date

3 June 1804 Procedure. B1 Evidence
3 June 1804

Procedure. B1 Evidence

Basis

Fundamental rule - except in the particular cases that will be specially excepted, and by which the arrangement generally proper /practicable and economical[?]/ is rendered either impracticable or preponderently inconvenient, the first step proceeding in every cause, after the preliminary proceedings whatever they may be, [...?] may be necessary to bring above this first step, ought to be the appearance of both parties or say all parties face to face in the presence of the Judge.

Purposes with relation to which this state of things is necessary or conducive.

1. [...?] of procedure, non final.

1. Purposes for which it may be of [ad...ing?] to the plaintiff, that the defendant should then make his appearance.

1. That the Plt[Plaintiff] may cause the defendant to exhibit

1. To be examination in the character of a witness exhibit

has [...eral?] testimony on being examined in the way of vivâ voce examination, in the character of a witness - a course of personal evidence: to acknowledge such facts, tending to [...?] this claim of the plaintiff as the plaintiff might not otherwise have been able to discern[?], or if not all and [...?] additional [...?] [...?] and [...?].

2. To indicate and discover and engage himself for the [...?] [...?] such [...?] of wisdom, personal, real or written, as being in his custody or power, or lying within his knowledge or supposed or real wisdom or, may serve, or tend to serve to [...?] which the classes of the plaintiff.

3. To authenticity[?] by his confession[?] all such sources or written or real evidence of thislike [...?] , by being in the custody[?], however [...?] or supposed of the plaintiff, may on this occasion have been produced or brought to remembrance for this purpose.

4. To make known /[...?] and[...?]/ to the plaintiff all such facts of a tendency favourable to him (the defendant) and thereby consequently unfavourable to the claim of the plaintiff, as he the defendant means to rely on in the character of grounds for respecting the plaintiff's claim: or establishing on his own part any counter claim and by that means to put the plaintiff upon his guard, and give him such notice /information/ as may of [...?] and unanswerable, [...?] to convince him of the [...?] of pursuing his claim any longer - or if controvertible or answerable, propose him for the production of counterevidence, of the facts in question or of ulterior facts, operating with a counter tendency.

5. If his defence in any respect be grounded on some /any/ proposition or propositions relative to the disposition of the law, [...?] in that behalf to bring them to view, that the plaintiff may desist or insist accordingly.
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  • Title: [4 June 1804 Procedure. Evidence]
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    II. Purposes for which it may be of advantage to the defendant that the plaintiff should thus make his appearance.

    1. That the Defendant may cause the Plaintiff to exhibit his confessional[?] testimony, on being examined, as above: that he (the Plff) may acknowledge such facts, if any, as may tend to repel his claim, they being such as the defendant might not otherwise have it in his power to discover - or if at all not without superior vexation expence and delay.

    2. That he the defendant may cause /have the opportunity of causing/ the Plff to indicate and discover, and produce or bind himself to the producing any such other sources of evidence personal, real or written, as being in his custody or power, or lying within his knowledge or [sup...?] may tend to reject the claims of him the plaintiff, or constitute or substantiate any counterclaim of the defendant.

    3. That he the defendant, on sight /on case of the production/ of any real or written evidence making against himself and produced accordingly by the plaintiff (suppose a memorandum or letter in a hand writing being or appearing to be that of the defendant but /having/[...?]/ per tanto though distinctly[?] in the character of confessorial evidence, may by the suggestion of ulterior facts or observations, have the opportunity of removing the delusion, and placing that part of the evidence in its true light.

    4. That he the Defendant may have the opportunity of causing the plaintiff to authenticate by his confession all such sources of real or written evidence of an[?] instance[?] to operate in favour of him the defendant, as being in the custody /power, knowledge or [...?]/, of either party may on this same occasion have been brought to view[?] or to remembrance for this purpose.
  • Title: [4 June 1804 Procedure. Evidence]
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    5. That he the defendant may cause the plaintiff to declare and make known to him, all such other facts, if any, of a tendency favourable to him - the plaintiff, and thereby unfavourable to him the defendant, as he the plaintiff means to rely on in the character of grounds for substantiating his claim[?]: and by that means to put him the defendant upon his guard, and give him such notion[?] and information, as may if uncontrovertible and unanswerable, save to convince him of the inability of maintaining his defence or repugnancy any longer - if controvertible or answerable, perhaps have for the production of counter evidence, viz: in relation to the facts in question, or if or in relation to ulterior facts, operating with a counter-tendency.

    6. That if his the defendants defence be grounded in any proposition or propositions relative to the disposition of the law on that behalf, viz: /ex. p[?]/ a proposition asserting that although they /the facts/ were such as the plaintiff contends would not operate in the character of /in favour of the plaintiff/ an investiture[?] [...nt?] enforcing upon him a right to the service to which at the hands of the defendant he lays a claim. He may have the opportunity of bringing them to the view of the plaintiff, and thereby if they be well grounded, causing him to desist from the prosecution of the claim at this early stage or if, upon such first view they appear doubtful to the Judge, he may have the opportunity of fixing in concert with the plaintiff, some certain term for the prosecution of the agreement /debate/.

    7. Upon the whole to cause the plaintiff, in the event of his being in the wrong, to receive a decision on the spot, in favour of him the defendant: or in case of non-decision, to cause him to join in the fixation[?] of some other time or times at which the enquiry may be pursued - and finally determined, that so in one way or other, he the defendant, may as soon as possible be acquainted with his fate.
  • Title: [26 Jan y 1805 Evidence Securities]
    Description: 26 Jan y 1805

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    ''. Mutual Declarations

    ''. Natural System. Procedure on first meeting. Mutual heads of declaration /Explanations/

    So distinct in all its siniorities[?], the course taken, under the influence of this sinister interest by the system of procedure belongs not to the present work. What was here necessary, is here sufficient - the marking /presenting/ out that sinister interest as the original and efficient as /or/ well as final cause of so many phenomena which otherwise would be inexplicable: in particular of the [...?] of arrangements by which the efficacy of the natural system of procedure in respect of the security afforded by it for trust /the trustworthiness of evidence /against non decision or faction of justice on the ground of evidence/ has been weakened to a degree which will be but too apparent.

    If /When/, at the commencement of every cause which admitts of such scrutiny[?], that is to say in nine causes out of ten, or nineteen out of twenty, the parties were to meet one another face to face, in the presence of the Judge, the facility which such meeting affords for the [...?] of both [...?] in the character of self serving witnesses, and the mutual cross examination of both in the same character /character of self-[...?] witnesses/ would constitute but a part of the advantage sooner done to justice. To each of them, whether he has happened to be in any such situation as will have enabled him to depose /act/ in the character of a witness, /delivery[?] direct and position testimony/ in relation to any of the facts in dispute, is in most sorts of causes a matter of accident. What is certain is as follows -

    1. The Plaintiff will have it in his power to declare /make known/ in the face /presence/ of the Defendant as well as the Judge - what the act is, the performance of which is the [...?] he demands at the defendants hands - what the facts are on which he grounds such his demand, and what the article of law is which in his conception warrants it.

    2. What the grounds are on which his persuasion of the truth of such several facts are founded: - his non perception[?] past or present - his own inferences from his own perceptions - the direct testimony of others, expression of the principles of those others - articles of real evidence, expressive of the testimony of things, articles of written evidence, expression of the evidence of persons through the medium of that of things - and so forth