091-305.xml

Title: [1 March 1808 Letter VI Omissa]

Description: 1 March 1808

Letter VI

Omissa & Facienda

II. No Exclusion

3. Various are the case in which a pretended pecuniary interest, created by a sense[?] [...?] as no beggar of it long before him[?] would vouchsafe to stoop for - some minute fraction of the value of this [...?] came in existence, speaks as a peremptory exclusionary shutting out the light of evidence.

4. This together with the whole[?] remainder of the system of exclusionary rules as at present established are no more than an invention of lawyercraft, operating to the purpose /promoting the object/ of lawyercraft in a variety of ways - by making business i.e. lawyer profit, by founding uncertainty[?] by [...?] Judges with arbitrary power, and by debasement /depravation/ of the public morals and understanding.

5[?]. Making business in an infinity of ways. The same evidence which of right for by a less extensive course you [...?] not have, pay the price for it, that price an extra price and it is yours. Thus alone a man is not a party in that individual cause, there is no magnitude of interest which the lawyers are not ready to force[?] time from for the purpose of admission by what they call a purge, [...?] the materials and composition of which their shop must be resorted to of course. Neither is there any magnitude of interest under the influence of which they will not receive the testimony on the [...?] favour has one[?] cause, on condition of payment of one extra price facing the lawyers /submitting to depredation/ in two sorts of courts - an Equity Court and a Common Law Court - the Equity Court ordering what they call an Issue - a [...?] action to be tried in a Court of Common Law after which comes an ulterior course of pillage[?] in the Equity Court.

JB_097_146_001.xml

Title: [21 Aug t 1806. On the same principle]

Description: 21 Aug t 1806.

On the same principle it, (of an implied original contract to

submit to the rules of the community, whereof we are members) that

a forfeiture imposed by the by-laws & private

ordinances of a corporation etc. ..... immediately create a debt

in the eye of the law. III 159.

General implication & intendment of the courts of judicature,

that every man hath engaged to perform what his duty or justice

requires. III 161

If I employ a person to transact any business for me .... the law

implies that I undertook, or assumed to pay him so much as his

labour deserved. And if I neglect to make him amends, he has

a remedy for this injury by bringing his action on the case upon

this implied

assumpsit, wherein he is at liberty to

suggest that I promised to pay him so much as he reasonably

deserved. III 616.

If A has the jus proprietatis, and B. by some

unlawful means has gained possession of lands .... dies seised of

the lands, then B.'s heir ... hath not only a bare possession, but also an apparent jus

possession or right of possession.

For the law presumes, that the possession, which is transmitted from

the ancestor to the heir, is a rightful possession, until the

contrary be shown: & therefore the mere entry of A is not

allowed to evict the heir of B; but A is driven to his action

at law to remove the possession of the hier, though his

entry alone would have dispossessed the ancester. III 177

Victim defended in Ejectment [A Writ of ejectment is] founded on the

same principle as the antient writs of assize being

calculated to try the mere possessory title to an estate;

& hath succeeded to those real actions, as being infinitely

more convenient for attaining the end of justice; because the form

of the proceeding being entirely fictitious; it is wholly in the

power of the court to direct the application of that fiction, so as

to prevent fraud & chicane, and eviscerate the very truth of

the title. III 205

Taking or detaining a man's goods are respectively trespasses; for

which an action of trespass vi et armis, or on

the case in trover & conversion is given by the law. III 208.

Depriving one of a mere matter of pleasure as of a fine prospect, by

building a wall, or the like; this as it abridges nothing

really convenient or necessary, is no injury to the sufferer,

& is therefore not an actionable nuisance. III 217

De minimus non curat lex. III 228

In the case of distress for fealty or suit of court, no distress

can be unreasonable, immoderate, or too large: for this is the only

remedy to which the party aggrieved is

intitled, & therefore it ought to be such as is

sufficiently compulsory; &, be it of what value it

will, there is no harm done, especially as it cannot be sold or made

away with, but must be restored immediately on satisfaction made.

III 231.

For a freehold rent, reserved on a lease for life, etc, no action

of debt lay by the common law, during the

continuance of the freehold out of which it issued: for the law

would not suffer a real injury to be remedied

by an action that was merely personal. [ ] III 232.

The prerogative of the crown extends not to do any injury; for,

being created for the benefit of the people, it cannot be exerted to

their prejudice. III 255

This intricacy of our legal process will be found, when

attentively considered, to be one of those troublesome, but not

dangerous, evils, which have their root in the frame of our

constitution, & which therefore can never be cured without

hazarding every thing that is dear to us. III 267

048-276.xml

Title: [5 July 1803 Evidence Written]

Description: 5 July 1803

Evidence

Written

§.3 Rules

Under the English law, dreadful indeed, (if this species of evidence were not received,) would be the condition of the trader, if this species of evidence were not received. Under the same law the masters own evidence would not be received: (since, according to the general rule no man's evidence is received in his own behalf, and of /among/ the numerous list of exceptions this case is not one.) It is not received in the ordinary viva voce form subject to examination it is not received in the form of written extrajudicial evidence - the form it wears when the entries are made under the master's own hand in the master's own books. If /thus stood/ the law stood thus, a man's title to the whole mass of [...?] moneys owed /owing/ to him would depend upon the lives of the servants respectively privy to the respective transactions between him and his debtors: were the law universally known to stand thus, all dishonest debtors would look upon the death of the bookkeeper /journeyman/ by whom the goods had been delivered to them in the shop or the porter by whom they had been delivered out of the Shop, as tantamount to a receit[?] for their respective debts. All credit would be at an end: trade could not /scarcely/ be carried on otherwise than for ready money: the value of the risk a man /trader/ run by the death of his servant /journeyman/ would be greater than the present average amount say the 15 per cent per annum of the profit of trade. The rate of profit upon all goods would require to be increased accordingly. But the corruption of morals by the irresistible /premium/ encouragement given to dishonesty - an encouragement the receipt of which would become frequent and notorious /abundantly and notoriously exemplified would be extreme: is/ said to have sometimes/ said to have happened in some instances by a power /an occult/ in the political body parallell to what is called vis[?] medicatri[?] natura[?] of the physical body arise[?] at the command of necessity an extraordinary degree of vigour on the popular or moral sanction should supply the fill up the gap occasioned by the deposition[?] of the force of the political sanction. But before the mischief had come to any such pass, legislative authority could not but interfere /step in/, and either simply rescind the common law rule, or obviate /moderate/ the mischief of it by the institution of some species /modification/ of pre-appointed evidence