7 May 1805
Evidence
Introd.
Ch. Procedure Natural
''.6. Modificat n necessary
Of this sort are the modifications really necessitated by the enlargement given to the scale. But by this circumstance does it in any degree necessitate or so much as exterminate[?] the introduction of these factitious evils of which so many examples from above been brought to view. Is it necessary That decisions should be arguments should be called for unveiled and decisions grounded on points avowedly foreign to the merits? that a good case fully proved should be proved over again by the same evidence?
that commands should be kept secret that more may be plundered for disobedience? that it should be [...?] that is punished for the fault or misfortune of Impronius[?] That the Judge should refuse to set eyes from either suiter, all [...?] him run the gauntlet for his hunger through a time[?] of accursed plunderers?
No, no, indeed., all this mixture /compound/ /mess/ of absurdity and wickedness /[...?]/ is the more conducive to the purposes of justice in a state, than it would be in a family; in those mansions[?] into which matter the wickedness or the folly of them has ever yet entertained a thought of forcing it. No: [...?] and laurel-water are no fitter for the victualling of an army or of a fleet, than they would be of a village or a cottage.
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
7 May 1805
Evidence
Introd.
Ch. Procedure Natural
''.6. Modificat n necessary
Of this sort are the modifications really necessitated by the enlargement given to the scale. But by this circumstance does it in any degree necessitate or so much as exterminate[?] the introduction of these factitious evils of which so many examples from above been brought to view. Is it necessary That decisions should be arguments should be called for unveiled and decisions grounded on points avowedly foreign to the merits? that a good case fully proved should be proved over again by the same evidence?
that commands should be kept secret that more may be plundered for disobedience? that it should be [...?] that is punished for the fault or misfortune of Impronius[?] That the Judge should refuse to set eyes from either suiter, all [...?] him run the gauntlet for his hunger through a time[?] of accursed plunderers?
No, no, indeed., all this mixture /compound/ /mess/ of absurdity and wickedness /[...?]/ is the more conducive to the purposes of justice in a state, than it would be in a family; in those mansions[?] into which matter the wickedness or the folly of them has ever yet entertained a thought of forcing it. No: [...?] and laurel-water are no fitter for the victualling of an army or of a fleet, than they would be of a village or a cottage.
22 Mar. 1805
Evidence
Securities
Ch. Procedure Natural
''.7. Extension for Distance
In the natural order of things, intervals are in such manner distributed over the face of the country that in each instance /of each/ the field /the [...?]/ of judicial authority is but the field /the [...?]/ of domestic labour /intercourse/ moderately enlarged. If so it be, that the abodes of both suitors be /are situated/ within the compass /[...?]/ of the same judicial district both have it in their power to repair to the judgment seat and to return to their own houses within the compass of the same day.
Such is /would probably be found to be/ the actual order of things issuing [...?] involved under the existing systems or even [...?] without any other exception than what is afforded by British /the British/ judicature
When therefore both parties have their habitation /abodes/ in the same judicial district, and that district of a moderate extent as above described, procedure commences by and carried on simultaneous appearance is no less practicable /favourable/ in political than in domestic judicature.
But within /under the government of the same sovereign/ within the [.../] of the same state, such is the extent of [...?] and such the dispersion of its /the provinces/ members in these /[...?]/ our times, it may happen that one province shall be situated in one part of the globe, another in another part so distinct as even to be opposite. In such a state of things Few it is evident, if any, are the causes the importance of which is sufficient that can make it worth while for a man to traverse spontaneously much less to forced to traverse so vast a distance. In dealing with a baker a man has omitted to pay for a loaf: in an altercation with a neighbour a man has lifted up his hand in a threatening gesture, or let drop an injurious word. All these acts are injuries, the two latter offences, trespasses in some sort against the public power. Not to redress these injuries is in each instance an injustice. But as gold, so may even justice be bought too dear. Such in the case of the forced voyage
22 Mar. 1805
Evidence
Securities
Ch. Procedure Natural
''.7. Extensions for Distance
voyage would be the amount of the collateral inconvenience, in the shape of vexation and expence, that its preponderance over the direct mischief consisting in the failure of justice, is obvious and undeniable
Suppose in the case of two parties, having their abodes in different judicial districts parcel of the same Empire, the plaintiff were to appoint as his agent a /another/ person having his above within the same judicial district as the proposed Defendant; which agent, summoning the defendant to appear /meet him/ at the tribunal of the district should meet him there as the plaintiff himself if present might would have done. Compared with the preceding this arrangement would be but a [...?], since though /while/ the agent of the plaintiff had the advantage of putting questions viva voce to the defendant, the defendant would be in possession of any corresponding means of extracting confessorial or self depressing evidence from the mouth of the plaintiff, so that on these terms the advantage would be all of it on one side. Under these circumstances however if the like faculty of facing and interrupting the adversary by proxy were given to the defendant, the inequality would at any rate be removed; though in this case whether justice /the avoidance of direct injustice/ would be worth the price paid for it by the inconvenience in the shape of vexation and expence, would depend upon the ratio of the mischief of the injustice, to the magnitude /collateral inconvenience/ of the price. In this case is the smaller modification of the system of natural procedure - of a system which notwithstanding the inconveniences attached to it is not the less natural, the inconvenience being in the nature of things [...?] natural procedure by reciprocal ex parte appearance [...?] [...?] /in the presence of the Judge/.
The case thus described may be bruised in case of exprovinciation: each of the parties being in a different province, in a state of exprovinciation, with reference to the other.
22 Mar. 1805
Evidence
Securities
Ch. Procedure Natural
''.7. Extensions for Distance
voyage would be the amount of the collateral inconvenience, in the shape of vexation and expence, that its preponderance over the direct mischief consisting in the failure of justice, is obvious and undeniable
Suppose in the case of two parties, having their abodes in different judicial districts parcel of the same Empire, the plaintiff were to appoint as his agent a /another/ person having his above within the same judicial district as the proposed Defendant; which agent, summoning the defendant to appear /meet him/ at the tribunal of the district should meet him there as the plaintiff himself if present might would have done. Compared with the preceding this arrangement would be but a [...?], since though /while/ the agent of the plaintiff had the advantage of putting questions viva voce to the defendant, the defendant would be in possession of any corresponding means of extracting confessorial or self depressing evidence from the mouth of the plaintiff, so that on these terms the advantage would be all of it on one side. Under these circumstances however if the like faculty of facing and interrupting the adversary by proxy were given to the defendant, the inequality would at any rate be removed; though in this case whether justice /the avoidance of direct injustice/ would be worth the price paid for it by the inconvenience in the shape of vexation and expence, would depend upon the ratio of the mischief of the injustice, to the magnitude /collateral inconvenience/ of the price. In this case is the smaller modification of the system of natural procedure - of a system which notwithstanding the inconveniences attached to it is not the less natural, the inconvenience being in the nature of things [...?] natural procedure by reciprocal ex parte appearance [...?] [...?] /in the presence of the Judge/.
The case thus described may be bruised in case of exprovinciation: each of the parties being in a different province, in a state of exprovinciation, with reference to the other.
22 Mar. 1805
Evidence
Securities
Ch. Procedure Natural
''. Extensions for Distance
But while the claimant /[...?] of one/ has his abode in the dominion of one state, that of another may be in the dominion of a different state. In this case no arrangements taken in either state alone can be sufficient to ensure that correspondence and reciprocity of advantage without which the procedure might [...?] be reconcilable to the interests /exigencies/ of justice.
Yet even in this case, so it happened, that the defendant although resident at the home within the dominion of a foreign state were by /in/ any no matter by what means in an adequate degree subject to the powers or influence of the state in which the plaintiff has his residence (suppose by immovable possessions, by [...?] [...?] and [...?], or by the extention of personal visitation) in such case if with the cognizance of the judicial authority of his own country letters fraught with pertinent /suitable/ questions were by the care of some agent of the plaintiff on the spot put into the hands of the defendant suitable sources might then be extracted from him, sources containing testimony, self-serving or self-[...?] testimony, [...?] with or without extraneous evidence, information constituting a different ground for a decision in the cause.
24 Mar. 1805
Evidence
Securities
Ch. Procedure Natural
''.7. Extensions for Distance
The above may be sen a slight /general/ outline of the natural system of procedure, in the first place in that original and most simple form or modification in which it coincides altogether with domestic judicature, in the next place in the two modifications of it which under corresponding circumstances, have necessity[?] that is avoidance of preponderant delay, expence and vexation, for their cause.
The filling up of this outline the full development of this system in its leading /essential/ feature the efficient[?] causes of its utility - of its submissive /its exclusive/ subservience to the ends of justice - will constitute the business of the present book: understand of such parts of the system - of such of the arrangements comprized in it, as have for their main object, the accomplishment of the direct end of judication, right /just/ decision, avoidance of misdecision: those which have for their object the accomplishment of the collateral end of judicature in any of its branches - viz: the reduction of inconvenience in the shape of delay vexation and expence to its least dimensions will no otherwise be brought to view here, than in as far as they are inextricably connected with the arrangements subservient to the direct end as above described /indicated/: by a shred [...?] their plan will be found in the Rationale of procedure.
24 March 1804
Evidence
Securities
Ch. Procedure Natural
''.7. Extensions for Distance
By a sort of loose preconception, and antecedently to any close investigation of the subject, it will be understood /conceived/ at half a glance, that in comparison of the first mode, the second is but a [...?], and again the third in comparison of the second: and that in proportion to their deviation from the all comprehensive and all efficient simplicity of the first, the two others have but /been/ divested of a portion of their efficiency with regard to the ends of judicature: that in the instance of the 2 d a certainty of additional delay vexation and expence, together with a chance of misdecision, over and above what /any that/ have place in the first: and that in the instance of the third, the diminution of the probability /[...?]/ of right decision - no other words the encrust of the probability of misdecision is the certain result, and the encrease of the quantum of delay vexation and expence, a further contingent, but /yet/ natural enough and but too probable result.
In these deviations from the present standard /model/ we see the result of necessity, as above explained /particularized/, and we see all the deviations that are capable of being justified on that ground /that can vouch necessary for their warrant and sufficient cause/. All the observations that in any way can be shewn to be subservient to the ends of justice - to the legitimate ends of judicature. Total[?] The[?] protraction[?] of this same cause is all that is necessitated by the source of [...?]
28 March 1805
Evidence
Securities
Ch. Procedure Natural
''. Judi. Powers necessary
But though the mode of enquiry that naturally takes place in domestic /the domestic/ judicature is a model which to the extent of it can not without injustice be departed from in political judicature, powers will readily present themselves without which the domestic judicial system can never with any sufficient appearance of efficiency /of adequate efficiency/ be applied to any such public purpose. These are
1. Powers for securing the forthcomingness of persons at whatsoever distance whether in the character of parties or of witnesses.
2. Powers for securing the forthcomingness of things, to the like extent whether in the character of sources of real evidence, or in the character of subjects or objects of property - elementary parts /components/ of the aggregate mass or stock of the matter of wealth, wheresoever situated, in other words for converting this matter of wealth into the matter of satisfaction - punishment in general pecuniary satisfaction, according to the nature of the case - (in as far as human frailty admitts).
3. Adequate powers of punishment adequate to the purpose of securing the veracity and verity on the part of persons (parties included) in the character of witnesses: including the power of subjecting mendacity, by the intervention of an oath /the ceremony/, to whatever may be the pains attached to perjury.
Such are the principal powers requisite for the making /rendering/ the domestic system of enquiry applicable with effect to the purposes of public judicature. But as to the mode of enquiry, it will not (it is evident) be the less entitled to the epithet of natural, whatever may be the powers superadded for the purpose of giving it effect when employed upon the enlarged scale of public judicature.
19 April 1805
Evidence
Securities
Ch. Procedure Natural or Summary
''. Assistants necessary
'. Mode 1. Arrangements necessary to be added to those of domestic procedure.
The appearance of parties does not suppose the exclusion of assistants: the weak in mind would be at the mercy of the strong, the [...?] of the knowing, the timid of the bold, the bashful of the impudent /forward/ /overbearing/, the tongue-tied of the loquacious /voluble/.
The assistants may be gratuitous or hired: the admission of one /either/ does not suppose the exclusion of the other: hired, where the importance of the suit, will pay for it /the expense/, where the trouble attached /degree of labour or difficulty attached/ to the service requires payment: where the party is not destitute of /unprovided with/ the means.
The appearance of the parties at the first meeting does not suppose the appearance of both or either, at every /each/ subsequent meeting: as with subsequent meeting, and in both instances, it will be called for or dispensed with, according to the exigency of the case, at the discretion of the Judge.
At the very first meeting, if the Judge does not prevaricate, and that grossly, more grossly than if dishonest /[...?]/ he would/ will easily find it safe to do, such a light /lighter/ will be thrown upon the case /cause/, as will oppose an effectual bar to any considerable quantity of [...?] delay, vexation or expense. At that first meeting each party is urged by his own interest to bring to view so much of the case as is favourable to himself: so that /and then/ between them, every part of the case will be naturally endeavoured to be brought forward as far as may be at that early stage.
19 April 1805
Evidence
Securities
Ch. Procedure Natural or Summary
''. Assistants necessary
Whichever party if either comes provided with any gratuitous assistant, the same desirable object will on that side have the same interest to promote it: for though in this cause the assistant in this has an equal interest in the event of the cause, he has the same interest in the dispatch of it.
As surely /clearly/ as it is the interest of the party and his gratuitous assistant to expedite the decision, as clearly is it that of the hired assistant to help it back as much as possible. But the Judge, being well approved of that interest /to whom that sinister interest is no secret/, will find by no less difficulty in frustrating any dangers[?] to which it may have given birth. Should the Judge be disposed to find in this his duty, the party prejudiced by such failure, will not, if possessed of a certain degree of intelligence, fail to perceive it. In his default, the like observation may present itself even to a bystander: and since neither in the instance of any [...?] party or bystander can the degree of intelligence be measured beforehand by the Judge, he will not generally speaking find it either easy or safe to belong to any learned friend the interest of the unlearned suitor to any learned friend.
A paper of advice to suitors, to put them upon their guard against the contrivances /[...?]/ which upon every favourable opening /opportunity/ would of course be played off upon as those in their view by their professional assistants, would be a proper supplement to any /every established/ system of Procedure that should really have for its object the ends of justice: and whatever particle of advice was thus given /addressed/under the name of advice to suitors, would in effect be a warning, a [...?] and a check to Attorneys, to Advocats, and to Judges. On all hands, success to dishonesty being hopeless, honesty would come of course.
19 April 1805
Evidence
Securities
Ch. Procedure Natural
''. Recapitulation
In some instances /sorts of cases/ it may be proper to abstain from referring a Defendant man so much as to be called upon to appear in the character of a Defendant, until the Plff has presented /undergone/ the test of his sincerity: in these cases the first hearing /stage/ will be an ex parte hearing /hearing/. This accordingly in the course in English law no prosecutions for small penalties before one or more Justices out of Sessions.
In other instances /sorts of cases/, at the instance of a Plff, and without his having been subjected to the previous test of sincerity, the first hearing may be a reciprocal one: both parties finding themselves at the same times and in the first stage of the cause, (unless the summons directed to the Def and simply appointing the term be regarded as the first stage in the presence of the Judge. this accordingly is the arrangement /course/ adopted /pursued/, in suits for small debts in the English Courts of Conscience.
In /Under/ this sort of arrangement a man is not in the character of defendant absolutely exempted from all vexation, resulting from /producible by/ mala fide on the part of the Plff, in the first instance: but the /such/ vexation it can not, previously to the application of the check, have proceeded beyond that first stage: and then no source[?] is the Defendant struck upon by the vexation, than there the Plff - the author of it is - to answer and make satisfaction for it.