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Evidence
26 July 1805
Introd
Ch. Perversion
In this case, suppose a man to whom it were not known or at least suspected, that there are occasions in which no credit can safely be given to any thing that comes officially from a set of English Judges, what would be the consequence? The consequence would be, such as it hath just been stated.
In general, so notorious is the untrustworthiness of the English system of procedure, even to the most uninformed - to those who scarce have scarce any other knowledge of it. Instances however will sometimes happen in which a man, unfortunate enough not to suspect deceit from such a quarter, will act as if there were no such deceit, and be deceived accordingly. I remember hearing a particular instance of a man who on an errand of this kind came post-haste to Westminster Hall from some place in Shropshire, a couple of hundred miles or so. It afforded great amusement to the lawyers, and was told as a good joke.
Should /he/ the man /defendant/ by any accident have cast an eye on what is called a Bill in Equity - is an instrument of the sort of that which draw upon him the misfortune of receiving such an address however, he would have /therein have/ received as full a confirmation as it is in the power of words to give. He would therein, have read a description of the sort of Writ prayed for by his adversary: a writ commanding not appearance without any thing more but personal appearance. What is the description of the sort as herein prayed for? Their Majesty's most grievous writ ... of Subpoenâ commanding them, at a certain day, and under a certain pain therein to be limited, personally to be and appear before "Your Honours in this Honourable Court, and then and there full true direct and perfect answer make" &c.
Fowler. . 35.
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Title: [Evidence 23 July 1805 Introd]Description: Evidence 23 July 1805 Introd. Ch. Perversion Of this second mode of perversion the sort of judicial instrument called a Sub poenâ served on the defendant for the commencement of a suit and a Sub poenâ ad [...?], may afford a sufficiently appropriate example. In the case of a suit instituted in the Equity side of the Court of Exchequer the first notice that the Defendant has of the demand made upon him is by a Writ called a Writ of Sub poenâ. In this Writ the spokesman is the King himself: the Chief o the four Judges of the Court (the Chief Baron) is mentioned in the character of a Witness. A certain somebody, whose special title is not mentioned signs the Writ with his name - in this form - by the Baron Elect, Immediately afterwards upon the words At the suit of (the Plf) by bill[?] another person signs his name, and again without his special title. This second person is a sort of mixed character called a Sec[?] - Clerk - an officer of the Court, but employed in the character of a professional Agent or Attorney by the party: who besides this sort of special Attorney, is found to have another, a non-official one. We command ... you says the Writ ( the surplusage is here left out) that you appear before the Baron of our Exchequer at Westminster it then goes on and either specifies a day or [...?] or in a more ordinary state says "immediately after the receipt of this our Writ." .. to answer us concerning certain articles .... to be objected to you: Then comes in case of disobedience, the threat of a penalty /a [...?] threat of a penalty/ of 100: which is never levied or intended to be levied. In receipt of an address of this kind, it is superfluous to ask what is the meaning of this. Judges, [...?] /announced/ through their silence are in every case thus used, and that of course with their full knowledge, yet in no individual instance /occasion/ does any such Judge know of the use thus made of his name on that particular occasion. Wave this question then, comes another and more material one, if the man who has received the address what in consequence is he to do to be saved. Appear which is what he is commanded to do, he must not. If he does, nothing will /no articles will be here/ objected to him: neither by these Judges nor by any body else will any notice be taken of him, unless it be to laugh at him, to laugh at him for his credulity, in supposing it possible for English Judges to speak or write for any purpose but to deceive. But what they will do to him in consequence of the obedience thus paid to their commands is to punish him for disobedience. To avoid being so punished, he has one way, and but one: and that is to employ an Attorney to appear for him: nor yet to appear then and there, and before this Judge; but appear before somebody else, at that or another time, and at any rate at another place.
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Title: [Evidence 6 July 1805 Introd]Description: Evidence 6 July 1805 Introd Ch. Perversion By technically-perverted language I understand such language as being in an active sense in common use among the people is taken in hand by lawyers and employed by them with a sense annexed to it different from any which at the time in question, is commonly annexed to it by the body of the people /in common use with the body of the people/. There is ambiguity: and the /fraud is the [...?] in the existence of it/ creation of it is the work of fraud. In every such case there is ambiguity, every such case there is deceit /fraud/. In the case of perverted language two modes of perversion require to be distinguished. 1. In the one case the person by whom the perverted language is employed is of the body of the people. The man of law - the Judge, taking up /in hand/ this language, ascribes to it an import which not being annexed to those same words in ordinary usage, was to his own conviction not meant to be annexed to it by him who used it. Of this species of perversion the nature and effect is most conspicuous in the case of instruments of contract: such as Wills, Conveyances, and Agreements. Take particular[?] for example the case of a Will. Testator makes a will, by the terms of which taken together, to the full understanding of the Judge himself, he thought to have bequeathed an article to Ortho[?]. Seeing this, the judge adjudges it to Pscredo[?]. On pretence /On what pretence/ that those same words have a different meaning, in virtue of which had it been the meaning of Testator, it would have been bequeathed to Pscredo. A meaning? but in whose mind? By the supposition, not in the mind of the person in question - Testator: by whom the power which the man of law had professed to have put into his hands is exercised: but a secret meaning annexed or pretended to be /have been/ annexed to those same words by a different person /by a [...?] of [...?] reservation/ set of persons: or set of lawyers. In this way it is evident, that the Judge, in pretence of carrying into effect the will of the testator, makes a false will for him, and it is this false will alone that he carries into effect.
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Title: [15 April 1805 Evidence Securities]Description: 15 April 1805 Evidence Securities Ch. Procedure Techn. ''. Allegation is Evidence What is curious, is - this sort of information /All the[?] which/ /incontinent[?]/, which is considered as not amounting to evidence - as not trustworthy enough to deserve the name of evidence - this information which is never considered as professing any /capable of acting with/ weight in the scale of evidence - which is never so much as received with the budget of evidence - to this very species /sort/ of information such a degree of power /efficiency/ - of effective power - is given - such a degree as is not /scarce/ in any case given to the most trustworthy article /lot/ of evidence. In no instance no article of evidence at least of testimonial evidence is considered as commanding the decision prayed /demanded/ for by the party by whom it is produced /sought for by the production /exhibition/ of it/. In every instance Information of this sort here in question - allegation - I mean allegation which constitutes the ground work of the cause is understood to exercise an absolute command over the decision or decisions sought for by the production /exhibition/ of it: or else, what courses exactly to the same thing, the same effect is made to take place - the same chain of burthensome obligations by some /a/ pre-established system of arrangements established either/ whether/ by the legislator, or by jurisprudential law acting in the place and during the shape of the legislator, is known /imposed/ upon the adverse /opposite/ party - the defendant, as would be thrown upon him by a corresponding chain of decisions specially adapted to each particular purpose. To defend /of defending/ himself against the demand made upon him by the instrument of allegation by which the suit is commenced, shall cost a man for example /the expence shall amount for example under the system in question to/ a year and a half; income of an average individual: such then is the amount of the pecuniary burthen which under that system every man is empowered to impose upon any other - upon every other - by that sort of information - bare allegation - which is not understood /regarded/ to be sufficiently trustworthy to bear the name of evidence. Note ( ) Under English jurisprudence, the expence on one side only - that of the df t for example amounts at its minimum to more than the quantum above exemplified.
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