058-411.xml

Title: [30 March 1805 Evidence Ch.]

Description: 30 March 1805

Evidence

Ch. English Summary

''.3. Courts Martial

III Summary Procedure - N o 3. Procedure as in Courts Martial.

Land Military and Naval -

In the mode of enquiry pursued in these Courts there is not much to distinguish from the work pursued in the two preceding instances: but what there is is to its advantage.

In the Courts of Conscience or Requests, the evidence is not committed to writing: by accident, yes: but to do so, is not to any particular matter of express duty. In Courts Martial the evidence is constantly committed to writing: to execute this important task, is the duty /business/ of the presiding Judge, whose title - (importing a strange cause[?] of incompatible functions /duties/ as) Judge Advocate.

In the Courts constituted by Justices of Peace acting singly or in number out of Sessions, the mode of enquiry is, liable to be more or less obstructed by the technical rules of evidence. Why? because in one way or another in the way of non-penal revision, or on the occasion of a penal charge, the conduct of these subordinate magistrates is liable to be called in question by their learned superiors in the Kings Bench, by whom it will be judged of by those pernicious rules. The proceedings of Courts Martial not being in either way subject to be called in question in the King's Bench, justice in those Courts is not blasted by the baneful influence of those rules.

058-408.xml

Title: [31 Jan y 1805 Evidence Ch.]

Description: 31 Jan y 1805

Evidence

Ch. Engl. Summary

''.2. Justices

One point however there is in which this modification of summary procedure has been found to deviate /does deviate/ from the line of perfection, and which does belong to the present head. It is pregnant with instruction, to any eye that can endure the look at it. Here too the cause of the aberration is to be found, plainly and exclusively to be found in the baneful influence of regular /technical/ procedure.

Among the securities against falshood and mis-decision that which is afforded by the registration of the evidence has been noticed in its place. But of this operation what were the uses? One main use was the confining each subordinate judge within the scale of duty by the apprehension of the censure[?] from the superintending eye of a superior in office. In the arrangement thus proposed thus held up to view in the character of a proper one, his things were necessarily though tacitly supposed: that a system /line/ /course/ of procedure to be observed by /conformed be/ the subordinate had been chalked out for him; and that that course was a rational one, adapted to the several direct and collateral ends of justice. Unfortunately in English law neither of these conditions has ever been fulfilled. By making of laws[?] there is nothing at all to be got, at least by lawyers: by banishing as for the breach of laws, where laws are supposed to have been broken though [...?] were ever made /have as yet been made/, there is a great deal to be got, and to be got by lawyers. When guided by the light of natural justice a country gentleman /an unpaid Judge/, along with the purest intentions in the character of a Justice of peace, in execution of the same branch of the substantive law committed to his charge, had decided accordingly, entering upon paper and thus making known to all who chose to know, the grounds of his decision in respect of fact

058-276.xml

Title: [8 April 1805 Evidence Securities]

Description: 8 April 1805

Evidence

Securities

Ch. Procedure Natural

'.12. Exemplified a Summary[?]

When perfection is /no name is/ spoken of, at least as being the result of human agency, then the mind[?] prepares itself of course for a journey to the region of non-entities: it looks to /for/ /figures to itself/ a state of things which either never existed at all, or has long ceased to exist, and at any rate neither will nor can exist in time future: [...?] the golden age, the age where Man received life, from the work of Prometheus, from the song of [...?] as from the chisel of [...?]/

Learned or unlearned, what /how/ will the [...?] say to himself at hearing /what will a man's [...?] be when he reads/, that in this most difficult department /branch/ of the most difficult science, the image of perfection is /examples of perfection are/ already and every where, before his eyes!

Happily for mankind, exemplifications of this perfection, though thinly scattered, and cramped in their extent, are still to be found every where. With all /Mark of/ their industry, backed by all their power, lawyers have in no country been able to obliterate altogether the footsteps of justice.

In the jurisprudence of every country you find a distinction applied /applying itself/ to modes of procedure, and expressed by some such terms as regular and summary. Under the head of summary, look for an exemplification of the natural system of procedure as above described. To this head belong for example in ci-[...?] France, the mode in use in what are called the Consular Courts.

In England - 1. The Courts held by Justices of Peace, acting singly, or though in number of one of [...?]. 2. Courts Martial. 3. Courts called Courts of Conscience for the recovery of small debts. 4. courts composed of Arbitrators acting under /with/ powers given by consent of parties under the authority of an Act of Parliament. +

+ V.b. 3. Ch.

 Add. 1. [...?] [...?].

2. Branch[?] Constitution Courts.