date

30 Jan y 1805 Evidence Securities
30 Jan y 1805

Evidence

Securities

Ch. Engl. Proleg.

''.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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    ''.12. Exemplified in Summary

    In all these Courts the natural, the domestic system /mode/ of procedure, not having been forbidden /prohibited by superior powers/, is pursued /[...?] places/ of course. They may be considered as so many asylums, so many little strongholds /fortresses/, in which justice has still been able to maintain herself /her ground/, after having been driven out of all the others /rest/ /driven out of all others/.

    Note (a)

    In all these several examples, the constitution of the Court is one point /thing/, the mode of procedure observed in it, another. In all these instances, to compare them one with another /if they be compared/ the constitution of the Court is various /different/. In each it may be better or worse adapted to the particular purpose: but /but in all these instances/ the mode /system/ of procedure pursued by /in/ them, is in principle the same. In all of them it includes /possesses/ the essential features above described /delineated/ /marked out/. The /In this or that instance, the/ constitution of the Court might be more less happily /[...?]/ composed: and if any imperfection in the /that/ constitution injustice, in one shape or other might be the occasional /casual/ result. But be the constitution of these Courts ever so imperfect, the mode of procedure pursued in them is not the less perfect. At any rate in the system /[.../] and [...?] of that system/ of procedure there is nothing to make injustice in any case certain, justice impossible: a property which will be found peculiar to them in contradistinction to the regular Courts.

    The contrast /[...?]/ is in no small degree a striking one. /A striking contrast if ever there was one!/ A circumstance common to all these Courts - a very simple circumstance furnishes a clue, which diligently[?] pursued will lead /afford/ to the solution of every difficulty. In those Courts there are no Lawyers. The Judges who sit in them are not lawyers. In these Courts, the hostile and malicious assortment of professional lawyers, law-agents, is not forced upon the suitors.
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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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    '. Opposite Evils

    In the instance of each of these several ends, the attainment /fulfilment/ /accomplishment/ of it is a good, the non-attainment, non-fulfilment, non-accomplishment of it is an evil. General direct end of the system of procedure, giving effect to of the /giving fulfilment/ arrangements, predictions and engagements contained in the substantive branch of the law. Evil corresponding and opposite to that end - Inefficiency, non[?]-fulfilment of those same arrangements, predictions, engagements.

    First particular end - first branch of /Particular direct end the first: branch the first of/ the General direct end of the System of procedure - Administration of punishment, where due. Evil corresponding and opposite to this end - Non-administration of punishment where due.

    Second particular direct end; second branch of the General direct end of the System of procedure - Collation of rights, where due. Evil corresponding and opposite to this end - Non-collation of rights, where due. Third particular direct end; third branch of the General direct end of the system of procedure - Administration of satisfaction where due. Evil corresponding and opposite to this end - Non-administration of satisfaction where due. Let not this nomenclature be considered /regarded/ as so much useless sound: ample use will be /continual use will be/ seen[?] to made of it as we advance.