date

18 June 1805 Evidence Introd
18 June 1805

Evidence

Introd

Ch. Procedure Technical

''.7. Writing abused

Among the essential points of the technical system one that we have seen is the abuse of the art of writing. On this head a distinction requires to be made: for in the instance /regard to/ of this master art, on this as on so many other grounds, thin and delicate /slight/ are the particulars by which the abuse is divided from the use.

The purposes /occasions/ the application of it to which comes under the head of use will be spoken of at large in the body of this work. + These are the registration of the few operations and instruments for which the natural system produces in the several cases a genuine demand: and where the expence is warranted by the importance of the cause or by the anxiety of the party who is willing to defray it, the registration of the evidence. meaning by evidence such information, whether it came from the parties, or from extraneous witnesses, such information for the truth /correctness/ of which such securities as are requisite, and as such are afforded by the natural system of procedure, are /have been/ applied.

The abuse consists in the fabricating and registration of such /these/ /whatever/ useless instruments and operations and instruments as the technical system may have happened to superadd or substitute to the few that would be called for and exhibited under the natural system: together with such information true or false but for the verity of which no security is employed /applied/, such information true or false, as both parties either /purely/ from the obligation inferred[?] upon them by the regulation of the system, partly from /by/ the sinister policy of that one of the parties who is conscious of being in the wrong, have been led to furnish /exhibit/.

Under the natural system whatever[?] writing is employed about the evidence succeeds /follows/ /comes after/ oral delivery of the testimony. and in neither more nor less than that testimony itself consigned to their [...?] under the technical system it either precedes /comes between or is substituted/ and is super[?] - [...?] [...?] added to the oral testimony, it also is substituted to it.

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    Accordingly, for a long time down to a considerably advanced period of Roman history, the presence of the parties, of the plff at least was indispensable. At one time justice was the object, and then the Judge would + do nothing unless the parties were present: in process of time the profit of trade became the object: and then he would not hear them so much as suffer them to come into his presence /in his presence/.
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    ''.7. Writing abuse

    In /To/ /Without/ the abuse of writing we have /may be seen/ the means of bringing about three /essential/ /the suitor could never have been burthened with that prodigious load of expence vexation and delay of which the exhibition of/ instruments of mutual altercation succeeding one another at intervals more or less distinct, in the particular /immediate/ efficient cause. Where an allegation /a mass of allegations/ is committed to writing, and each party is under an obligation or at liberty to answer the mass of allegations exhibited by the other, an interval of time between the exhibition of one such instrument, and the exhibition of another such instrument can not be refused. It could not, even were hired assistants out of the question: much more where the necessity of employing assistants of that description, especially if of different classes /ranks/, one believed another, has been contrived to be created. Under the system, of which vivâ voce examination as well of parties in the presence of each other as of witnesses (extraneous witnesses wherever present) forms an essential /a distinctive/ feature, all such altercations would naturally, and, saving accidental ignorance or oversights, necessarily, come out at once; come out at the first meeting.

    Before this abuse of writing, whatever allegations, relevant or irrelevant, true or false, came out in the course of the cause, must have been exhibited, by the parties, or, in the accidental case of inability to attend, by their gratuitous proxies: for the assistance /interference/ /agency/ of professional and hired agents /assistants/, not even in the character of assistants, much less in the character of proxies, could there have been any real need felt, or plausible appearance of necessity created. In the presence of the party, even where he is unfortunate enough to be obliged to purchase the treacherous service of a [...?] assistant, the art of making business can never be carried to any extent, approaching to that to which it is carried of course, when that check to professional treachery is removed.
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    ''.6. Expence.

    Note (a)

    (a) To relieve the strain upon the conception, any specification, how incompleat soever is better than none. There follows a list of some of the principal incidents most apt to operate in the character of sources of juridical expence. In any given individual instance How many and which of them shall thus operate depends in a considerable degree upon the individual circumstances of each individual suit. As to expences purely factitious, they are susceptible of whatever degree of regularity that the authors may be pleased to give them.

    1. Expences incident to attendance: - on officers of justice superior or subordinate - on witnesses - on the party's own professional assistants, if he has any, on adverse parties and their assistants.+ See above under the head of Vexation

    2. Expences incident to journeys for the purpose of such scarce[?] attendences[?].

    3. Expence incident to the conveyence of real or written evidence. This answers[?] to journeys on the part of witnesses.

    4. Expences incident to the imitative representation of a source of real evidence, where the production of the original is not exacted /producible/.++

    5. Expences incident to the transcription of written evidence, wherever any such substitution happens[?] actually to be admitted /allowed/. Under transcription are included translation, abstraction[?], abbreviation methodization or ingestion[?], and the like.+++

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    7. Registration of the evidence,++++ and other instruments exhibited in the course of the cause.

    8. Registration of the operations performed in the course of the cause by the parties and other persons concerned in the cause.

    + See

    ++ See Forthcomingness - Ch.

    +++ See Transcriptional

    ++++ See [...?], [...?] [...?]