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19 April 1805
Evidence
Securities
Ch. Procedure Technical
''. Allegation is Evidence
Thus then stands the matter with regard to the rule Audi alterem partem. To a certain degree /In certain respects /purposes/ /On certain occasions/, it is the interest of the man of law, that it be obscured; and to /on/ these it has accordingly been observed accordingly. To /In/ others it is the interest of the man of law that it should not be observed: and on that it has been violated /is violated/ compleatly abrogated So far as it is his interest that it be observed, it is so on a double account: were it violated /not observed/ to all purposes, the people might not be quite so blind /be dissatisfied/ to the defects /abuses/ of the system as they are. The people might be more or less dissatisfied: and moreover what is a great deal worse /what would be a much more serious mischief/ /[...?] [...?] [...?]/ more than half of the profit of /extractable from/ every suit would be lost.
Observed? did I say? - But in what sense is it ever /that it is/ observed not /never/ in a true sense, only /never but/ in a fictitious one. Under the name of party who is it that is heard? Not the party himself on either side: not the party himself, but his deputy, or rather his deputy's deputy: not the party himself, but a deputy's deputy whom he is forced /compelled/ to employ, on pain of not being heard in any sense. And for whose sake then he is heard even in this fictitious sense? for the sake of the deputy and the deputy's deputy and their connections /confederates, and not his:/ /[...?]/: for if it were for his own sake, it would be in his own person, that he would be heard.
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Title: [23 Mar. 1805 Evidence Securities]Description: 23 Mar. 1805 Evidence Securities Ch. Procedure Technical ''. Parties unheard To violate the rule [...?] alteram partem - to refuse a hearing to either side, is mentioned in a proverbial way among men in general, but more especially among men of law not merely of iniquity /as the ultimate point of iniquity: - and/ but of that sort of iniquity, of which in the established systems an example is hardly to be found. Of this partial and incompleat /inconsummate/ iniquity examples are indeed but rare /not frequent/. But if the like iniquity doubled, doubled by being repeated upon both parties, in the established system so far are the examples from being rare, that the rare case is the finding[?] any here and there/ exceptions to the rule. To refuse a hearing to either party from first to last, by proxy /to his professional/ as well as in person /agents as well as himself/ is a sort of iniquity never practiced by men /the man/ of law. Why? because nothing would be to be got, on the contrary about a [...?] /a portion/ of the people would be lost by it. But the double of this iniquity. this refusing /refusal/ to hear so much as the agent of the party till the last stage, coupled with the refusal to hear the party himself at any stage, is an iniquity that is but too extensively in practice? - Why? because there is every thing /so much/ to be got by it: because in comparison of what is [...?] got by means of it what would be to be got without it is as nothing /little worth/.
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Title: [8 April 1805 Evidence Securities]Description: 8 April 1805 Evidence Securities Ch. Procedure Technical ''. Allegation is Evidence This rule audi alterem partem[?] [...?] is commonly regarded /spoken/ as one /among/ the deepest laid parts of the foundations of justice. The violation of it the refusal to hear on either side an arrangement by which the advantage of a hearing is refused to either side, is commonly regarded as one of the most flagrant, if not exclusively the most flagrant, of all violations of justice /the modifications /forms/ of injustice/. Examined closely /more narrowly/ it will however be found to be no more than a sort of minor and subordinate /narrower/ injustice, included in that mode /feature/ of procedure by which the technical system is distinguished from the natural. After the one side /plaintiff/ has been heard, the other /defendant/ should be heard likewise - why? because should the plaintiff's information /evidence furnished by the plaintiff/ be false, there is nothing /nobody/ to correct it: should it be incompleat, there is nobody to compleat it: and in either case /event/, deception on the part of the Judge, and from /through/ deception misdecision may be the certain consequence. True: in all this there is nothing but what may be, and is indeed but too apt to be. Still however in this case misdecision is /would be/ far from certain, and were the error /practice/ universal would be far from constant. It may be, on the plaintiff's side there would be nothing but truth: it is not natural, because it is not needful, at least when the amount of /value in/ demand is limited that there should be any thing but truth, or that any material part of the truth should be withholden, where the plaintiff happens to be in the right; a state of things which, through causes foreign to the present purpose, may be expected to be verified in perhaps nineteen instances out of twenty instances. Again: though the information furnished by the plaintiff should be at [...?] incompleat and false deception on the part of the Judge is by no means the certain or the constant consequence. It may be that of what is false, he derives the falsity: and from what is furnished, though incompleat, his good understanding, in the way of inference, supplies the rest. But,
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Title: [24 April 1805 Evidence Ends]Description: 24 April 1805 Evidence Ends Ch. Conflict To squeeze every part of the earth that was not England into a space /parish/ of two or three minutes of a degree square in England had cost these[?] scientific /artists/ no more than it does the Chinese to squeeze into one of the corners of a square map every part of the earth that is not China; but though the compression /condensation/ had so effectually been performed for the /certain/ purposes, it had never happened to be performed for this purpose. In the instance of the conflict /conflict/ between the direct ends and the ultimate collateral ends, the opposition is not thus irreconcilable /no such incompatibility takes place/. The /positive/ direct end may be provided for, and the negative direct end not neglected: the whole system of procedure has for its main object the reconciliation of these contending pursuits /objects/: the attainment of the one positive end without prejudice to the negative end. Were the positive end the only one, neither witnesses or parties would be heard but one side only: it is for the sake of /with a view to/ the negative end that they are heard so far as they are heard + also on the other side. + Infra
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