the evidence thus delivered by him is of the nature of makeshift - of Hearsay evidence. in this case what he can not say and say with truth is that he knows the existence of the fact /is known to him/ of his own knowledge: - what he can say, and mendacity apart can say with truth, is - that the existence of the fact though not known by him of his own knowledge, is believed. If not believing it, he says that he believes it, if without oath, he is a liar: if under oath, a perjurer.
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