13 Feb 1804

Evidence

Securities

Ch. Summary

Engl. Law

Of /In/ these four [...?] Tribunals (Courts of Conscience, Single Purpose[?], Courts Martial and Arbitration Courts) the composition /judicature/ might upon the[?] whole be bad in the extreme, and the system of /exclusive [...?]/ procedure, the natural system - pushed[?] in those Courts, be not the less indisputable.

The connection between the composition of the tribunal and its form of the evidence is altogether accidental. There can be no norm[?] in saying

There is no reason whatsoever. Why the absence of a Jury should prevent the evidence from being extracted in the best mode. Why the evidence should /must/ be extracted in a bad mode /way/, because no Jury is called in to hear it. Reasons might not be altogether wanting why a Jury should be less qualified than a professional Judge to decide upon hear nothing but written evidence: none can be given why a professional lawyer should be less qualified than a Jury for determining upon /judging from/ /hearing/ vivâ voce evidence. From the idea /In the notion/ of saving the time of professional men, clearly purchased /well paid/ as it is, no reason can be drawn /found/ for the difference. the time of a lawyer /dignitary of the law/ with the title of Lord Chief Justice is not thought too great a sacrifice, even with the addition of that of [...?] good men and true, for whose time no compensation at all is made or none that is adequate is made. Why should a thirteenth part of the time be looked upon as too much /too much/, because the functionary whose time it is, is called a chancellor.

On this as in other points what /whatever/ is established is what is most convenient. the existing order of things is that which is most convenient has but the conveniences not to the suitors but to lawyers. [...?] consulted is /had been/ not that of the suitors /suckers/, but that of the lawyers /man of law/. Stripped of the circumstances /[...?] which /of/ the securities for /pledges of its/ trustworthiness are composed, the evidence when in the written form is cleared of a number of incidents which would take up /have taken up so much/ time. As to the Judge, listening or appearing to listen to a bind roll /paper/ /string/ of written depositions or affidavits, all clothed in uniform /the uniform of law language/ he catches up on these occasions such woods /passages/ as the most prominent passages happen to strike him as most prominent, and bestows as little expense of thought /no more thought/ upon the subject than he finds convenient /feels himself disposed to share/. Had evidence on the same subject made its appearance /come before him/ in the dramatic form of vivâ voce examination, the audience would on their part have been bread[?] make, and their attention, all along, and upon the stretch would have commanded /called for/ an equally [...?] attention on the part of the Judge.