059-321.xml

Title: [3 June 1804 Procedure Ch. Basis]

Description: 3 June 1804

Procedure

Ch. Basis

[...?] 3. Exceptions

[...?] 3. Exceptions to the applicability of this arrangement -

If the reasons which concurr in prescribing this adoption of this arrangement in certain cases (which happily for [...ed?] are the most usual ones) are thus obvious, and [...?] the cases of exception which call for the limitation /suspension/ of it are no less so.

2. Cases where it is physically /absolutely/ impracticable. These are cases of non forthcomingness: viz: through causes an insuperable nature at least for the time.

1. Latentcy - where the abode /residence/ of the actual abode for the moment[?] of the defendant i.e. /or say/ of him who won his residence discovered[?] would be made defendant, is unknown i.e. to the defendant and the Judge: at the same time that it is not known that such has unforthcomingness is proposed on his part: having the [...?] of evading the appearance /meeting/ for its cause.

2. Latentcy. Where the defendant not being discoverable[?], his invisibility is regarded as purposed, and concluded to [...?] in that cause.

3. Expatriation precedental, and thence referable to other causes.

4. Expatriation consequential, referable like latetantcy to this cause.

5. Uniformity of mind: vice to a degree sufficient to disquality /incapacitate/ a man from /in respect/ the mental exertions necessary /that may be called for/ and in such an occasion, to such a purpose.

6. Infirmity of body of this course supposing it unattended with the degree of mental informity above indicated, the effect to the present purpose is confined to the ordinary seat of judicature. It affords no [...?] to the transaction of the business, at any such other spot, suppose the [...ber?] of the patient, as the nature of the infirmity may admitt of /evidence forthcomingness/.

059-308.xml

Title: [3 June 1804 Procedure. A.1. Evidence]

Description: 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.

059-312.xml

Title: [3 June 1804 Procedure. B2 Evidence]

Description: 3 June 1804

Procedure. B2 Evidence

Basis

6. To cause the defendant to receive a decision on the spot, in favour of him the plaintiff; or, if not, to join for his own benefit, in the fixation of some other term or terms for the personage of the enquiry for the continuation or determination of the suit.

7.

8.

6. That, if necessary, he may cause /having the opportunity of causing/ the defendant, upon oath, and under the check of cross-examination, to purge himself of all / mala fides - that is of/ evil intention and evil consciousness, in respect of collateral injustice, in the shape of unnecessary vexation, expence or delay, considered as producible by his plan /mode/ of defence:- declaring not only in general terms but in respect of each particular point, whether of fact or law, his own persuasion in regard to the question[?] of the /his/ cause: declaring for example his persuasion in respect of the trustworthiness /relevancy and conclusiveness/, of whatever extraneous evidence, personal, real or written he may have produced or have in comtemplation to produce.

(a) This arrangement, with its counterpart mentioned below on the other side of the cause, is but the Roman Oath of calumny made reciprocal and in its application, extended to all cases present[?] uses of the higher classes perhaps excepted. Bail also, converted from nugatory into efficient: for /soon[?]/, for want of particularization, confrontation viz: with his adversary and cross-examination, the effect of it was rather to increase mala fides /to encourage hypocricy/, and if it were not regarded as nugatory, produce false confidence. Insincerity .. popular habits of insincerity - can not so effectually be promoted, as by the multiplication of declarations, solemnly [...?], but in case of falsity, exempt from consultation. See. Mendacity[?] causes.