date

29 April 1805 Evidence Procedure
29 April 1805

Evidence

Procedure

Ch.1. Evidence &Procedure

Introduction

Containing matter common to the subject of Evidence and Judicial Procedure. Ch.1. Relation of Evidence to Procedure. The rationale of evidence is but as a branch to the trunk if not rather as the kernel to the nut, to of the rationale of procedure. Exhibition or receipt of evidence /Attention to /Consideration of/ the evidence/, though a principal operation, is but one out of a number of operations /transactions/ /which come to be performed/ in the course of a Judicial Enquiry. Such however is its comparative importance, and so distinct is it /this topic/ in its nature from the rest /By its importance however, and its distinctness from the rest of what relates to this part of the business/ its distinction and above all the quantity of discourse requisite for searching it to the bottom, that a work on this subject and of such an extent could not be without a bit[?] of palpable incongruity have been enclosed in the belly /bowels/ of a work on the subject of procedure. In point of importance, if any comparison in this respect could be made among the mutually necessary parts of an aggregate whole /respect were not like a comparison in this respect between the belly and the members/, it might be a match for all the others put together. In respect of distinctness /Respecting separation/, it is so distinct is it from all details of procedure, as to form quite a separate subject of inquiry, applicable to a variety of other purposes and in correspondent variety suited to the purposes /demands/ /exigencies/, views and studies of other classes of readers. Science in all her branches, religion herself, rest on evidence in their support: both shrink with horror from the details /labyrinth/ of judicial procedure.
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  • Title: [29 April 1805 Evidence Introduction]
    Description: 29 April 1805

    Evidence

    Introduction

    Ch.1. Evidence &

    Procedure

    Compared with the whole or with the remainder, a part of any work or system of operations can not but have in view /be directed or at least[?] require to be directed to/ the same end. The end therefore, with its immediate relation and dependencies - the common end will be a topic appertaining in common[?] to the topic /subject/ of the two works - a work /the rationale/ on the subject of evidence and a work /the rationale/ on the subject of procedure. To This part therefore a place could not be refused in the present work: it could not be posted off to any other. /eventually succeeding one publication./ Of two works so intimately connected, it can not however be expected than in either all mention or reference should be avoided of /to/ the other. In and between[?] all branches of science, lines of demarcation, such are the [...?] of human weakness [...?] be drawn, but it is seldom indeed that they can either be drawn straight in the first instance, or secured against encroachment on either side.

    To Evidence will be referred what concerns the admission or exclusion, the approbation, of testimonial and other evidence and the guard against such /the/ deception of which it is /so be[?] it[?]/ apt to be productive. To procedure, the arrangements /operations/ necessary and proper to be employed /[...?]/ for the obtainment of it. In a work of evidence accordingly, the source of evidence whatsoever it be, person, thing, written document is supposed to be forthcoming: but the quality of it - the weight it is entitled[?] to act with at the scale, depends too much on the mode /operations/ in which it is extracted from that source, to admitt of posting[?] off the theory[?] /rationale/ of these operations to any work what concerns the direct[?] the rationale of those operations.
  • Title: [17 June 1805 Evidence Introd]
    Description: 17 June 1805

    Evidence

    Introd

    Ch. Procedure Technical

    '. Ulterior Means

    1. First resource for making business /First source of made business/. Superfluous Enquiries

    Establishing with or without natural necessity or pretence and with or without application from either party, the factitious necessity, enquiry upon enquiry, in relation to the same facts, enquiry in a worse mode, before or after enquiry in a better mode. Exemplifications of this sort of ingenuity will be found in the body of this work +

    2. Enquiry by one Judge, decision by another. Where by the personal examination and view of the parties and other witnesses the verdict[?] of the cause, and when such of them as may happen to be [...?] have had least time or no time at all to conceal or [...?] measures for concealing or disguising the truth, one Judge or set of Judges has obtained a better insight into the cause than can be obtained by any other, suffer not the decision to rest in his hands, but transfer it to those of some other Judge or set of Judges who know nothing of the cause but form the dead letter to which the minutes of the evidence have been consigned. In this head likewise, details and exemplifications on the body of this work +++. In the character of a father of a family, wishing to come at the truth and to do justice still [...?] or [...?] would be [...?] weak?

    3. Irrelevant decisions. Decisions (with the previous arguments and other operations) on points foreign to the merits. That the business may be to be done over again: and the fees[?] repeated, manufacture pretences for declaring the proceedings null and void, on the ground of irregularity; whether /and these/ the rules to which they run counter have or have not been previously cognoscible. Of this more in a chapter appropriate to this head. ++

    4. Countless Removals from Court to Court. Authorise or necessitate with or without application from the parties or from either party the removal of the cause from Court to Court, co-ordinate subordinate or superordinate, and with or without ultimate decision pronounced in the Court first applied. - [...?] and keep up the entanglement of jurisdiction as much as possible. Of this subject a particular view will be given in the Rationale of Procedure

     Here[?] in a chapter by itself?

    Securities. English Law

    ++ Ch. Irrelevant decisions

    Securities
  • Title: [7 May 1805 Evidence Introd]
    Description: 7 May 1805

    Evidence

    Introd.

    Ch. 12 Procedure Natural

    ''.6. Modification necessary

    Procedure 1. Powers. 2 [...?]

    + Ch. or ''. Modification necessary to fit /adapt/ the domestic System to the purposes of political judicature.

    On considering the domestic system of procedure

    On considering with a view to its application to the exigencies /field of action/ of a political community the course /system/ of judicature pursued /observed/ in a family two considerations /reflections/ /[...?]/ /observations/ strike at once upon the mind: how beneficial it would be /it would be in the highest degree/ could /that/ any such extended application should take place; and how /that/ impracticable /impossible/ it is that, without considerable addition /modifications/ and alterations, it should be enabled to fulfil the main ends /be [...?] to the fulfilment of the aggregate mass of the ends/ of justice.

    Vexation, unnecessary or preponderant, none: expence, absolutely none: delay, none but what is absolutely necessary to the establishment of the justice of the demand /classes/ of just, of the fact of its not being done, of its injustice if not done. This much as to the collateral incidental ends of judicature and as to the [...?] ends, with their counterparts the collateral ultimate ends, if the fulfilment of those ends is, in respect of its certainty, necessarily subjected to those contingencies which have their rest in psychological [...?], at any rate it finds out in its every [...?] fictitious /artificial/ laws set up in such a manner as to render it impossible.

    Modifications the family system certainly requires to have undergone, in it can be rendered subservient /have been adapted/ to political purposes: but the modification /when as [...?] about,/ will be found to be rather in denomination than /names than/ in substance, the changes in denomination amounting to little more than what results of necessity from the enlargement of the field of action, from the encreased magnitude of the scale.