JB_162_008.xml

Title: [[clxii. 8] 1820. July 24 Emancipation]

Description: [clxii. 8]

1820. July 24

Emancipation Spanish

Summary

III. Appeal

- for sympathy. If Christians let the d o in this world be done by.

Yet if any such appeals be allowed, note well the consequence. The practice of receiving Appeals from any such distance, be the cause what it may, is an inexhaustable source of injustice and oppression: oppression inevitable, certain, boundless, irremediable: oppression such as is incapable of being produced by any other means.

By the expence unavoidably imposed on both parties, it has the effect of a compleat denial of justice to all who are unable to provide for that same expence: that is to all the inhabitants of the territory with the exception of a comparatively small number.

By the vexation and delay, in addition to the expence, it imposes a grievous burthen on the few who are not absolutely incapable of sustaining it.

By its effect on the body of evidence belonging to each litigation, it gives a prodigious chance in favour of misdecision as compared with right decision: a prodigious advantage to the bad side of the cause, whichever it be, to falsehood and deceit in their contest with truth and probity.

If witnesses are not permitted to be sent from the judicatory appealed from in Spanish America to the judicatory appealed to in Spain, it affords not to the judicatory in last resort those indispensable means for securing the trustworthiness of evidence which the subordinate judicature had or should have had at its command: namely eventual interrogation and counter interrogation by word of mouth, in the face of a public audience:- on a species of unpaid judicatory, which employing its inspecting vigilance, as a security against misconduct, through improbity or negligence, on the part of the Judge.

If witnesses are permitted to be sent, as above but only on condition of willingness on their part, it confines the benefit of the evidence to that one, if there be but one, of the two sides which is able to defray the expence: and even if they are sent on both sides, it opens the door to corruption to an indefinite amount on both sides; to corruption, on pretence of indemnity agaist expence, and loss of time, and thereby of the means of maintenance: of maintenance - not merely such as shall be sufficient for subsistence, but such as shall be proportioned to the rank of the witness in the scale of opulence: prospect of encrease included where the opulence is in a course of encrease.

JB_162_009.xml

Title: [[clxii. 9] 1820. July 24 Emancipation]

Description: [clxii. 9]

1820. July 24

Emancipation Spanish

Summary

III Appeals

1 In this way, in so far as success depends upon witnesses if the bad side of the cause is the only side that can afford to send material or the most material witnesses, or if it can send witnesses witnessess it may even without corruption make sure of a triumph over the good side./mor witnesses than the other then, those, even without need of corruption may the bad side make sure of its triumph over the good side./

3. Such is the effect of appeal on the supposition that witnesses are received along with it, but only on condition of their being voluntary ones: that is in some way or other interested ones. Will the case be bettered if they may be forced? If there exists any where a power of forcing individuals in the character of witnesses to repair from Spanish America to Spain, those by whom the power is possessed, possess in this way a power of inflicting banishment on any or all such individuals as stand comprised within the range of this same power of transmitting evidence.

In a case such as the above suppose the right of appeal given to a public prosecutor serving in Spanish America by appointment from Spain. The power of banishing Spanish Americans to Spain and thus ruining whoever it may be to his pleasure to ruin, is thus lodged in his hands. He institutes a groundless prosecution, a decision is given against him, he appeals from it. On the other hand suppose it (the right of appeal) given to and exercised by the Defendant: In a financial case, as above, what is to be his condition pending the Appeal? If Enlarged simply, then, if guilty he goes off with his effects. If enlarged no otherwise than on finding sponsors for his appearance before the judicatory appealed from, this Spanish American is, if unable to find such security kept in imprisonment even though innocent, till the definitive decision in Spain is pronounced. And in this case how is his cause to go on in Spain, he being thus incapacitated from attending to it?

So likewise in case of prosecution for a state offence, as above.

In each case, and on each side of the case, think of the consequences if the appeal is allowed to be made before the final judgment - made (that is to say) from an interlocutory (as it is called) or say an intermediate judgment: think of the consequence if in such a case appeal is allowed: think of the consequence if it is not allowed. What a door opened to injustice in both cases, to oppression on one side /part/ to evasion on the other part. Moreover in each sort of cause, and in each side of the [...?] what will be the consequence if, after judgment pronounced the execution thereof is to be suspended by the appeal? and what if it is to be provisionally performed notwithstanding the Appeal?

7. Note that the extent supposed as above to be given to the right and practice of receiving Appeals by and to a judicatory in Spain from a judicatory in Spanish America is the least that can be given to it: proportioned to any additional extent given to it must be the additional oppression injustice, sense of injury and tyranny, deposition to discontent, disaffection, disobedience, revolt.

JB_162_196.xml

Title: [1820 July 15 Emancipation Spanish]

Description: 1820 July 15

Emancipation Spanish

' Creoles repugnant

Think of the effect of it upon evidence: the very vital matter of each such cause. Witnesses - are they to be conveyed from the judicatory appealed from in America to the judicatory appealed to in Spain? Think of the small number of the instances in which men will be prevailed upon to quit their own pursuits for the purpose of a dispute between other parties: think how general the repugnance will be, the quantity of money which will be necessary to the surmounting of it, and the temptation into which by this more money the veracity and sincerity of the witness will be led. Think too how much in every case will depend upon the presence or absence of the ability to provide for this costly importation, and how little will be left to depend upon the justice of the case.

Think how incompleat and thence in the bad sense how partial, the body of the evidence thus collected will be likely to be.

Witnesses - is no such costly importation to be [...?]? Think how imperfect will be the means of judging /grounds of judicature/ left to the supreme judicatory to the judicatory of appeal in Spain. /to the judicatory on which the fate of the cause depends./ The faculty of counter-interrogation being, in this definitive stage of the procedure, utterly excluded, whatsoever untrustworthy evidence untrustworthy in form and thence in substance may have passed[?] in upon this definitive judicatory, will be received and trumpeted forth as unexceptionable

In case of reluctance witnesses shall they be compellable thus to submitt to banishment: to banishment and for an indefinable term?

In a penal case suppose a capital one

The public prosecuter to him too shall the right of appeal in penal cases be extended? In some countries he actually has or at least had it: but even in these cases not from distant dependencies: if he had, he would on condition of defraying the expense have an unlimited power of banishment. And here too would be another to add to the the number of cases in which it is not for being guilty but for being poor, that a man is punished.