8 April 1805

Evidence

Securities

Ch. Procedure Technical

''. Allegation is evidence

continued

But, in the case in question, misdecision to the office in question is the certain result: it is prepared beforehand: deception is not necessary to it: right intellection[?] /true conception/ affords no remedy to it: it is the work not of the Judge, whose disavowal[?] if applicable /permitted/ to it /to act/ might have applied the remedy, but of the law: that is of /most commonly of jurisprudential law: that is, of/ the mischief or wickedness or weakness of his predecessors grown by sufferance into law. Here no deception is produced, for judgment /the judicial faculty of the judge/ is not permitted to take cognizance here[?] to exercise itself: not even is mis-decision produced: for the /here/ mischief springs up of its own accord, nor requires the aid of decision, fresh and individual decision, to give it birth to it. A mischief equal to what would have been produced by deception and misdecision united, is actually produced without either. It is not that injustice is more or less probable, but that, as against the injury in question, justice is impossible.

Of A certain set of proceedings an inquiry for example into the truth of a certain alleged fact the cost to the df t would be ,40: if upon allegation made by the plff of the existence of this fact, the inquiry takes place of course /by a preestablished arrangement of procedure/ the consequence to the defendant so long as the inquiry lasts, and for ever if no part of the money is ever replaced to him, is just the same as if at the instance of the plff he were condemned unheard in a fine to that amount. But in /under/ the existing technical system of procedure it is in the power of every man whatsoever to subject any other man whatsoever to certain suffering in this way. How? merely by delivering as, according to a preestablished form any one of the sorts of general allegations by which so many sorts of suits are regularly commenced. But under the existing system to deliver in any one of these forms of allegation is just as [...?] to a man who in his own instance[?] knows it not to have the smallest foundation in truth, as if the fact alleged had passed under his own eyes. Here stems under the technical system under which an open [...?] /every Court of justice/ is kept for the sale of [...?] oppressive licences in [...?] form the opulent man pays down his money for the licence, and the ruin of the indigent man his destined victim is the certain consequence. Under the natural system in a Court of [...?] or before a Justice of Peace, the intended victim standing opposite to him and looking him in the face, the very first question put to him would leave him [...?] without [...?...?] to say for himself, and his first care would be to [...?] out of that Court on [...?] [...?] triumphs.