date

21 April 1804 Procedure. Evidence
21 April 1804

Procedure. Evidence

Each (it may be said), has its advantages; each its disadvantages: each is conformable to justice. But in the regular mode, /it is to/ the interests of direct justice are most principally [...?] /that the greatest regard is paid/; in the summary, to the interests of that sort of justice which is opposed to collateral inconvenience and injustice. To a certain degree the two opposite contrasts are irreconcilable: in each instance the decision is made, as it ought to be made on that side which is attended with the smallest inconvenience, with the largest balance on the side of preponderant justice.

Such may be the argument in favour of the established [...?] division and nomenclature. It might be confirmable /agree with the fact/ to the truth of the case if the cases [...?] in the mode called summary were the simple cases, as above described: if in this mode called regular no cases were determined but the cases above described under the name of complex, and the mode were adapted to /employed were in each individual instance the mode/ such cases. But the case determined in the mode called summary are cases of this and that sort - [...?] of this or that particular description: choruses[?] /demands/ of money[?] brought forward on this or that particular ground: cases determinable in this or that particular judgement-seat Court established for that purpose.

The consequences - the practical ill consequences of the arrangement expressed by this nomenclature are accordingly such as have just been [...?] of: /brought to view[?]: in the procedure/ to the cases called summary, the benefit of such regulation as was claimed adequate have been /necessary to direct question/ deserved: or to cases in the procedure called regular, [...?] degree of dispatch as in the instances where the cases they have fallen under the above-mentioned description of simpler cases might have been given to them, has been refused.
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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: [24 March 1805 Evidence Securities]
    Description: 24 March 1805

    Evidence

    Securities

    Ch. Procedure Technical

    ''. Summary & Regular

    A distinction that coincides in some points with the above, is a distinction the terms of which are much more [...?] - viz: that between the summary /the summary and regular/ mode of procedure, and the regular But the terms /appellatives/ in question - natural and summary on the one hand, technical and regular on the other hand - want much of being interconvertible. Taken /[...?]/ in the aggregate, natural procedure as above described is beyond comparison more summary, more expeditiously dispatched than the regular. The former has of course /naturally/ the prevention of delay for its object, the latter as naturally for the reason already mentioned the production of this inconvenience. But in the nature of things it is not in the power of the natural procedure /system/ to be alike summary in all cases. Causes there are of which form a dozen to a score may be begun[?] and ended by the same Judge in the compass of the same day: and happily of a nature thus favourable to dispatch was a /the/ great majority of causes. But if at the commencement of the cause the [...?] of a necessary witness be at the antipodes, the time spent in /necessary to/ a voyage round the globe will be but a part of the span of time necessarily enclosed[?] /included/ between the non-measurement of the cause and the termination of it. In the 2 d and 3 d modifications as above described of the natural system of procedure, the impossibility of summary justice if by summary justice be understood the speedy termination of the cause results from the characteristic circumstances by which the necessity of demand for the correspondent deviations from the shortest and straitest course is produced. In this occasion as in all others, delay /lapse /consumption of/ of time/ is the natural and necessary result of local distance. But natural procedure arises if course arises in every case as being summary; and in proportion as it fails, the failure is the result not of this system considered in itself, much less of the system considered in contradistinction to the technical, but to causes exterior to both, and to each of them alike invincible.
  • Title: [14 July 1804 Procedure and Evidence]
    Description: 14 July 1804

    Procedure and Evidence

    13 Note

    In English law the whole body of the system of procedure is divisible into two branches distinguished by the appropriate names, summary and regular. Examples of the summary mode are the mode observed by the justices of the peace ---- out of general ---- and the mode observed in the courts for the receiving of small debts, technically called courts of requests, commonly called courts of conscience.

    The summary in its leading principles, is exactly conformable to /------, as far as the difference/ in respect of the occasion, admitts with what may be termed the natural - the domestic mode. Though susceptible of improvement here and there by the establishment of this or that particular security against this or that species of inconvenience, it may in its leading principles be exhibited /held out to view/ as a mode of perfection.

    The regular branches out into varieties in abundance: but taking it in the least ------ /depraved/ of them all, whatsoever that may be, it may be pronounced a corruption of the summary mode, a ceaseless deviation from the summary mode: and taking it in the aggregate an elaborate system of arrangements, produced /-----/ by the pursuit of sinister ends operating in compleat and constant repugnancy to every one of the ends of justice /legitimate ends of procedure/.

    The regular branches out into a number [of] varieties in abundance: each of which will be examined in its place: in the meantime --- but this much may be said of all of them /every one of them/, viz: that in exact proportion as it deviates from the summary mode, it deviates from the several ends in question /legitimate ends of procedure in question upon each occasion/ - the ends of justice. In the summary mode no quirks or quibbles make their appearance: in the regular mode, the equity branch is but too abundantly infected with them, in the common branch they are so abundant that upon a general view it seems composed of nothing else.