JB_035_287_001.xml

Title: [8 June 1808 In a Court of Equity]

Description: 8 June 1808

In a Court of Equity where the individual from closer evidence is to be extracted

from is a party (the Defendant) the mode employable

(in that stage of the course at least) is

the epistolary mode only: where an extraneous witness,

the oral mode only, and thus in secret, neither

door shut against both parties party admitted, the questions put by a Clerk

to whom it is matter of indifference who cares not whether the answers be true or false.

In his one enquiry made by a Committee of either

House of Parliament, the two modes of examination —

oral and epistolary, either or both, are employed as

the nature of the case requires. And in a Court

of conscience, supposing the nature of the case to require

this course, there is nothing to prevent it.

2. Speaking of written evidence in the power custody

of the parties, and the powers computions employed by one

Equity Court for compelling the production of it

of an original proves to be vested in the Court Common Law

out of which the cause is sent in the only thing

wanting to render the practice of a Jury-trial

Court the modes of perfection in this time.

But by this preferred original power a document

thus necessary to justice would not be procurable,

but by a Motion with affidavits and counter-affidavits, and arguments with offered by counter-arguments — in a word by a cause within a cause.

Whereas in a Court of conscience all such documents lying

in such hands would be produced of course. You plaintiff

you keep books, you say: produce these books, or

take nothing by your plaint.

JB_094_274v.xml

Title: [[094-274v] 17 May 1806 *A]

Description: [094-274v]

17 May 1806

*A

Evidence

Note?

Exclusion II. Proper

Ch. Engl. Law & Vexation

'. to Judge

Note 2 (a)

(a) /Concise idea /Slight sketch/ of the/ Principal diversities respecting the mode of collecting testimony; the shapes in which it is exhibited in practice.

1. Natural ordinate mode: - the mode in use in Courts of Conscience, except in as far as cramped[?], by the terror of the technical Courts /- science[?] - and before a Justice of the Peace/ and before Arbitrators, Parties present: each testifying for himself, each, in answer to counter-interrogations put by the adversary, testifying against himself: extraneous witnesses examined on both sides by interrogations and counter-interrogations: the Judge also interposing with interrogations as he thinks proper: the Judge who decides upon the evidence the same person by and before whom it has thus been collected: - every thing delivered vivâ voce; but upon occasion capable of being consigned to writing. In case of necessity, assistants to the parties not excluded.

2. English Jury mode: - The same as above, except that unless in the instance of the defendant where the nature of the cause introduces him in the character of a prisoner, the presence of the parties is not required; their interposition in the character of parties for the purpose of interrogation and observation discontinued in the character of testifying witnesses, for and against themselves, not endured.

3. English epistolary mode: - examination, or [...?][...?][...?] - to the testimony of the Defendant only, not to that of the Plff or of any extraneous witness, in the English Courts of Equity: To Interrogatories delivered in writing, in an instrument called a Bill, on the behalf of one party, responses delivered in writing, /writing, in an instrument called an Answer,/ by the other. In point of reason and utility, this may be stated as necessary, be the subject of the suit what it may in some cases in the character of an eventual supplement, in some cases in that of a temporary, though never in that of an absolutely definitive, succedaneum, to the natural mode. In its own nature, who unless it be a lawyer, can need to be /the observation/, reminded, that no less applicable to plaintiffs than to Defendants; to extraneous witnesses than to parties?

JB_122_313_001.xml

Title: [13 Aug. 1808 Arrangements Suggested III.]

Description: 13 Aug. 1808 Arrangements Suggested III. Examine Accountants

4 Case of un-reasonable - the truth to the Crimes epistolary is turned over to Inspectors.

In the occasion of the individual Account which gave rise to these suggestions, through submission to this most searching as well as expeditious mode of scrutiny was offered - spontaneously and expressly offered - the offer was not accepted.

Of the quantity of vexation hath to be produced [+] [+] by the exclusion of this most expeditious as well as searching mode of collecting evidence by this such forbearance an example may be seen in the quantity actually produced in this same individual case.

Of the necessary communications withholden, as well as the irrelevent and on other accounts mindless questions put, and other requisitions made, a statement may be seen in the paper of Charges to which they have given birth. By a personal attendance and examination, had the offer on that head in that belief been accepted, all these sources of vexation could have been dried up at once.

The vexation which in that case would have been no more those which might increasing attendance would have contained.

Of the vexation that will have been actually produced, the part already included produced at different times incurred, reckoning the incidents arising out of it has been sufficient to fill up the space of considerably more than a month. As to the offer was there made, as above it amounted to nothing more than an eventual consent; no petition urging acceptance, being coupled with it. In fact I had no wish to see it accepted: my wishes being rather on the opposite side. Why? - because my object was to save as much as possible of time designed for other uses. What I took for granted was - that the unexceptionable evidence of extraneous witnesses, and that delivered in its best shape, would have received if not the same preference, at any rate the same acceptance in this as in the higher judicatories: in which case, the sources of this evidence having been already indicated by me in the first instance, viz. upon the face of the Account, a few lines from me, for the purpose of setting the times of attendance for the witnesses witnesses in the terms of their affidavits, would have been all that supposing the intercourse with an in the epistoliary mode, would have been necessary. On this supposition then by the acceptance of the offer no vexation, but rather a relief would have been produced.