19 May 1805

Evidence Procedure

Introd

Ch. Procedure Natural

''. Plff's previous appearance

 Superseded - but [...?]

The appearance and examination of the complainant is matter /productive/ /[...?] will/ of vexation to the complainant with vexation in the first instance. This is sufficient reason for dispensing with it, where it can be dispensed with, without preponderant danger of greater vexation - vexation to the defendant- vexation in the second instance.

Without some security afforded by the plaintiff against undue vexation, the def t ought not to be subjected to the vexation of appearance. But the[?] examination, whether the def t` or the plff be the person subjected to it vexation is attached: then[?] concerned[?] to the plff, have, belonging to the public concerned[?] to the Judge.

Where the nature of the case, both as to demand[?] and title is so plain, as that there seems no reason to apprehend on the part of the demandant any such reason - suppose as shall be production[?] of [...?] vexation to the defendant, viz: by exacting a needless attendance on his part, in this case a formulary[?] may be provided, and to [...?] the time of the Judge, a subordinate officer being employed to administer the Oath the signature of the formulary by the demandant may be a sufficient warrant /ground/ for issuing to the def t a summons to appear at a fixed day, notified to the demandant at the same time. Examples. 1. Assaults. 2. Defamatory words: 3. Ordinary cases of debt for goods sold & delivered, work done &c.

19 May 1805

Procedure

Introd

Ch. Procedure Natural

''. Plff's previous appearance

By this arrangement however all that is secured[?] is the difference or value between the term of the subordinate officer, and that of the Judge. Without the securities in question, the defendant ought not to be subjected to the vexation: and to give this security the plaintiff must go somewhere to apply for the summons, and must speak with somebody: with the subordinate officer, if not with the Judge

Where the nature of the case is such as to fall short of this maximum of simplicity, then it is that it may be proper to require as a condition precedent to the summons or arms[?] of the def t one examination submitted to by the Plaintiff.

If he is examined it is not sufficient that he swear [...?] to his belief of the existence of one [...?] event in his favour, this should be examined as to his knowledge or belief in respect of all the several facts admitted as [...?] facts to his prejudice, - as constituting so many places[?] in bar[?] plaudible[?] by the defendant.

8 April 1805

Evidence

Securities

Ch. Procedure Natural

''.11. Advantages

Such are the first lines of the natural system of Procedure. It presents nothing remarkable: nothing to [...?] the attention: much less to captivate /lead capture/ the imagination: no mystery: no licence[?]. There is nothing in it beyond what every body has been used to /what every body is acquainted with:/: what every body is [...?] /equal/ to: what every body understands. It is like the prose which to his great surprize Monsieur Jourdan had been talking all his life long, without ever having noticed it. It serves /mentions/ no ends but those of justice: it answers nobodys purposes but those of the nation, answers no purpose but those of justice: it is good for nothing but for use.

Simple however as is this system, or rather because it is so simple, it is there and as well as there only this[?] perfection. The force of reason can no further go: Skill /Art/ may preserve it, skill may be requisite and indeed is requisite to preserve it, from being spoilt but it is not in the power of skill /art/ to improve it much less to make /go beyond it, and/ a better in its stead.

It is like water: its excellence lies in its [...?]. Water may be bad /impure/ in a thousand ways: it is only in one that it can be good /excellent/ /pure/. /it can be good only in one/.

28 March 1805

Evidence

Securities

Ch. Procedure Natural

''.11. Advantages

Such is the general outline of the natural system of procedure, the domestic mode rendered applicable to the purposes of public judicature by the addition of the requisite powers, and the enlargement of the scale - the extension of the field of action. In the /several/ succeeding /course/ chapters of this Book, the outline will be filled up, by bringing to view the particular arrangements which constitute the leading features of it. /of which the leading features of it are comprized./

In this natural system, when extended and fortified as above we shall perceive, in proportion as the several arrangements with the advantages, which constitute their respective reasons, are /come to be/ developed, the standard of perfection.

Nor yet /that/ a merely ideal standard, capable of being conceived, incapable of being realized in practice: but a system which actually is realized, in perhaps every country, in an extensive variety of instances, with inevitable success, and might be realized in all others, without any preponderant inconvenience.

Of the advantages belonging to this system, no conception could ever have been formed, still less /nor therefore/ any description given, but for the mischiefs which produced by the deviation that have been made from it. A general and consequently slight but not unimpressive sketch of these deviations will be found in a succeeding chapter under the head of the technical system of procedure.

8 April 1805

Evidence

Securities

Ch. Procedure Natural

'.12. Exemplified a Summary[?]

When perfection is /no name is/ spoken of, at least as being the result of human agency, then the mind[?] prepares itself of course for a journey to the region of non-entities: it looks to /for/ /figures to itself/ a state of things which either never existed at all, or has long ceased to exist, and at any rate neither will nor can exist in time future: [...?] the golden age, the age where Man received life, from the work of Prometheus, from the song of [...?] as from the chisel of [...?]/

Learned or unlearned, what /how/ will the [...?] say to himself at hearing /what will a man's [...?] be when he reads/, that in this most difficult department /branch/ of the most difficult science, the image of perfection is /examples of perfection are/ already and every where, before his eyes!

Happily for mankind, exemplifications of this perfection, though thinly scattered, and cramped in their extent, are still to be found every where. With all /Mark of/ their industry, backed by all their power, lawyers have in no country been able to obliterate altogether the footsteps of justice.

In the jurisprudence of every country you find a distinction applied /applying itself/ to modes of procedure, and expressed by some such terms as regular and summary. Under the head of summary, look for an exemplification of the natural system of procedure as above described. To this head belong for example in ci-[...?] France, the mode in use in what are called the Consular Courts.

In England - 1. The Courts held by Justices of Peace, acting singly, or though in number of one of [...?]. 2. Courts Martial. 3. Courts called Courts of Conscience for the recovery of small debts. 4. courts composed of Arbitrators acting under /with/ powers given by consent of parties under the authority of an Act of Parliament. +

+ V.b. 3. Ch.

 Add. 1. [...?] [...?].

2. Branch[?] Constitution Courts.

8 April 1805

Evidence

Securities

Ch. Procedure Natural

''.12. Exemplified in Summary

In all these Courts the natural, the domestic system /mode/ of procedure, not having been forbidden /prohibited by superior powers/, is pursued /[...?] places/ of course. They may be considered as so many asylums, so many little strongholds /fortresses/, in which justice has still been able to maintain herself /her ground/, after having been driven out of all the others /rest/ /driven out of all others/.

Note (a)

In all these several examples, the constitution of the Court is one point /thing/, the mode of procedure observed in it, another. In all these instances, to compare them one with another /if they be compared/ the constitution of the Court is various /different/. In each it may be better or worse adapted to the particular purpose: but /but in all these instances/ the mode /system/ of procedure pursued by /in/ them, is in principle the same. In all of them it includes /possesses/ the essential features above described /delineated/ /marked out/. The /In this or that instance, the/ constitution of the Court might be more less happily /[...?]/ composed: and if any imperfection in the /that/ constitution injustice, in one shape or other might be the occasional /casual/ result. But be the constitution of these Courts ever so imperfect, the mode of procedure pursued in them is not the less perfect. At any rate in the system /[.../] and [...?] of that system/ of procedure there is nothing to make injustice in any case certain, justice impossible: a property which will be found peculiar to them in contradistinction to the regular Courts.

The contrast /[...?]/ is in no small degree a striking one. /A striking contrast if ever there was one!/ A circumstance common to all these Courts - a very simple circumstance furnishes a clue, which diligently[?] pursued will lead /afford/ to the solution of every difficulty. In those Courts there are no Lawyers. The Judges who sit in them are not lawyers. In these Courts, the hostile and malicious assortment of professional lawyers, law-agents, is not forced upon the suitors.

12 June 1805

Evidence

Introd

Ch. Procedure Natural

'. [...?] Object n to [...?]

''. Objections to simultaneous personal appearance, in [...?], [...?] Judice[?].

In government, no arrangement that has not its inconveniences - none therefore that is not exposed to objections, which /that/, conclusive or inconclusive may be, are at least as far as they extend, well-grounded ones.

To the arrangement here in question, the following objection will be found the most plausible, as well as the most obvious. As far as they go, they have their weight: but might well be seen to be weight is but as a feather[?], when compared with the /those/ weights on the opposite scale.

1. What a vexation what a hardship! to an honest man, to be forced into a Court of Justice, kept there for any length of time, at the call of any dishonest man, and over and over again at the call of any number of dishonest men!

Answer 1. Be this as it may, this is no more than what in the character of a witness every man is exposed[?] to, ever has been, and ever will and must be. Which is the greatest hardship to a man? to suffer this /to bestow this labour/ about his own business, or to bestow the same labour about what is not his business?

2. Besides the vexation of months or years, to the two parties, by the simultaneous attendance of those two persons for a small part of a single day, the attendance of any number of persons in the character of witnesses may be saved - and this will be the case much oftener than otherwise. +

3. In any country labouring under the oppression /burthen/ of the technical system of procedure Where on the occasion of a suit at law, the subject of the vexation attached to personal attendance on the instance of either party, is started, the quantity /quantum/ of vexation that will be apt to present itself to the mind will naturally be the amount of that which the professional assistants of that party are obliged /undergo/ to bestow at present /and for which they are paid accordingly/. But the fact /truth/ is, that in all ordinary cases, the necessity for such attendance is, as to all but a trifling /comparatively inconsiderable/ portion of it, factitious; is created by the substitution of the technical system to the natural, and under the natural would have no existence: is created by the non-attendance of the parties, and therefore would not be created by /exist in case of/ their attendance.

+ In[?]

17 June 1805

Evidence

Introd

Ch. Procedure Natural

''. Confrontation Object n to [...?]

4. Personal attendance is under every existing system of procedure, i.e. in every nation more or less in use, and no where has it been felt as a hardship, or complained of as a grievance.

5. The mass of cases in which it is in use is every where composed principally of those in which the [...?] at stake has /is/ been least considerable: viz: those which are relinquished to what is called summary procedure. + Whatever then may be the degree of hardship attached to personal attendance, in which sort /class/ of cases is it most worthily bestowed? upon cases of the lightest importance or upon cases of the gravest importance? - If it were a grievance to a man to be obliged to attend part of a morning for an affair of ,10,000 how much greater would it be to be bound to an attendance of the same length for an affair of 10?

+ Infra. Summary.

12 June 1805

Evidence

Introd

Ch. Procedure Natural

''. Confrontation. Objection to [...?]

In England, though in point of aggregate pecuniary value, absolute value, the number of instances in which personal attendance o parties does take place is /may perhaps be/ inconsiderable, yet in point of number of causes, and thence relative /aggregative/ value, it would probably be found in a considerable degree the greater. +

5. As to the case where vexation in this shape (as supposed) is encreased to an indefinite extent by the /an indefinite/ multitude of persons joining, conforming /confederating/, for the purpose of producing it, and without cause under every system, technical or /as well as/ natural, more will be exposed to the afflicted[?] in this way, and without [...?] of redress /powers of prevention - satisfaction/ if no adequate means of prevention nor any adequate means of satisfaction are provided in relation to it. But as under the technical system it is not forgotten /not left without provision[?]/, still less would it under the natural.

Under the natural in the form here proposed, not one of the whole number of supposed conspirators /no single person in the character of plaintiff/ even attempt to inform[?] the defendant to his inconvenience /reaction/, without presenting himself /his [...?]/ ready to be subjected to the obligation /burthen/ of punishment or that of satisfaction or both in case of any misconduct on the part in relation to it: under the technical system, any number of conspirators may [...?] in imposing this burthen upon the individual marked out as the object of their opposition, every one /each of them/ without injured person subjecting himself to any such inconvenience or risk.

Under the natural system no such person can in the character of plaintiff take his chance for subjecting a man to any such vexation in the character of defendant, without having previously (not only previously subjected himself to the like vexation (which to him may perhaps be no hardship, though a previous one to the opposite side) but subjected himself to examination as to the cause and real demand for the imposition of the burthen, and thence to punishment as for perjury in case of mendacity in relation to such demand. Under the technical system no such security is afforded. (a)

+ In Ch. Summary.

(a) In the English system at least, except in particular cases.

12 June 1805

Procedure Evidence

Note

Introd

Ch. Procedure Natural

''. Confront. Object n to [...?]

 Addn Execution[?] of attendance [...?]

For the purpose by [...?] up /destroying or [...?]/ local judicature

Note (a) to p.3.

(a) In England, another answer, in no better character indeed than that of an argumentum ad hominum[?], but in that character an [...?] one /a faulty imperfect one and most appalling one/ /rather an/ might be offered /presented/ /submitted/ to an English Judge. You yourself as often as you had your name, for the purpose of giving commencement to a suit, address yourself by a written notice presented in the name of the King /the name of your King/ to the defendant, calling upon him in as explicit and pointed terms as the language can furnish /has to furnish you/, to appear before you in your Court: to appear not simply to appear (lest that according to the distorted[?] &[?] deceptitious language to which your predecessors have given currence[?] should be construed to mean not to appear but to send by some other person to appear by Attorney) not simply to appear but to appear personally to appear in person: and the better to confer this command you back it with the threat of a specific punishment, a pecuniary penalty to the amount of

100.