date

10 June 1804 Procedure (6)
10 June 1804

Procedure (6)

Ch. Basis

Turkish

The story /epigram/ about the bastinadoes is a wretched /miserable/ sophism. It would have been argument, had the adversaries he was combating /causes //opponents// of the abominations he was pleading for/ recommended this ceremony /operation/ as a substitute to the formalities they were complaining of, or if /had/ any necessary connection had been shown /pointed out/ between this accidental use of power on the one hand and the hearing of the best evidence, extracted in the best mode free from the injustice of unnecessary /useless/ expence and delay, and vexation on the other.

The question is - if in any European state, the natural and summary system of procedure as above described were substituted throughout to that technical system which alone is recognised by lawyers /professional men/ under the name of regular - would the practice of giving a beating to both parties without cause, be a probable consequence - or say even more likely to happen than at present? To state the question it to answer it.

Excepting the exclusions put upon the best evidence by any false science, in respect of the faculty of saving the suitor from unnecessary vexation expence and delay, the mode of judicature of the English Country Magistrate is exactly upon a footing with that of the Turkish Bash[...?]. In the compass of a twelvemonth how many bastinadoes are distributed among suitors by the aggregate body of the English Justices of the Peace?
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  • Title: [10 June 1804 Procedure (20]
    Description: 10 June 1804

    Procedure (20

    Ch. Basis

    ' Turkish

    The acknowledged defects of Turkish judicature have for more than half an age been the stronghold of the patrons of abuse /bad judicature/. There (they say) you have your judicature in the family /domestic/ state, and see what it is you get by it. The vexation, no expence, no delay, but the small matter /portion/ of [...?] that may happen to /is indispensable //[...?]// from enquiry, whichever may be the subject in the end/ be absolutely indispensable. No vexation expence and delay, or next to none: yet Turkish judicature is a proverb /proverbial/ for injustice.

    Causes, concomitant but influencing circumstances - Co-effects and obstacles - all have their connection /are connected in one way or another/ with the effect. Shallow /weak or hasty/ men actually take - wicked and deceitful men pretend to take - not only co-effect, and uninfluencing circumstances - but even obstacles for causes.

    The vexation, the expence the delay, even the dangers of "justice, are the price (says a French writer /says [...?]/) which each Citizen pays for his liberty." The observation in itself is true: and so true as in itself to be not worth making. But the conclusion which he designs /intends/ the reader should draw, and which but too many readers have been weak /hasty/ or wicked enough to draw - though he had not the face /courage/ to draw it himself - is - that these obstacles to good judicature are indispensable causes: [...?] quibus [...?] and that as according to the trite but uninstructive /familiar but more perplexing than instructive/ maxim effects are always proportioned to their causes - the greater the mass of vexation, expence and delay preceded your /any/ decision, the better the /your/ chance /security[?]/ it has of being conformable to direct justice. Examine (says he) the formalities of justice in respect of the trouble /hrams/ which it costs a citizen ti get /must be at/ his property restored to him, or to get satisfaction for any personal injury, you will doubtless find too many: regard the relation they [...?] to the liberty and security of individuals /citizens/, you will often find too few: and then comes the passage from whence you are to understand that the justice you buy is good, in proportion as the price you are made to pay for it is excessive.
  • Title: [10 June 1804 Procedure (3)]
    Description: 10 June 1804

    Procedure (3)

    Ch Basis

    Turkish

    Immediately after comes the above cited passage from which you are to understand that the justice you are made to buy is always good, in proportion to /as/ the price you pay for it is excessive. And lest you should suspect the accuracy /[...?]/ of the proportion /ratio/, before the chapter is at an end you are informed once more that "formalities (what he understands by formalities is already understood) are a [...?] sort of thing that in every community go on increasing in the exact ration of the regard paid in it, to the honour, the property, the life and the liberty of its members." /+ib/

    This is so true, that there is not a more certain[?] sign of disposition that "there is not a more certain proof /sign/ of a mans being a despot in his heart, than that of his harbouring a wish to make the laws more simpler Witness Caesar Cromwell and the rest of them /so many others/. /+ib/
  • Title: [23 July 1804 Procedure & Evidence]
    Description: 23 July 1804

    Procedure & Evidence

    6 (3)

    Note?

    Enquiry Mode

    Ch. Advantages

    In the different systems of technical procedure it is curious enough to observe, by what industry, or by what good fortune, how the influence of this natural preevention of malâ fide causes has been eluded.

    In the Romano-Gallic system, in non-penal cases the faculty of extracting evidence from the testimony of the adverse party is not refused, as in the English system it was and continues to be in the originally instituted Courts called the Common Law Courts. It is even allowed to be extracted by /in the way of/ vivâ voce examination, and pro tanto so far in the best mode: not by strings of questions following one another in an instrument, followed /replied to/ on the other side by strings of questions following one another in another instrument, as in the English Equity Courts. But the person by whom the extraction is performed, is the Judge: the adverse party far from being allowed to put questions, is not so much as permitted to be present. The fatal consequences of a mutual explanation of the parties in the presence of the Judge, each with powers for extracting truth from the unwilling lips of the other, are thus happily, if not /have thus happily at least, and probably enough/ ingeniously avoided.

    In the English system, the appearance of the parties in the face of each other and the Judge is compleatly avoided and prevented in all cases except those in which it is not possible to prvent it. These are a [...?] class of criminal causes /+In causes non-penal premature[?] explanation[?] is avoided. in which the defendant appearing unavoidably in the character of a prisoner, and the Courts open [...?] exclusion of the adverse party the prosecution is impossible: especially of as in most cases /[...?]/ and of a penal nature he is admitted in the character of a witness. But in this case besides that explanation would come too late, by far the greater part of the delay, expence and vexation of the cause being already incurred, the shame of explanation is avoided in no inconsiderable degree by another arrangement: no question which the defendant would not wish to answer being sufficient to be put to him in any [...?] case for fear his guilt should come to light. It seems implicitly understood by /in/ the [...?], that no unnecessary discouragement should be thrown in the way of customers.