date

13 Feb 1804 Evidence Securities
13 Feb 1804

Evidence

Securities

Ch. Summary

Engl. Law

Of /In/ these four [...?] Tribunals (Courts of Conscience, Single Purpose[?], Courts Martial and Arbitration Courts) the composition /judicature/ might upon the[?] whole be bad in the extreme, and the system of /exclusive [...?]/ procedure, the natural system - pushed[?] in those Courts, be not the less indisputable.

The connection between the composition of the tribunal and its form of the evidence is altogether accidental. There can be no norm[?] in saying

There is no reason whatsoever. Why the absence of a Jury should prevent the evidence from being extracted in the best mode. Why the evidence should /must/ be extracted in a bad mode /way/, because no Jury is called in to hear it. Reasons might not be altogether wanting why a Jury should be less qualified than a professional Judge to decide upon hear nothing but written evidence: none can be given why a professional lawyer should be less qualified than a Jury for determining upon /judging from/ /hearing/ vivâ voce evidence. From the idea /In the notion/ of saving the time of professional men, clearly purchased /well paid/ as it is, no reason can be drawn /found/ for the difference. the time of a lawyer /dignitary of the law/ with the title of Lord Chief Justice is not thought too great a sacrifice, even with the addition of that of [...?] good men and true, for whose time no compensation at all is made or none that is adequate is made. Why should a thirteenth part of the time be looked upon as too much /too much/, because the functionary whose time it is, is called a chancellor.

On this as in other points what /whatever/ is established is what is most convenient. the existing order of things is that which is most convenient has but the conveniences not to the suitors but to lawyers. [...?] consulted is /had been/ not that of the suitors /suckers/, but that of the lawyers /man of law/. Stripped of the circumstances /[...?] which /of/ the securities for /pledges of its/ trustworthiness are composed, the evidence when in the written form is cleared of a number of incidents which would take up /have taken up so much/ time. As to the Judge, listening or appearing to listen to a bind roll /paper/ /string/ of written depositions or affidavits, all clothed in uniform /the uniform of law language/ he catches up on these occasions such woods /passages/ as the most prominent passages happen to strike him as most prominent, and bestows as little expense of thought /no more thought/ upon the subject than he finds convenient /feels himself disposed to share/. Had evidence on the same subject made its appearance /come before him/ in the dramatic form of vivâ voce examination, the audience would on their part have been bread[?] make, and their attention, all along, and upon the stretch would have commanded /called for/ an equally [...?] attention on the part of the Judge.
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  • Title: [30 Jan y 1805 Evidence Securities]
    Description: 30 Jan y 1805

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    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.

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    ( ) viz: Rules 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17
  • Title: [5 Jan y 1807 Scotch Reform To L d]
    Description: 5 Jan y 1807

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    Nor is this all. In the first instance, as Your Lordship has seen, many causes are incapable of being properly tried, many others incapable of being tried at all, in the presence of /by judgement really/ formed by Juries. In the way of Appeal, there is no sort of question that may not, and with care and propriety find its way to a Jury: no question not even of all those which at present are either not presented to a jury at all, or presented to no purpose.

    In the first instance, the evidence not being capable of being collected in one day /at one sitting/, was collected at divers sittings: not being capable of being collected all in one place, was collected in /at/ divers places. But in the way of Appeal, before a Judge with a Jury, as well as before a Judge without a Jury, being /having been/ already collected together and made into one mass it may be presented in that one mass: if all of it, the testament part of it, in the shape

    of vivâ voce evidence so much the better: if the whole or any part of it incapable of being presented in any better shape than that of vivâ voce evidence heard [...?] and there [...?], (as, Anglicé as[?] depositions) or then epistolatory evidence (as Anglicé as the shape of one Preface[?] to a Bill) than in that best state in which it is to be had.

    Not only so but in cause of the description of that which in English practice, by /the/ reason of the magnitude of the mass of evidence are excluded altogether from the benefit of Jury trial may in this way be let into a participation of it:
  • Title: [10 Aug 1812 Evidence Introd]
    Description: 10 Aug 1812

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    Note

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    Such being the arrangement, and such the nature and order of the matter comprized in it, observe well /how/ the reasoning in which it is grounded /writ/. "Contracts reduced to writing (says he p.5.) are the most sedate and deliberate acts of the mind" and so forth: and "therefore" it is, that with him "written evidence"... has the first place (p.5.) "in the discourses of probability": meaning as it should seem in discourses [..?] on this subject the order of probability: and therefore it is that through "depositions" as he himself observes (p.53.) fall short "viz. in point of probative force) of examinations vivâ voce" yet in the /his/ scale of probative forces he assigns to them a place higher than that assigned by him to unwritten evidence alias parol evidence extracted by examination vivâ voce, as if depositions themselves were not extracted /extracted by any thing [...?]/ by examination vivâ voce: and therefore it is that putting affidavits which are not extracted by examination vivâ voce before depositions which are, for a reason which even according to his own account of it applies only to contracts, amongst so many other things which are not contracts he ranks affidavits and suppositions.

    Among the causes /sources/ of the confusion /darkness/ in which he has contrived to make[?] the whole subject one is the confounding from the very outset the question of authenticity with the question of verity: the question concerning the authenticity of a script with the question concerning the verity of the assertions contained in it. But to blow away dispel any consideration proportion of these clouds would require a volume.