date

3 June 1804 Procedure. A2 Evidence
3 June 1804

Procedure. A2 Evidence

Ch. Basis

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

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.

Nor yet in perhaps /Nor on the other hand/ any of these countries, certainly not in England have the instances in which their only [...?] and rational plan /mode/ has been adopted, been by any means so few[?], as the act[?] to take compleatly away all pretence for regarding the arrangement as visionary confirming as they do the conclusions of just theory, by as satisfactory a testimony as ever was afforded by experience.

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[?].
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  • Title: [4 May 1804 Evidence Forthcomingness]
    Description: 4 May 1804

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    Forthcomingness

    Ch Investig Eng Law

    §.1. Original deficiency

    Little by little /By degrees/ this radical defect in the contrivance /plan/ of the system has in some instances /in this or that instance/ been to a certain degree supplied: but even in these /to that limited extent/ it is to accident /the fortuitous concourse of atoms/ that the system has been indebted for the improvement, not to design in any case. While the exercise of investigatorial power remained in every case impossible, that power continued /remained/ in every case unexercised: in proportion as in this or that instance the possibility of exercising /one inlet to the exercise of/ it came into existence, the practice of exercising it crept in. What there is of it, society is indebted for to the exertions /ingenuity and industry/ of the subordinate class of judges Justices of the peace - not to any individual breathing /person that ever existed/ in the character of a legislator of a Chief judge: to Country Gentlemen in a word not to men of law.

    In a word wherever we see a non-lawyer - a man of education - anglicé a country gentleman acting in the character of a Justice of the Peace, acting at his own house, there we shall see evidence discovered by /truth brought to light by the exercise of/ legal powers, because the employment of legal powers for that purpose was not impossible, as to the professional Judges his superiors, if on this score justice is indebted to them in any shape, not to their exertions /it is to their forbearance/ that the thanks are due, not to their exertions but to their forbearance: to their sleep much rather than to their vigilance.

    Books upon books might have been written for ages, as books are written by lawyers, and no such ideas other than investigatorial procedure might have been brought to view, no notion taken of the difference between that and procedure testibus /probitionibus/ cognitis - none consequently of the latitude /extent of ground/ to which the use /dominion/ of investigatorial procedure has extended, nor of the helplessness of the law for want of it in the cases to which it has not reached.

    Note (a)

    (a) a few [...?] excepted, and these clogged with exceptions upon exception, for facilitating the discovery of written evidence.
  • Title: [29 May 1804 Procedure (4)]
    Description: 29 May 1804

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    (4)

    Ch. Special Pleading

    What makes the abuse the more scandalous - the grievance the more crying, is - that it is not the unextirpated remnant of antient barbarism, the continuance of which is the result of simple negligence, but a comparatively modern arrangement /grievance/, substituted within time of memory - that is of distinct history, substituted by a strong and corrupt hand, under the sleep of the legislator /during the slumber of the sovereign/ to the more simple and better practice of former times: it is the result not of primeval ignorance but of misapplied /proverbial[?]/ knowledge misapplied, like forgery and libelling it is an abuse of the grand instrument of civilization - the art of writing.

    In the case of this as of every other art, the rarer the art, that is the fewer the practisers the better they were paid in proportion to the demand for their service: and the better they were paid, the more attentive /eager/ they would be to multiply as far as depended on themselves, the occasions for the practice of it, and the extent to which it was to be practiced. Hence, instead of oral /vivâ voce/ allegations supported or confuted on the spot by vivâ voce depositions, the result of reciprocal /contemparious[?] and vivâ voce interrogation, came[?] plea upon plea in writing, the writing swelled /swollen/ in each instance by as large a mass of unnecessary words /verbiage/ as the ingenuity of the learned[?] author could find a pretence for [...?] [...?]. Thus swelled /grew/ expence, with its consequent and concomitant [...?]. But writing is a work of /takes up/ time and writing in one part supposes and necessitates reading on the other: and thus delay grew out of vexation and expence: fresh delay, productive /fruitful/ in its turn of fresh vexation and fresh expence: collateral injustice in each shape being at once the effect and cause of collateral injustice in every other, frequently also the cause of direct and ultimate injustice whether in a natural way by deposition of evidence, or in the way of positive law, by a positive decision, an act of perversity and folly, refusing on this or that pretence, all alike frivolous: and without so much as the pretence of necessity, refusing to give effect to the assurances given by the substantive or rather main body [...?] of the law.
  • Title: [[...?] April 1804 Evidence]
    Description: [...?] April 1804

    Evidence

    Introd. Exclusion[?]

    Ch. [...?] Non-homologation

    In every country more or less such has to all appearance been the policy /object/ - such at any rate has been the result. With or without determinate design no where has it been carried to a greater /so great an/ extent, no where with such prodigious // and almost compleat effect, as in the domain /field/ of English law.

    No where else has the rule of action been left to so vast an extent in the state of jurisprudential law: no where has the legislator given himself less trouble to draw /take/ it out of that state /corrupt and disgraceful state/. No where has the exertions made to deceive the people in so essential a point, and to cause this [...?] /sink/ of depravity to be taken for a source of unrivalled excellence been so busy or so successful.

    No where else has legislator so compleatly and avowedly resigned himself /his power/ into the hands of the men of law. No where else, [as often as any little attempt is made an amendment] is it a question so regularly put, or so premptory in its effects when put - has your proposition the approbation and assistance of the gentlemen of the law robe. No where else is the policy /maxim/ so openly avowed or so steadily adhered to - never to presume to seek any report give to the sheepfold[?] any the least, /considerable/ repair, that has not been planned or at least compleatly approved of by the wolves.

    Hoc est /esit/ quam [...? ...? ...? ...?], said a lawyer of former days speaking of an arrangement by which the / / would have been placed under the guardianship of the / /. But the / / is by no means so compleatly under the power and at the mercy of the / / as the subject in his character /by the imbecility and negligence of the legislator/ of suitor has been given up in to the power, and abandoned to the mercy of the man of law. The / / has /sees/ over him the man of law: whose interest it is while both are fleeced, that neither shall be devoured. The man of law has nobody above him but the legislator: the legislator, who to whom so ever else he may be awake has been in use for ages to ? to the man of law.

    Who vesp ? like may know to whom to sleep, and to whom to be awake: but who