date

3 June 1804 Procedure. A.1. Evidence
3 June 1804

Procedure. A.1. Evidence

Ch. Basis

[...?] Adoption [...?]

Ch. 2. Of the natural groundwork /mode of enquiry/ or procedure, in what may be called the ordinary or regular mode /plan/: [...?] [...?] coram judici.

[...?].1. True basis of judicature are announced but partially adopted though incontrovertible.

A scene[?] /state of things/ must here be indicated /brought to view/ in the first place which in early ages was looked upon as essential to good /just/ judicature, and which the more closely it is examined /contemplated/ into, will the more closely be seen to be so. I mean the appearance of the practice face to face, in the first instance, that is, as soon as their mutual forthcomingness can be obtained, in the person of the Judge.

In [...?] in the character of the ordinary or regular mode /plan/ in which this meeting /arrangement/ is considered as the first step as the basis of every thing that follows /whatever he is [...?]/all subsequent arrangements/, so necessary [...?] [...?] was, my considering it as what ought to be considered as the fundamental arrangement. For had I mentioned as that which can be considered consistently with truth as an arrangement ordinary and regularly taken in all established systems of procedure, the lawyers of every nation which is considered as forming /belonging/ to the civilized world ought with truth rise up against me, and proclaim /protest/ with one accord /view/ no representation /statement/, of so [...?] an extent was ever more compleatly groundless.
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    Of Turkish judicature /justice/.

    A Turkish Court of Justice, and to speak more generally, a Court of justice proceeding according to the mode of procedure in use in Mahometan Countires, may be considered as little more than the domestic tribunal, furnished only with more extensive powers. A mode of procedure having no technical rules to fetter it, adopts of course the fundmental arrangement here distinguished as the only just and natural one. It convenes[?] the parties /litigants/ in the first instance, and brings them face to face.

    Yet Turkish judicature is bad enough: worse probably than the worst of European judicature: - Why? because the natural /this findamental/ arrangement though it will do much, will not do every thing: though no judicature can be good without it, yet without other securities, it is not sufficient to institute good judicature. It will not of itself institute a good public. It will not supply the want of a written rule of action - a body of statute law pointing out every thing that is to be done or not by all suitors. It will not constitute a good public: it will not render the Judge dependent on the preappointed rules of positive law, and unless it be the law of public opinion, independent of every thing else. Though his probity be ever so pure though his zeal abd oublic spirit /public spirit and love of justice/ be ever so sollictous and active, it will not furnish his mind with that prodigious stock of apposite and instructive information, which it requires ages to accumulate - the histories of the judicial transactions in individual causes, [...?] down by reporters, and methodized by institutionalists and abridgers. It will not: but no art /skill/ can avail for compressing into a single paragraph the substance of a whole work.
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    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.

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    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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    The object of the present course being not to confirm inveterate abuses, but unmask them, and by so doing, is possible to pave the way for their removal - I shall proceed to bring to view the consideration by which it will appear, that except the cases that wil be excepted, an interview of this sort is essential to the several purposes of justice: so compleatly and so manifestly essential, that from this circumstance alone, were all other proofs [...ing?] it would be but too manifest, that historically speaking there is not any European or Europe-taught country, in which the fulfilling the true and acknowledged ends of justice, has been the real object and final course of action of those by whom /professional men by whose/ judicial powers have been exercised under the name of justice.

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    In the darkest[?] system of procedure /judicature/, during the sleep[?] or in spite of the /an/ ineffectual resistance on the part of the natural enemies of truth and justice, the light of truth will here and there break in /have broken in/, and by reflection will to an attentive and learned eye pr...y[/] /expose/ to view in its genuine foulness the den of Cains[?].