date

16 July 1804 Procedure & Evidence
16 July 1804

Procedure & Evidence

Evils causes

ch 5th Order

' 2. Delay

8. Time for receiving evidence thrown back to well after the time expendable in allegations without proof has been exhausted; instead of returning allegations and proof at the same instant; a union /a junction/ which takes place of itself in so far as the allegation of either party, with or without oath, is received as evidence.

9. In the examination of a party in the character of a witness, questions exhibited in writing, and put altogether into one instrument, answers into another, with intervals of weeks or months between one such instrument and another: instruments of that sort capable of being made to succeed one another, at the pleasure of a mala fide suitor, in causes of an indefinite length: although evidence from the same source might be extracted - the whole mass of it in one sitting in the compass of four hours or minutes, by viva voce examination - a mode universally acknowledged to be in every respect preferable.

10. The same sort of examination, if carried on reciprocally at the instance of the party first examined, made the business of a distinct cause, not commencing perhaps until after the conclusion of the former, although the reciprocal examinations might with encreased advantage be taken at one and the same sitting as above.

11. Arrangements in order of which, on the occasion of one and the same demand, at any period of a suit carried on in the less dilatory mode, a suit in the superlatively dilatory mode is made to intervene and destroy the use of whatever has been done in the course of the first suit: leaving to it no other effect than the production of so much useless delay vexation and expence: one sort of court carefully abstaining from the extraction of what is universally acknowledged to be, in all cases where /in which/ it is admitted the best evidence, as if for fear of infringing the monopoly possessed by the other sort of court in the profit to be made by the extraction of that sort of evidence.
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  • Title: [24 May 1804 B, Evidence]
    Description: 24 May 1804

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    § 2. Extraction of personal evidence - Party's defendant's evidence.

    In the case of personal evidence - in that case centers all the difficulty: in this case it is but true that the legislator will find, be his sagacity what it may, a most perplexing choice of difficulties.

    By One fundamental division /distinction/, the distinction between the evidence of a party, and the evidence of an extraneous witness, a considerable light will be thrown upon the subject in the first instance, and hence part of the difficulty will be seen[?] to be cleared away.

    First let it be the evidence of the defendant, and the cause a non-penal one - Examine him - will he not speak? no matter: let him lose his cause. Reasons already given under another head. + By his refusal to answer he escapes furnishing direct evidence: but by the same negative act, actually he furnishes evidence: evidence which though but circumstantial, is as condusive as any direct evidence would be in the same case. In the case of the plaintiff, there is as little difficulty, or rather, if possible, still less: the falsity of the allegations on which his claim is founded is virtually acknowledged by himself.

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  • Title: [16 July 1804 Procedure & Evidence]
    Description: 16 July 1804

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    ch 5th Order

    ' 2. Delay

    4. Arrangements importing refusal on the part of the judge, to take the leading step in the natural mode /course/ of enquiry: viz: when both parties are forthcoming, securing their personal attendance in his presence and in the presence of each other, in the first instance: particular cases excepted, in which personal attendance is rendered impracticable by distance, or by the advantage gained in respect of accordance of wrongful decision, delay, expence and vexation for want of personal attendance would not be equal to the evils of vexation and expence by personal attendance.

    4. Arrangements importing refusal, on the part of the judge, to act as such, till almost the conclusion of the cause - to compel or so much as admitt the apparition /attendance/ of the parties in his presence, and in the presence of each other, at the commencement.

    5. In the case of arrest, consignment of the party arrested - not into the presence and power of the judge, but into the power of another sort of Officer (the sheriff) who although the reason for detention should be found wanting, has no power to liberate.

    6. Arrangements in consequence of which the reciprocal counter-allegations exhibited by the parties, are committed in the first instance to writing in the first, and instance each, each set in a separate instrument, the several instruments succeeding one another, at distant intervals, of days, weeks, or months, without the cognizance of the judge, instead of being exhibited viva voce, all together on the same day, in his presence.

    7. Those allegations received without the sanction of an oath, or other check on mendacity, than costs of suit, and that not in all cases: however the power of delay put into the hands of a mala fide suitor, as often as the benefit of delay is regarded as worth purchasing at this price.
  • Title: [10 July 1804 Procedure & Evidence]
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    This consideration /observation/ might operate in vindication of the uncertainty, dilatoriness, vexatiousness, and expenciveness of the English system /established systems/ of procedure, if in these systems the mass of those evils were in any tolerably exact proportion to the complexity of the suit, as produced by the above causes. But, look at the actual /established/ state of things, no such proportion nor anything like it will be discernible.

    The only appearance and that altogether a faint one that can be discovered of any thing like the observance of any such proposition, is what is /may be found/ discoverable in the law, confused and indeterminate as it is in so great a part of its extent, that masters[?] the bounds between the jurisdiction of the courts called Common Law Courts and the Courts called Courts of Equity. In the Courts of Equity the mode of proceeding is more dilatory than is in the Common Law Courts, and it is in these Equity Courts that causes are carried on of a nature more complex than any that are carried on in the Common Law Courts. In this observation, general and indeterminate as it is, is included everything that can be said in affirmance of a proposition between the intricacy of the system of procedure and the natural complexity of the cause.