date

30 Jan y 1805 Evidence Ch.
30 Jan y 1805

Evidence

Ch. Engl. Proleg.

''.1

In giving to the system the denomination of the English System, I had no other view than that of applying to that purpose a notorious and simple matter of fact. National attachment had no share in the bringing to view a matter of fact which will /may/ be seen to afford so little cause for national exultation /pride/ /self esteem/.

The plain truth is that in this part of the system of established procedure, nothing more is to be seen than a fragment /a fragment preserved rather by accident rather than degree[?] /fortune rather than by wisdom//, a pretious[?] fragment of the system of natural procedure - of domestic procedure of that mode of procedure which common sense dictated from the first still continues and never will cease to dictate /present/ as the plan proper to be pursued, and which accordingly is pursued in the bosom of every private family in that sphere of interest which Nature has set up /established/ in the district /demesne/ of every family, by the head of the family, as often as occasion calls for the exercise of the unpleasant but sometimes necessary function of sitting in judgment on the conduct of any of its members /subordinates/. If the characteristic features of it are still perceived in the Trial by Jury /procedure/ in that system in the construction of which, together with the abuses with which it is covered, the cult[?] of lawyer craft have had so large a share, it may be sure in much better prosecution in the procedure of these tribunals, within the /whose/ pursuits of which the professional man of law has been unable or has disdained to penetrate /intrude himself/.
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    Description: 30 Jan y 1805

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    ''.1

    If the use made in England of the English System of procedure in respect to evidence had had English wisdom for its origin, that same wisdom would have bestowed on it an universally extending application without any other exceptions than what were suggested by so many specific and appropriate reasons: in a word this superior wisdom, the existence of which is thus assured[?] their [...?] if in the way of supposition would have operated with the same[?] regularity and comprehension /regular and comprehensive efficacy/ as the really existing inferior wisdom from which the Roman System took its birth. But the multiplied, the diversified, and in every instance groundless deviations /aberrations/ made from this ever conspicuous and ever acknowledged model /pattern/ of perfection, demonstrate but too plainly that if to any thing that can be seen be called wisdom /in any sense the national wisdom, it is not in any sense /degree// it is not to professional wisdom that it owes its birth, and that whatever reflection and industry has been bestowed upon it by men of law, has been occupied /employed/, almost without exception not in the preservation and improving /preserving and improving/ it, but in defaming it in injuring it, and rendering it in every instance less conducive /adapted/ to its professed and only proper end.
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    Description: 30 Jan y 1805

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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.
  • Title: [7 May 1805 Evidence Introd]
    Description: 7 May 1805

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    ''.6. Modification necessary

    Procedure 1. Powers. 2 [...?]

    + Ch. or ''. Modification necessary to fit /adapt/ the domestic System to the purposes of political judicature.

    On considering the domestic system of procedure

    On considering with a view to its application to the exigencies /field of action/ of a political community the course /system/ of judicature pursued /observed/ in a family two considerations /reflections/ /[...?]/ /observations/ strike at once upon the mind: how beneficial it would be /it would be in the highest degree/ could /that/ any such extended application should take place; and how /that/ impracticable /impossible/ it is that, without considerable addition /modifications/ and alterations, it should be enabled to fulfil the main ends /be [...?] to the fulfilment of the aggregate mass of the ends/ of justice.

    Vexation, unnecessary or preponderant, none: expence, absolutely none: delay, none but what is absolutely necessary to the establishment of the justice of the demand /classes/ of just, of the fact of its not being done, of its injustice if not done. This much as to the collateral incidental ends of judicature and as to the [...?] ends, with their counterparts the collateral ultimate ends, if the fulfilment of those ends is, in respect of its certainty, necessarily subjected to those contingencies which have their rest in psychological [...?], at any rate it finds out in its every [...?] fictitious /artificial/ laws set up in such a manner as to render it impossible.

    Modifications the family system certainly requires to have undergone, in it can be rendered subservient /have been adapted/ to political purposes: but the modification /when as [...?] about,/ will be found to be rather in denomination than /names than/ in substance, the changes in denomination amounting to little more than what results of necessity from the enlargement of the field of action, from the encreased magnitude of the scale.