26 Oct 1805
Evidence
Securities
Ch. Procedure Natural
''. Beneficial consequences
4. The mode of correspondence between the parties and the Court for the purpose of the cause /suit/ so long as it lasts /throughout the whole of its continuance/ may be settled at once /in the first instance/, without any of those [...?] of notice on the one side or supoenas[?] on the other, or expensive and yet inadequate securities against both, which under the existing systems are such pregnant sources of expence and vexation to the parties of injustice through misdecision to him who is in the right, and of business and profit to lawyers of all classes.
5. All the points in a cause will be brought forward at once for admission, or contestation, proof and decision at once, without being kept back to come out /as at present to be brought to view/ one after another in so may separate instruments of allegation for the benefit of the men of law who are employed in a variety of ways in the penning receipt, registration, examination, opposition or defence of them or in pronouncing judgment on the opposition and defence /them where thus opposed and defended/.
6. Almost all causes the commencement or continuance of which is produced by mala fides on either side would disappear out of the list: the security of each i.e. his opinion of the justness of his cause, including the truth of the matters[?] of fact on which he rests his claim counterclaim or defense, being established not by gratuitous assumption, (a) nor yet by vague declaration no general terms, (b) but [...?] not by questions put by the adverse /opposite/ party in relation to all particulars.
(a) As in English [...?] Law procedure in the Common Law Courts
(b) As is the Oath of calumny of the Romanists
26 Oct 1805
Evidence
Securities
Ch. Procedure Natural
''. Beneficial Consequences
7. Any number of causes between the same parties and touching upon the same evidence might thus bar various soever in their testimonial description or even real [...?] to be decided at the same hearing; and when it was not conclusive the evidence heard /received/ for the purpose of one cause might be employed pro tanto in any number of others.
8. In case of dubious or imperfect solvency on either side especially on the defendants +, measures may be taken for correcting dubious solvency into certain and immediate, and in case of imperfect solvency for presenting the effects /assets/ from being swallowed up by the men of law /either by lawyers/ to the prejudice of the creditors, or by one or a few creditors to the prejudice of the rest.
9. For the purpose of striking a ballance, conferring the payment to the amount of the ballance and reducing any number of suits to one, any number of counterclaims how various sources in their technical denomination or even their real nature may be if not decided upon, at any rate brought into view at once, to the extinction of that species of injustice which consists in the allowing to an insolvent person the benefit of his own claim which his insolvency, unfortunate or wilful, exempts him from the burthen of satisfying the /an/ equally rightful claim on the other side: - in other words the application of the principle of set-off would possess the whole extent marked out for it by justice, without being frittered down in an endless variety of ways by lawyers /men of law/ for the benefit of lawyers /men of law/.
26 Oct 1805
Evidence
Securities
Ch. Procedure Natural
''. Beneficial Consequences
10. The particular circumstances in respect of pecuniary and other matters /situation and circumstances and expectations in all mutual respects/ being thus ascertained /brought to view/ that particular mode of execution might in each individual instance be employed which should have been ascertained to be the best adapted to those circumstances; as being the most effectual and the least burthensome
11. So likewise for the eventual security of personal forthcomingness and justiciability responsibility to all purposes, on both sides, and especially on that of the Defendant in the cause: in general real security or vicarious personal responsibility /justiciability/ being employed in preference where attainable, corporal security by provisional imprisonment not without the previous ascertainment of the necessity for it in the hearing before the Judge.
Note
(a) In English procedure the means of execution are diversified by an infinity of modifications, each of them is of course of itself imperfect, all of them together an inexhaustible mine of the most flagrant injustice.
(b) In English procedure where the cause is not an unusual one, but the subject of it a mere /common/ debt as in the case of 19 causes out of 20, the defendant is consigned to prison in the first instance at the sole will of the plaintiff, without any cognizance [...?] by the Judge of the demand /on point of [...?]/ for vexation or procedure: the plaintiff is made to swear in general terms to the justness of his demand, but not even in general terms to so much as his opinion of the necessity of the remedy: and the remedy at [...?] open to him, though at the very [...?] he should have in his hands property of the defendants to ever so many times the value of the debt claimed.
26 Oct 1805
Evidence
Securities
Ch. Procedure Natural
''. Beneficial Consequences
12. It is by this means and this alone that any one object whatsoever of the class of things, moveable or immovable can be secured to the right owner against wilful destruction or deterioration or embezzlement. Brought into Court /before the Judge in the presence of the guilty/ before he has had time to compleat his dishonest purpose, he may be compelled to give effectual security for the production of the object in statu quo, to abide the work of the cause.
Note
(a) Under English procedure /In regard to things moveable/ affords no means whereby any cash article of under the value of ,10 can be removed by the owner on any terms: nor, if /though/ /when/ above that value, but by a mode of procedure which affords ample time to the wrongdoer /usurer/ to dispose of the thing as he pleases /according to his pleasure/, In regard to immovables, [...?] [...?] not be assimilated: but if it be any satisfaction to a /the/ wrongdoer to pull down a house, or destroy the beauty of a residence by cutting down trees, it is his own fault /he has nothing but his own [...?]/ if he does not compleat the mischief before what is called Equity has time to stop him. All that /For almost/ Common Law does for the party injured is to give him money under the name of damages; and it then rests with the wrongdoer to turn[?] the article to himself the price thus set upon it. The price is commonly /what is regarded at /as// the general marketable value; without regard to value of affection or other relative value: so that if the article be worth more to the wrongdoer than the price current to the wrongdoer himself, the difference is so much clear gain to his [...?] appetite: if it be worth more to his adversary the party injured, the difference is in favour of the wrongdoer so much clear gain to his irascible appetite.
According to Blackstone under the law of England, as one right there fore not a remedy: he would have been nearer the truth had he said no one right think has its remedy. A point on which the law of England is probably more definite than that of any other nation is mentioned by law as among the chief of such of its peculiar excellence. The most efficient of all existing /established/ systems for the benefit of those by whom and for whose use it has really been made, it is of all systems the [...?] and most helpless for the benefit /[...?]/ of those for whose use it has been pretended to be made.
26 Oct 1805
Evidence
Security
Ch. Procedure Natural
Beneficial Consequences
13. It is by this means and this alone that the defendant may be secured against remediless vexation from the malice of /vexation inflicted without remedy by/ a malâ fide plaintiff. A man who can not avoid being forthcoming in his own person, ready to abide whatever in case of mal-practice may be his [...?], can have nothing to gain or to lose from the subjecting of his adversary to the same inconvenience at the same time. (a)
Note
(a) Under English Law a man /wrongdoer/ whose intention it is for this or any other purpose to leave the country, may by securing upon his adversary, with or without plausible ground a debt beyond what he can find bail for, consign him to prison, and without danger to himself, for years or for life: as he may leave him loaded with cash dispose[?] without possibility of relief.
7 May 1805
Evidence
Introd.
Ch. 12 Procedure Natural
''.6. Modification necessary
Procedure 1. Powers. 2 [...?]
+ Ch. or ''. Modification necessary to fit /adapt/ the domestic System to the purposes of political judicature.
On considering the domestic system of procedure
On considering with a view to its application to the exigencies /field of action/ of a political community the course /system/ of judicature pursued /observed/ in a family two considerations /reflections/ /[...?]/ /observations/ strike at once upon the mind: how beneficial it would be /it would be in the highest degree/ could /that/ any such extended application should take place; and how /that/ impracticable /impossible/ it is that, without considerable addition /modifications/ and alterations, it should be enabled to fulfil the main ends /be [...?] to the fulfilment of the aggregate mass of the ends/ of justice.
Vexation, unnecessary or preponderant, none: expence, absolutely none: delay, none but what is absolutely necessary to the establishment of the justice of the demand /classes/ of just, of the fact of its not being done, of its injustice if not done. This much as to the collateral incidental ends of judicature and as to the [...?] ends, with their counterparts the collateral ultimate ends, if the fulfilment of those ends is, in respect of its certainty, necessarily subjected to those contingencies which have their rest in psychological [...?], at any rate it finds out in its every [...?] fictitious /artificial/ laws set up in such a manner as to render it impossible.
Modifications the family system certainly requires to have undergone, in it can be rendered subservient /have been adapted/ to political purposes: but the modification /when as [...?] about,/ will be found to be rather in denomination than /names than/ in substance, the changes in denomination amounting to little more than what results of necessity from the enlargement of the field of action, from the encreased magnitude of the scale.
7 May 1805
Evidence
Introd.
Ch.12. Procedure Natural
''.6. Modifications necessary
1. Of the terms of the father of a family /In a family/, a part, and that a very small one /of the name of the father or other Master/ suffices for every purpose /all occasions/ of judicature for the administration of domestic justice. In a political state that function requires the whole time not of one person only, but even in the smallest state of a considerable number of persons called Judges, together with others to act under their orders.
To secure forthcomingness on the part of the subordinate members of the community, as well in the character of witnesses as of parties - to secure actual justiciability on their part in the character of rectors, s no less necessary to the judicature of a family than to the judicature of the most extensive emperor. But in the family these special powers are certainly /insuperably/ included under that general mass of power which in that [...?] field of action is planted by the hand of nature. But /It is/ where the field is thus enlarged, distinct powers of this nature necessarily spring up, distinct powers, exercised /[...?]/ by different hands, and thence necessary to be distinguished by different names.
The securing in so far as it can be secured the negative values of veracity the absence of falshood as will through [...?] as through mendacity on the part of each person /individual/ heard in the character of a witness is another object the accomplishment of which is still provided for, as effectually as by any means to be provided for, by the general fund of paternal or [...?] power without the need of any distinct appropriation. But in the great family of the /a/ state to make for this purpose a provision as adequate to the purpose as in the former case requires the institution of an appropriate fund of punishment, with powers for the application of it.
7 May 1805
Evidence
Introd.
Ch.12. Procedure Natural
''.6. Modifications necessary
In the circle of a private family, living under the same roof under the eyes of a common father or master, the most intricate disputes involve little complication: the imbecillity of infancy once outgrown the weakest member is not unable to advocate his own cause: to advance /bring to view/ what is necessary to prove his claim just if it be just, or to defend himself against loss, trouble or punishment if undue Among the disputes /opposite pretensions/ which arise between family and family /one houshold and another/ some will every now and then arise /start [...?]/ in which the pretensions of the contending parties, how sincere soever on one or both sides, will on one or both sides be too intricate to be placed in their proper light without extraneous assistance. If assistance for this purpose, and that adequate to the purpose be obtainable without remuneration of the domestic or other connections of the litigate afford him /supply him with/ a patron an unpaid patron /advocate/ able and willing /who to the instruction adds the power/ and able of placing the claim in its proper light, it is well /so much the better/: but if not, the /either the requisite/ labor and skill must be paid for, or injustice must take the place of justice. To acquire a skill of this sort adequate to the indiscriminate[?] exigencies of all persons by whom the effectual demand for it may come to be presented, will under the most simple and perfect system of procedure imaginable require previous mental preparation will require the previous employment of as inconsiderable a portion of human /a man's/ state[?].
Nature[?] /appendage/ /additional/ to be added to domestic procedure to fit it for political purposes. Professional assistance /service/ rendered by a class of labourers who for appropriate /suitable/ wages are content to render it to whosoever presents an effectual demand for it.
7 May 1805
Evidence
Introd.
Ch.12. Procedure Natural
''. Modifications necessary
Space and Time receives enlargement almost without stint, where transferred from the private to the public theatre. In many a private family, the ordinary field of action extends not beyond the compass of the human voice: in many a political community it covers /spreads over/ the surface of the whole globe. In a private family, a few minutes or even a few moments will carry /suffice to convey/ the mandates of the superior member to the ears of a subordinate: in a political family months or even years may be more sufficient for the purpose. In a private family to bring the litigant members face to face in the presence of the Judge, is an incident that for its accomplishment requires neither vocation nor expences nor of term any greater portion /[...?]/ than what is included in a few hours, minutes, or even moments. In a political state /family/ in which it may often happen to a co-litigant pair of members to be separated from each other by a space equal to half the circumference of the globe a meeting thus desirable for the purposes of justice may for months or even years not be within the sphere of physical possibility, nor at the end of that term, without a mass of vexation and expence, some thousands of times beyond the value of the right or supposed transgression in dispute. At the same time the meeting which as between the parties themselves is would thus be either impossible or attended with a preponderant load of vexation, expense and delay, may, as between each of the parties and the paid or unpaid agent of the other, be not only possible and practicable but free from any such load.
Feature /additional to [...?]/ of domestic procedure to fit it for political purposes. reciprocal ex parte appearance [...?] justice. +
7 May 1805
Evidence
Introd.
Ch. Procedure Natural
''.6. Modificat n necessary