date

5 July 1804 Procedure & Evidence
5 July 1804

Procedure & Evidence

Evils

2d order

7 or 1. vexation 2. to defendant

 Vexation to the defendant

I Natural causes

1 to 7 The same as in a case of vexation to the demandant

8. Arrangements necessary to be taken for the securing the justiciability of the defendant himself for example imprisonment for safe custody, obligation to find security, whether by ----ation of property, or by fide jussors[?] - friends wantonly[?] pledging their property for the performance of the engagement.

II Factitious causes, negative, and positive

The same as in the case of vexation to demandant.

Intricacy

In a current parallel to that of expence, vexation in other shapes. For - not to dwell on labour and loss of time - to what degree must not the pressure upon the mind of the traveller be enhanced, by the observation of the darkness in which the whole league of the road /in its whole length/ with the issue at the end of it, and his fate which hangs upon it /that issue/ is involved?

This darkness will not fail to appear more and more gloomy, and his confidence in the result, weaker /fainter/ and weaker /more and more tottering/ /less and less steady/, the more intimate his acquaintance with this track, the more correct his view of it.
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    Description: 6 June 1804

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    These matters being urged on both sides, shall the decision be pronounced by the Judge on the spot, or shall it be reserved for ulterior hearings one or more? - Yes or no: according as the cause is or is not ripe for it. What the circumstances are on which its maturity will depend /by which its maturity is capable of being influenced/, will be seen in another chapter.

    Meantime thus much may be mentioned already, as one of the practical advantages that would result from the restoration of the original, natural, and only honest and /or/ rational system /plan/ of procedure: the extirpation of that species of licensed /sanctioned/ depredation which in English law goes by the name of Special Pleading: the artificial protraction of the debate by means of written instruments, composed of allegation without evidence, mutually delivered by the professional agents of the parties, at distant intervals, without the cognizance as well as [...?] of the presence of the Judge. But of this also in another place.
  • Title: [18 May 1805 Evidence Introd]
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    It is evident that when the suit is thus ill-grounded, whether its groundlessness be or not present to the demandant's mind - in other words whether it be or not on his part a mala fide suit, makes, with reference to the vexation and expence inflicted by it on the defendant, little or no difference. The mischief of the first order is therefore not encreased, not affected, by the absence or presence of this mala fides - of this criminal consciousness, of mala fides. Nor to the mischief of the 2d order: the danger and the alarm liable to issue from that source. That suits accompanied with this circumstance should exist in multitudes is a state of things, which it will be seen can not take place without some flagrant and radical defect in the texture of the law to wit /more especially if not exclusively/ in the system of procedure. In the constitution /-----/ of this system there is a somewhat or other /exists by the supposition --- --------/ which affords to the wrongdoer an assurance of success, even to him who in his own mind is conscious of being so. This is as much as to say which affords to him who has an interest in so doing a means, in appearance at least sufficiently assured, of contravening for his own advantage - of contravening in an indefinite number of instances one or other of the ends /the principal ends/ of justice: the demandant, where the mala fides is on his side, the defendant, where it is /exists/ on the side and part of the defendant.
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    Description: 19 May 1805

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