074_280.xml

Title: [29 April 1804 Evidence After]

Description: 29 April 1804

Evidence

After Adduction and Identification

Forthcomingness.

Ch. 3. Means physical

§ 11. 10. Maintenance

Maintenance - alimentation

11. Maintenance, including alimentation: alimentation, the maintenance of an object of the class of animals, more especially of of the class of human creatures. Maintenance is a process incident by accident, to detention, to caption, to detention, to commitment to sequestration. By maintenance I understand /is to be understood/ the preserving the object /the source of the evidence/ from deposition, and as much as may be from deterioration: from deposition in the character of a source evidence, to prevent deposition of the evidence: from deposition in its own[?] character, to prevent vexation and expense: to prevent vexation where undue, to prevent it, by transferring the expense from the quarter in which it would be undue to the quarter in which it is due.

This operation where the performance of it becomes necessary, viz to prevent the deposition of the evidence, makes an addition more or less considerable, but naturally very considerable, to the difficulty and vexation attached to the [...?] of the end in view - the preservation of the evidence. Where the end can equally be obtained by detention on the spot the expense and vexation of maintenance will in general be considerably less, than where adduction and sequestration are /is resorted to must be employed.

074_283.xml

Title: [13 May 1804 Evidence Forthcomingness]

Description: 13 May 1804

Evidence

Forthcomingness

Ch 3. Means physical

§.12. 11. Visitation

1. Option between Real & Reputed real evidence. 2. Transcriptive viz [.?] in written evidence. 3. Such[?] bad examination its inconveniences.

§.12. 11. Visitation per judicium. Of this operation, and the occasions which appear to call for it, mention has already been made on another occasion, in another place. + So far as it is employed, it is a substitute /succedaneum/ to the operation of adduction, already mentioned. As to the other operations, they remain in other respects /in this case/ on the same footing, except that the person by whom they are /come to be/ performed is different, viz: the Judge or his deputy ad hoc, instead of the party, or some ministerial officer of justice.

An observation that belongs to the present head, is - that in this case, as compared with that of adduction, the vexation, whatever it might in the other case, nearly have been, vanishes: or, which comes to the same thing, is transferred from the party to the Judge, to whom along with all other vexations it is made up for and compensated by the advantages attached to his office.

+ Ch. 2. Means. Courts §.3. Ambulatory.

058-213.xml

Title: [19 May 1805 Evidence Introd]

Description: 19 May 1805

Evidence

Introd

Ch. False Ends. 1 Judge

' 3. re-Opposition Mode

''.3. Opposition of that corrupt interest to the several ends of justice.

In the virtue and efficacy of the very simple and single circumstance above-mentioned may be seen a cause abundantly adequate to the placing the interest of the functionary in every /each/ one of its branches in a state of diametrical opposition to the interest of the parties in every /each/ one of its branches, or in other words, to his duty. On each /the referred/ occasion it is his interest, that his profit be as great, his labour as small as possible. By the measure of the pecuniary burthen imposed on the suitor, both of these ends /interests/ are served at once: those who have wherewithal /the money/ are pillaged, and thus his profit is assured: those who have it not are shut out; and thus his labour is diminished. The tax and the prohibition work hand in hand: each, though in a different way, operates /ensures/ to his benefit. /to the use of him by whom it is imposed./

Portions of the mass of wealth made to pass on the occasion of every operation out of the pocket o the individual into the pocket of a public functionary are called fees. By encreasing the number /multitude/ of operations, we have seen how he encreases the multitude of his fees. But delay in every length of it is a means /source/ of probable incident: every incident is a means /source/ of operations: every operation is a source /means/ of fees. Such then are already the consequences of the arrangement: on the part of the excluded indigent, disastrous or condemned, consequently according to the nature of the case, non-receipt of the benefit of the punishment that should have been administered to the injurer /author of the injury/, non-receipt of satisfaction, non-receipt of other rights of whatsoever nature, for whatsoever due: evils opposite to the direct ends of judicial procedure: on the part of the opulent the admitted and plundered opulent, vexation, expense and delay, evils opposite to the incidental collateral ends of procedure.

There remain those /the evils opposite to the/ branches of the alternate collateral end: administration of punishment when undue: collation of rights, (imposition of correspondent obligations); administration of satisfaction, (imposition of correspondent obligations) where undue. But to show /exhibit/ the birth of this last triplet of evils, we have no /nothing/ more to do but to convey the indigent man from the station of demandant to that of defendant: deprived by the Judge of the faculty of defence, that faculty which the hand that stripped him of it, calls upon him to exercise he finds himself subjected of course to one or more of those burthens /afflictions/, according to the nature of the case.