25 March 1805

Evidence

Securities

Ch. Procedure Technical

''. Security Proof

A hypocrite lawyer, whose intention /meaning/ were either to spoil /betray/ and disgrace the natural system, or to give to any technical system the appearance without the reality of its use /virtue/ in the character of a security against insecurity /self-conscious injustice/ and known injustice, would /might/ have purpose the institution /introduction/ of some such formulary as might be termed an oath of sincerity, analogous to the oath of calumny, or the [...?] expurgatorium or [...?] suppletorium of the Romanists. I swear, or I declare that I believe I have a just cause of action - I swear I declare, that I have a good defence: all this upon paper[?], out of sight of the adversary, out of sight of the Judge in some such general terms as here exhibited, and without specifying what the cause of action, what the ground of defence. Examples of the sort of sham remedy /security/ of this mask for insincerity are not altogether wanting in technical procedure.

I do not say that were this insipid /milk and water/ remedy, if applied to the extend of the demand would be altogether without its use. A Conscience there may here and there be, of so delicate a texture so delicate, as to be incapable of swallowing such a declaration, in the full and direct contemplation of the absence of all pretense of all [...?] to the advantage claimed by the plaint or the defence. But, of the comparative inadequacy of any such general /undetached/ and unscrutinized declaration a conception /preconception/ may easily be formed upon the bare view of it, and a conception that will receive ample confirmation in the course of the ensuing pages.

Of the securing thus afforded against mala fides ([...?] oh, that the thing was but as unknown to English practice as the name!) - I say with men of law /the [...?]/ for want of a name in English /an English denomination/ mala fide, there will be frequent occasion to make mention in the course of this work. On such occasions, (since there is no speaking of any thing without a name) proof of sincerity, or oath of sincerity may for [...?] be that name. But let it never be forgotten, that when speaking of this security in question /here in view/ by any such name, I mean not any /surely and simply a pre-appointed/ verbal formulary, devised /appropriated/ to this purpose, but the natural and necessary effect and virtue of the faculty of reciprocal interrogation [...?] judice, as confirmed of course in the parties by the natural system of procedure in its simplest /most simple/ and natural form as here designated.