22 Mar. 1805
Evidence
Securities
Ch. Procedure Natural
In the bosom of a family An article of food, of clothing, the instrument employed in labour - being in the possession of one brother is claimed by another; possessor refuses /refusing/ to give it up, there common father is applied to, to say who shall have it. The father calls them both into his presence - each cites his story /states his case/; but each being partial to himself, neither of himself tells /brings forward/ any more of it than suits the purpose of his claim. But what each if left to himself would have kept back, each finds himself obliged to bring forward by a questions put to him for that purpose by the other - to these questions neither dares /ventures/ to refuse an answer, each seeing /forseeing/ that by [...?] common superior [...?] whose will the allowance or disallowance of the claim depends, that by their common superior, consciousness of wrong would be the inference drawn from silence. The disputed article /subject of the dispute/ is allotted /adjudged/ by the father to the complaining child /plaintiff, or to the defendant,/ or to the child complained against, as he sees fit. Thus we have the /In this representation we can see the/ model /rudiment/ /given/ and the exemplification of judicature, and of judicial procedure in cases of a non-penal nature.
I found some berries in yonder bush; I was gathering them and eating them when by Brother came up, and in a tone of anger called to /commanded/ me to be gone /bid me cease gathering/. I would have shared them with him but that would not satisfy him; he had discovered them he said before I had and they were his. Not finding me unmoved /Finding his anger unfettered[?]/, he fell upon me, struck me, and reduced me to the condition which you see. Make him suffer, as he has made me suffer, or he will continue thus repeating the ill usage, and I shall never be at peace. The father calls them together as before, hears what each has to say for himself, what each is forced to say by the questions put to him by the other; and punishes [...?] as he sees fit. Here we have the genre of penal judicature, of judicial procedure in causes of a penal nature, and in that form of penal procedure, which among German lawyers is distinguished by the name of accusatorial.
22 Mar 1805
Evidence
Securities
Ch. Procedure Natural
Returning home /On his return/ from the labours of the field /day/, a man finds a cart /an implement of husbandary/ broken, a horse badly wounded. Whence came the mischief? From the beast alone, or did /had/ any of the family bear /borne/ a part in it? Was /Came/ it by /from/ design, or accident; if by accident, had negligence /inattention/ or rashness any share in the production of it? and at any rate, to which and how many and which of the family is it to be imputed. He addresses himself to all together, or to one after another, putting to each such questions as occur to him in the first instance - or are suggested to him by the answers received to preceding /drawn forth by former/ questions. Here we have penal procedure in a form somewhat different and still more simple; the form many Germany lawyers distinguished by the name of inquisitorial.
The first steps taken consist in mere enquiry; if, in the process of the inquiry, circumstances are discovered which present this or that individual in the character of the apparent author of the mischief and that mischief accompanied with blame, the inquiry has the effect /assumes the character/ of accusation; but no person having presented himself in the character of an accuser, the function of the accuser is [...?] to that of judge. There is reason why it should; for among the whole family besides the head, no one being more affected by the inquiry than another, unless the inquiry were set on foot[?] and prosecuted by the parent Judge it might well happen to it not to be persecuted not to be set on foot[?] by any body; no questions tending to draw forth the information being sought, no information would be obtained; and mischief in that or other shapes, might continue to flow from the same source. This is no reason why the two factions should not be united; from such union what mischief /inconvenience/ is to be apprehended? By /By whom, and through the influence of/ what sinister interest should it be produced?
22 Mar. 1805
Evidence
Securities
Ch. Procedure Material
''.3. Application to [...?]
''.3. Application of the principle of the domestic system to the forensic.
In all this there is nothing that in point of wisdom goes beyond /was above/ the capacity /facilities/ or goes beyond the position of the rudest savage. In point o wisdom there is little remaining to be added by the wisest legislator /mere commands/. In power, yes; for of the father of a family, the power extends not beyond the circle /bosom/ of the family /family circle/; whereas there are states the power of which stretches /extends/ to the Antipides and encompasses the whole earth.
Upon a plan this /equally/simple, may judicial procedure /the principle of judicature/ in all those branches as above distinguished be conducted in a family /even in a state/ political /family/ of the largest size in by far the greater part of the causes of all sorts that present themselves; in a state /political/ family, however vast the size /bulk of it./
Upon a plan this simple a state continues to be conducted in certain instances /in relation to certain causes/, perhaps without an exception in /under/ the most enlightenment as well as the radical states /governments/. For this In this theme[?] for distinctions sake let us appropriate the dimminuation /appellation/of the natural plan or system of judicature or judicial procedure; for distinctions sake, to distinguish it from another, that too widely different, and of which there will be but too much say in the cause /within the compass/ of this work; this/the above/ the natural, the only natural form, and this the most simple mode of it procedure by simultaneous appearance, and viva voce intercourse; i.e. between the parties, in the presence of each other and the Judge; say for shortness procedure natural procedure, commencing by simultaneous appearance.
Note A
By appearance here I understand, what every man of [...?] commonsense would understand /understands/ by it, appearance of the party himself; not, unless for special cause, the appearance of another person, viz; a professional agent in his stead. As to [...?] it must be understood with this [...?], that in some cases the appearance and [...?] of the plaintiff may be a preliminary step to the simultaneous appearance of both parties.
3 April 1805
Evidence
Securities
Ch. Procedure Natural
''. Leading features
In this system four principal distinguishing features demand our notice: it is to these /them principally/ that it stands endebted for its exclusive conduciveness to the ends of justice.
1. In case of mendacity, the /a/ party is as much exposed to eventual punishment, as any extraneous witness. In the domestic procedure /system/, all are alike subject to /embraced by/ the power of the Judge.
2. Both parties facing one another in the presence of the Judge, each part of any mendacious /of any false/ allegation be altered[?] by him, and the mendacity of it be apparent or deducted, stands exposed to present shame.
3. Both parties facing one another in the presence of the Judge, each party is subject to vivâ voce examination by questions put to him at the instant, as well by the adverse party where there is one, as by the Judge: questions the object and tendency of which, in case of any deviation from the truth, is, by means of the answers thus extracted to bring it to light; in case of any deficiency produced by the suppression of any part of the truth in which the justice of the classes depends on either side, to supply it. /cause it to be supplied/.
4. Each party, seeing if for his advantage to which at the very outset the best case possible, because upon the then apparent goodness of his case would depend the reception thus given to his claim, each would naturally, and in general at that first stage do his utmost to bring to view in its fullest extent so much of the case that is of the facts or supposed facts contained in it, as were favourable to himself: and as all the facts belonging to it would be favourable either to one side or the other, by this means, between both, the whole of the case would thus, at that first stage, as far as depended upon the parties be brought into view of the Judge: and by the admissions made in each side at this first stage, all mendacious denials[?] running counter to such admissions /operating in extend [...?]/, would be barred.
9 April 1805
Evidence
Securities
Ch. Procedure Natural
''. Recapitulation
The minuter and [...?] lineaments of the system will be brought to view as we advance. At present let us take a [...?] view /simultaneous glance/ /look/ of the strong and discriminatory features upon which the difference between the /[...?]/ system, and the immeasurable size that are not natural principally terms.
1. At the very first or second stage the plaintiff in the presence of the Judge
2. stating, under the sanction of an oath, or at any rate /rather/ under the [...?] [...?] in case of mendacity, as in the case of an extraneous witness, what the facts are on which to ground his claim, and what reasons he has for looking upon them in time[?].
3. The plaintiff consequently /in course/ [...?] on these occasions, to hear questions put to him by the Judge, tending to rife[?] into the truth of the persuasion expressed by him in relation to those facts, and bound to make answer to all such question, on pain of seeing his claim disallowed, in case of silence.
4. If, at this first stage, the defendant happens likewise to be present, some obligation on the part of the Plaintiff to answer any such proper questions as may be put to him by the Defendant, in the same view[?].
The consequence is - that in a case where the claim is palpably destitute of foundation, it is in vain /it would be in vain/ for a Plaintiff unless prepared to encounter the danger of punishment for perjury to compel the defendant to undergo the expence or vexation of any further enquiry; whereas under the Natural system a man who neither has any foundation for his claim nor so much as conceives himself to have any, has it as fully in his power to cause the suit to go on and run out its utmost length, as if his claim were ever so notoriously just and undeniable. By this means /In this state of things/, all malá fide facts, that are such on the part of the plaintiff, are nipped in the bud before they have run any such length as to have produced expence or vexation to the defendant, unless where for the chance of being able to draw the suit out into further length, the Plaintiff is rash enough to encounter certain guilt, together with the [...?] of punishment as for perjury.
10 April 1805
Evidence
Securities
Ch. Procedure Natural
''. Recapitulation
On the part of the Defendant, the same obligations, mutates mutandis
26 Jan y 1805
Evidence
Securities
Ch. Procedure Natural
''. Mutual Declarations
''. Natural System. Procedure on first meeting. Mutual heads of declaration /Explanations/
So distinct in all its siniorities[?], the course taken, under the influence of this sinister interest by the system of procedure belongs not to the present work. What was here necessary, is here sufficient - the marking /presenting/ out that sinister interest as the original and efficient as /or/ well as final cause of so many phenomena which otherwise would be inexplicable: in particular of the [...?] of arrangements by which the efficacy of the natural system of procedure in respect of the security afforded by it for trust /the trustworthiness of evidence /against non decision or faction of justice on the ground of evidence/ has been weakened to a degree which will be but too apparent.
If /When/, at the commencement of every cause which admitts of such scrutiny[?], that is to say in nine causes out of ten, or nineteen out of twenty, the parties were to meet one another face to face, in the presence of the Judge, the facility which such meeting affords for the [...?] of both [...?] in the character of self serving witnesses, and the mutual cross examination of both in the same character /character of self-[...?] witnesses/ would constitute but a part of the advantage sooner done to justice. To each of them, whether he has happened to be in any such situation as will have enabled him to depose /act/ in the character of a witness, /delivery[?] direct and position testimony/ in relation to any of the facts in dispute, is in most sorts of causes a matter of accident. What is certain is as follows -
1. The Plaintiff will have it in his power to declare /make known/ in the face /presence/ of the Defendant as well as the Judge - what the act is, the performance of which is the [...?] he demands at the defendants hands - what the facts are on which he grounds such his demand, and what the article of law is which in his conception warrants it.
2. What the grounds are on which his persuasion of the truth of such several facts are founded: - his non perception[?] past or present - his own inferences from his own perceptions - the direct testimony of others, expression of the principles of those others - articles of real evidence, expressive of the testimony of things, articles of written evidence, expression of the evidence of persons through the medium of that of things - and so forth
26 Jan y 1805
Evidence
Securities
Ch. Procedure Natural
'' Mutual Declarations
3. In regard to the above several sources of evidence personal, real and written he will have it in his power to declare what he knows or believes of the places in which they respectively exist - and where any difficulty presents itself as to the ensuring them to be forthcoming for the purposes of justice, what he knows or believes concerning the nature of it and the means that offer themselves for the removal of it.
4. In regard to all these several facts of the truth of which he is persuaded by evidence other than that of his own personal presumptions, he will have it in his power to declare on in the face of the adversary as well as the Judge, the existence of such persuasion
5. In regard to the applicability /appropriate[ness?]/ of the law relied upon by him as above, he will have it in his power to declare the like persuasion.
6. Each declaration will according to the rules above laid down, be to be made, under the same security for its purity as well from [...?] as from mendacity, as in the case of those /such/ facts,if any, in respect of which his persuasion has his own personal presumption - the evidence of his own senses for the ground of it.
26 Jan y 1805
Evidence
Securities.
Ch. Procedure Natural
''. Mutual Declarations
7. The Defendant, on his part will have it in his power to declare in the first instance, whether he admitts the justice of the Plaintiff's claim, or contests it.
8. If he admitts it, he will declare at or within what time he will engage himself to render the service as admitted to be done: or in case of inability, to confess the inability, and state what hopes he has, if any of being able in any and what degree, term and manner to surmount it; together with the /all/ specific facts which constitute the foundation of those hopes.
9. If he contests the justice of the Plaintiff's claim, he will then have it in his power to state on what grounds whether he disbelieves the truth of any of the Plaintiff's facts the ground of the evidence indicated as above by the Plaintiff himself, or whether he has moreover any counter evidence to oppose to it in relation to the same facts, or whether he disputes /disbelieves/ the applicability of the Plaintiff's law to the Plaintiff's facts, to the purpose of the inference drawn by the Plaintiff in support of his claim, as above.
10. So whether believing or disbelieving all or any of the Plaintiff's facts as above, he [...?] upon some distinct fact, not asked by the Plaintiff, as being, in virtue of this or that article of law, of a nature to put an end to the justice of the Plaintiff's claim, although, but for such counter-fact, the justice of it might have been out of dispute.
In this latter case comes a counter claim, the grounds of which and the sincerity of the Defendant's persuasion in relation to them respectively, will be to be depend to, under the several heads of vexation, above brought to view in relation to the Plaintiff's case.
26 Jan 1805
Evidence
Securities
Ch. Procedure Natural
''. Beneficial Consequences
''. Beneficial consequences of these explanations.
If these explanations were regularly brought forward at the opening /outset/ of each cause, the day which saw /gave birth/ the commencement of the cause would in nine instances out of ten, a certain number for a purposely mendacious one, witness the conclusion of it: the expences and profit of professional assistance would in that case be on each side either superceded altogether, or confined within the compass of a single attendance so [...?], with or without a previous one in private.
When the cause, not being at that degree of simplicity was of a nature to require subsequent examinations vivâ-voce or in the correspondentual[?] way of correspondence - subsequent productions /exhibitions/ of real or written evidence, and so forth at subsequent and separate times, at any rate the quantity of delay /[...?]/, vexation and expence might be aimed at at least by conjecture, and provision made accordingly: the succeeding or at least the next succeeding times of attendance might be fixed - not as at present by blind and unbending rules, but by a measure taken from the term /at the disposal/ of the Judge, and the mutual ability in [...?] of the parties. Delay would thus take place, but only because it was unavoidable, and in proportion[?] as it was unavoidable: for the same cause, and in the same proportion, vexation and expences; and of expence that which assumed /what/ in the shape of profit to the man of law in all his varieties /various shapes/.