date

21 April 1804 Procedure. Evidence
21 April 1804

Procedure. Evidence

The distinction between a cause capable of being dispatched by the single course of procedure, and a cause requiring a complex course of procedure, depends /turns/ not upon the general /characteristic/ [...?] of the cause, but upon circumstances purely collateral and accidental: and upon its belonging of a purely penal[?], purely non penal /distributive/, or compound nature: nor upon its belonging to this or that division or subdivision of any one of these three branches. Some sorts of causes are more apt to ferment[?] a demand for complex procedure than some others: but if there be any that are in their characteristic nature so complex as never in no instance to be capable of being divided consistently with justice in the course of a single hearing, there are not many[?] /is not one/ so simple as are to be capable upon occasion of prescribing an adequate demand for a course of procedure more or less complex.

The distinction is an object of fundamental and cardinal importance: susceptible of being applied, and to an all comprehensive[?] extent, to legislative practice. Every system of adj...tive[?] law procedure which applies the same course of procedure without distraction to causes of both descriptions which consequently throws upon causes susceptible /capable/ of being determined in the recovering a determination, simple[?] summary course, the vexation, expense and delay attached to the complex mode /course/ of procedure, is prefigured[?] with so much collateral inconvenience - and which being upon the very face of it as then described, avoidable without prejudice to the direct justice of the case, becomes thereby /[...?] vent thereby to be/ so much collateral injustice.
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  • Title: [21 April 1804 [...?] Mode Summary]
    Description: 21 April 1804

    [...?] Mode

    Summary

    In perhaps every established system of adj...tive[?] law, a distinction /decision[?]/ glancing as the above, and presenting, upon the face of the appellations bestowed on the con[...?] branches, the appearance of an approach to it /obscure perception of it/, would I am inclined to think be found. You find it in the systems derived from the Roman Law in German Law for instance and in French[?]. You find it in the English. Regular procedure: summary procedure, these are the appellations employed: but upon the very face of this description /verbal covering/, symptoms may be discovered of the injustice that lurks beneath. It imparts[?] /[...?]/conveys the idea/ a contradiction a repugnancy between[?] the summary mode and the regular: as if there were a natural and necessary /universal/ incompatability between dispatch and regularity: between the avoidance of collateral injustice, and the disp...ation[?] /accomplishment/ of direct justice. If summary /If decided in a summary way, a cause/, it can not be accordence /decided/ to rule: if according to /decided/ rule, it can not be decided with dispatch.

    Summary procedure /justice/ not according to /proceeding/ rule? what should hinder it? Is there one sort of cause more than another in which neither regulations nor instruction, are either necessary or conducive to the conferring the course of judication within /to/ the path of justice?

    Judication proceeding according to rule not capable of being summary? what should hinder it? The cases - understand the individual cases - are indeed but too numerous, in which dispatch - the degree of dispatch capable of being given[?] in other cases without prejudice to justice - the direct justice of the case - could not be given, without the production of that capital[?][ inconvenience: but cases individual cases are not wanting in which the maximum of dispatch is favourable to the strictest justice. /the very course that would be indicated /prescribed/ by an attention, though it was an exclusive use, to the interests of direct justice.
  • Title: [21 April 1804 Evidence 1 o]
    Description: 21 April 1804

    Evidence

    1 o Enquiry modes

    The system of procedure may be divided in the first place into two sorts of courses /courses or forms/: the one simple, or say summary; the other complex.

    To what is here meant by the simple course of procedure belongs every case /cause/ which, without prejudice to justice (meaning the direct justice of the case) may receive its decision in the course of a single hearing or trial - in the course of a single attendance of the parties at the seat of judicature.

    To the head of what is meant by complex procedure - the complex course of procedure in all its variety of modifications belongs, every cause, it becomes necessary that more than one such hearing should take place.

    Some causes are ripe for decision at the first hearing: others may require any number of hearings before compleat and definitive justice can be done. To the complex species of procedure belongs of course every cause in which it becomes necessary for the ---- testimony - evidence from the same source to be exhibited more than once: exhibited for the purpose of the definition /---/ hearing the trial, in the character of ultimate evidence, after having been exhibited in the course of preparatory examination /procedure/ in the character of preparatory evidence.
  • Title: [9 July 1804 Procedure or evidence]
    Description: 9 July 1804

    Procedure or evidence

    Evils causes

    Ch. 2d Order

    '. 2. non-justicability

    Note (a)

    By justicable I understand serviceable to law. A man is justicable or not, according to the means which in his instance the law possesses of causing him to render any such service as is or may be legally demanded at his hands: the service of undergoing punishment, rendering satisfaction, or submitting to non-penal obligations corresponding to rights, thereby conferred on the adverse party - according as the case is purely penal, mixt, or purely non-penal.

    A man's general justicability is constituted by the aggregate of the means of all kinds which the law possesses of causing him to render all sorts of services in the event of their being legally demanded at his hands.

    In this sense a man who is not responsible in respect either of person or transferable property may be so in respect of his reputation or condition in life.

    When a man is spoken of as being specially or relatively justicable, it means that he is on some particular occasion justicable with relation to the particular service which in that occasion happens to be /is considered as being/ demanded at his hands.

    Where relative justicability is wanting - is not present immediately and of itself - the deficiency may often in an immediate way be supplied by general justicability. Thus where the demand attaches upon a man's property, and no property belonging to him can be come at by any direct operation of the law, yet if he happens to be justicable in respect of his person, i.e. if his person be taken into the hands of the ministers of justice, they by the physical power thus acquired over his person may cause him to bring his property within their reach. So