date

19 June 1805 Evidence Introd
19 June 1805

Evidence

Introd

Ch. Procedure Technical

''.9. Exceptions Pauper Lists

This plan of policy has been more conspicuously exemplified in the English edition of the technical system than in the French. To the former therefore let us look in preference for the illustration of it.

Among the offences over which for the preservation of society it is most necessary to keep a strict hand, and which at the same time, in spite of every thing that can be done /precaution that can be taken against them/ by legislative vigilance will ever be by far the most common, are the offences /crimes/ of injurious[?] indigence. A great majority, say 19 out of 20 at least 9 out of 10 of that heterogenous mass of first and second rate offences, which from /by/ the punishment /hodge-podge/ /heterogenous mass of/ that has been [...?] to them have been lumped together under the denomination of felonies, have their origin in that situation in life, couple with that motive. This consideration it is that appears to have determined the spirit /tone[?]/ of the mode of procedure appropriated to the case of felony.

A man in whom the desperate [...?] of attempting at the hazard of life to seize the property of another would not /never/ have been found had he possessed as the fruit of his own industry the means of sustenance, would not in general be able to put in an a plea to a Declaration in the Common Pleas or an answer to a Bill in Equity. Accordingly, the every [...?] though hitherto never written maxim that neither Plaintiff nor Defendent, much less both together, shall ever be admitted, till it is impossible they should any longer be kept out, into the presence of a Judge, does not extend to felonies.
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  • Title: [19 June 1805 Evidence Introd]
    Description: 19 June 1805

    Evidence

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    Ch. Procedure technical

    ''.9. Exceptions Pauper List

    At the very earliest stage of the cause, at the very same stage in which the like effect would later place under the natural, and does actually take place under the waiting[?] summary mode /course/ of procedure, the defendant, and his prosecutor, and such witnesses or other witnesses of any, as happen to be at hand /forthcoming/, are introduced together into the presence of a Judge. Each accordingly, at that preparatory meeting called the examination each has the liberty of putting questions to each, the Judge to both or either, for the maxim which leaves it to the desire[?] of the defendant whether he will give an answer, does /is/ not in that stage at least, understood to destroy altogether, howsoever it may impede the liberty of questioning /putting questions/.

    Moreover, by one means or other, indeed or rather to give the short account of it, by so simple a means as the forbearing to extend the art of making business to a case in which there is nothing to be got by making it, quick work, quick by comparison at least is made of the case of felonies: so quick, that instances have not been wanting, in which the three inquiries, (two of them it will be seen somewhat worse than useless) + which take place of course in prosecutions for felony, have been all compressed into the compass of one day. True it is, that notwithstanding this accidental /casual/ dispatch, the mean duration of a prosecution for felony is in the greater part of England 3 months; in some parts in which the suffering of the individual and the prompt execution of the law is in the eye of the law of less moment, six month. (a) But in these three months, and these six months, after deduction of those for which in favourable circumstances a part of a day is sufficient, nothing at all is done. + Of that sort of business, which in case of [...?] which instead of life, a few pounds or a few shillings were at stake is so unnecessary to be made, none is made here, because here, as before observed nothing is to be got by making it +2 about.

    Securities

    (a) These numbers are mathematically correct: as will be found by whoever considers that in some parts of England the Circuit Court is held but once a twelvemonth in most parts six months. In London and Middlesex, the months are reduced to weeks

    + laying out of the setting out of the account that corruption of mind and body and mind, which is not worth thinking about.

    +2 So that Upon the whole [...?] if the time in which nothing /no business/ is done but the work of corruption is rather of the longest the time in which any business is done is short in this branch of technical procedure; viz: not many times as long as that which the business of the same case would have occupied in the natural mode.
  • Title: [1 April 1804 Evidence Forthcomingness]
    Description: 1 April 1804

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    (a) Time after time, upon the spur of this or that particular occurrence - time after time (for to take more than one step at a time or to act upon any thing that can be called a plan is as foreign to an English lawyer as to a savage of New South Wales /Othauti/) time after time, this or that offence has been taken up out of the civil trespasses, and exalted into the class of felonies. In the chaos of English law, and in particular in that dark of it which is clouded /overclouded/ by the word felony, a man neither sees half the good that he does, nor half the mischief. Among the mischief /To the account of mischief/ done, besides the most mischievous of all punishment the punishment f death which no man ought to inflict upon man without eating him /another whom he did not eat/, is the mischief called felony /are of the contents of Pandora's box/, a mass /hodge podge/ of punishment so mixed up and put together that to the lips that are so prompt to chatter /argue/ about it, there never yet belonged and eye that could see to the bottom of it. To the account of good belongs the exposing the cause to the light capable of being thrown upon it by investigatorial procedure. Thus it is on this occasion, as on so many thousand other, good and evil are so mixed up together /amalgamated/, that all solution /separation/ is impossible. A man can not produce a particle /draw forth a drop/ of good, but out comes evil comes out along with it in a stream. A man can scarce do evil, but good comes out along with it, tough perhaps without his thinking of it.

    In no one English law book is any intimation /the slightest intimation any where/ to be found, of the real advantage thus obtained by converting offences /an offence,/ oftentimes offences /an offence/ perhaps till then unpunishable, into felonies /a felony/. If /So far as/ ignorance may here be inferred from silence, an English lawyer when he is manufacturing a trespass into a felony, no more knows what he is doing no more knows that he is giving the cause the benefit of investigatorial procedure, than Monsier Jordan[?] knows that he was talking prose when he was talking prose.
  • Title: [19 June 1805 Evidence Introd]
    Description: 19 June 1805

    Evidence

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    Ch. Procedure technical

    ''.9. Exception - Pauper Lists

    When the class of offence is deducted, (in which homicide, and a few other species of delinquency, in to which rich and poor are alike exposed to fall, were unavoidably /however though/ included,) the remainder are alike open to both classes /conditions in life/.

    It is for the accommodation /accordingly for this case/ of spending opulence /opulent delinquency/ that in addition to the so called civil remedy by action, the so-called criminal remedy by information, the silence[?] remedy as it is called in the language of silence even, is provided. In cases thus circumstanced /of this complexion/, were the prosecutor and defendant compelled or admitted /allowed/ to meet one another at the outset in the presence of the Judge, as in the pauper cases abovementioned, the art of business making, and every pretence for exercising it would be destroyed /put an end to/: accordingly the essential meeting the only sort of audience at which good justice can be done /justice can be properly administered/ /as it ought to be/ is no less carefully excluded in this criminal class, than in the civil class of cases. Writing, accordingly and Motions, work for Attornies, work for Advocates are here manufactured in sufficient quantity: and, in return for the profit upon all this business, facilities for perjury are given to gentlemen (for information causes are gentlemens' causes) facilities as great (it will be seen) as gentlemen can expect a gentleman give with any show of reason /can reasonably expect or decently give/.