date

30 Jan y 1805 Evidence Securities
30 Jan y 1805

Evidence

Securities

Ch. Engl. Proleg.

The rules by /in/ which the [...?] [...?] ultra[?] of perfection in this line stands expressed, have above been brought to view. the rules claiming the performer[?] in favour of vivâ voce examination expressive of the plan to be observed in relation to it. ( ) These rules, in so far as concerns /as to/ the fundamental points of the plan as to every thing but a few /here and there/ incidental points of imperfection easily corrected, are /constitute/ /are no more than a/ the exact delineation /picture/ /correct copy/ of that which for shortness may be termed the English System.

Custom, produced and supported by a mixture of professional interest and party[?] prejudice, would find an equally short and more particular mode of expressing the characteristic features of this system by looking /seeking/ for a denomination for it in the Trial by Jury, and regarding /considering/ it as an inseparable accompaniment of that mode of judicature. But the plain truth of the case is, (examples in abundance will manifest it so to be) is that its connection with the species of men's[?] internal so comprised is purely accidental, and that a much more advantageous /perfect/ opinion of it may be seen in those affectedly disposed but most useful of all non-penal tribunal, stated Courts of Inquests but more commonly Courts of Conscience.

Note

( ) viz: Rules 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17
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    ''.1

    In marking out the course /in some of its proudest lines in England/ /in its various /[...?]/ situations/ taken under the English System /of English origin/ in relation to the operations in question - viz: the receipt and extraction of testimony, I shall begin with that mode of procedure which either coincides exactly or at least comes nearest to a coincidence with the patterns exhibited by the above rules. I shall then exhibit in their order the several ulterior variations, placing first those in which the aberration is least important, and bringing successively to view the instances in which it is wider and wider, the mode pursued more and more vitious /defective abundant in imperfection/, and the means employed worse and worse adapted more and more incongruous and unconducive with reference to the professed end - the avoidance of mis-decision - the fulfilment of the predictions delivered in each case by the substantive branch of the law: so in other words the due administration of genuine and substantial justice.

    Under an arrangement thus described, of the two grand /main/ divisions of existing /the system of established/ procedure, the Summary and the regular the former can not fail of taking the precedence /occupying the first place/: that which having had justice for its end /the real end of its institution/, has been /will/ suffered to accommodate itself. and actually has accommodated and does accommodate itself with almost compleat success, to that its only legitimate end seats itself of course /takes[?] its station/ in the first place: after that comes the mode /system of arrangements/ which having had authorized[?] plunder for its object, owed the shares /privileged/ in the spoil for its authors, the due administration of justice for its collateral and accidental, though happily in no small /to a certain inconsiderable/ degree its eventual effect, has been but too happily adapted to its not professed /named/ but not the less steadily pursued sinister end.
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    ''.1.

    The constitutionalist /honest but ill-deserving [...?]/ /The professional lawyer, with his dupes[?]/, whose views are bounded by the circle in which Whig prejudices and affections are inclosed - will scarcely without a mixt emotion of surprize and horror behold the object of their idolatry - the second Trial by Jury thus thrown into the back ground. In The emotion thus excited /raised/ /called[?] along[?] will put[?] a stimulus/ will be /operates as/ a stimulus by which their attention will be pointed to the subject, and rendered above to any misrepresentation /misrepresentation/ to the prejudice of the favourite system - should any thing of that sort be discoverable /to be found/.
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    ''.2 Bad Procedure Causes

    That the honest reader, and more especially the reader whose social affections are yet warm, who /whose uncorrupt /susceptible/ mind/ is not yet past the swarm[?] of public virtue whose judgment /[...?]/ has not yet been led captive /enchained/ by the force of professional interest and personal ambition - may not be altogether without a clue of /psychological/ the psychological hand to facilitate his travels /guide his footsteps/ through the labyrinth of error /misgovernment/ about to open to his view, a few leading points /[...?]/ /facts/ shall in the character of causes be just mentioned without being at all insisted upon in this place. These are

    1. The professional /relative/ interests and situations of the class of persons in whose operations /to whose agency/ the system of procedure as well as the greater part of the substantive system of law has its rise - a set of workmen whose interest it is to make the work as bad as the ignorance and patience[?] of the employers will suffer it to be.

    2. In respect of the condition of the main body of the laws /government/, the want /utter absence/ of that responsibility which attaches upon particular functionaries in respect of particular branches, such as those of finance, political economy in general, and the administration of military [...?] and other channels of national defence.

    3. The total absence of encouragement, coupled with the abundance of positive discouragement under which the most important of arts and sciences and arts labours, in comparison of all others not excepting the most trifling and indifferent /the most trifling not excepted/