12 June 1805
Evidence
Note continued
Introd.
Ch. Procedure Natural
''. Confront. Object n to [...?]
Note ( ) to p.2. continued
In proof of the property[?] and unvexatiousness of such personal attendance, were an argument to that effect presented to the English Judge, what answer would he have to make? The class of men to which I have the honour to belong as a class of men who only now and then mean what they say, and to whose word it is [...?] prudent to give evidence. The paper was signed by me[?] it is true, but like so many other papers which I am in the habit of signing like so many other [...?] which I am in the habit of making [...?] by solemn signature it is all /a [...?] of/ a falsehood from beginning to end. The King knew nothing of /about/ the matter: I myself knew as little: were the Defendant to come to me (in Court or out of Court - at that time or at another) I should refuse to hear him: were he not to come he would not suffer the penalty of ,100 or any other [...?] penalty: he would be [...?] and [...?] in an inexplicable[?] variety of other ways. What I mind he should do was to employ an Attorney, but the business might come before me, through the medium of my learned friends, in a regular way; a fact which any man may easily [...?] himself about, where [...?] he has [...?] to understood that my [...?] ends I am sure that fit to be believed. Therefore as the Attorney came instead of Client: act this[?] the Attorney himself were he to attend at the time and place at which I have thus commanded attendance to be paid; would be spoken to or suffered to speak any more than his client.
Jan 1805
Evidence
Securities
Procedure Technical
'.1. Established Practice
Introduction
Ch. General View Established Practice
Such being the possible securities for trustworthiness in evidence - the securities afforded by the nature of the case to the legislator whose intelligence may /in probity/ may make and prompt him to employ them, it remains to give a general view of the extent to which they have actually been employed by legislators in the existing state of things.
On this part as in every other of the field of evidence, I confine my view to the two most [...?] systems of [...?], the Roman and the English.
Look at which we will, the characters of imperfection /incompetence/ and inconsistency will be but too permanent and incontestable: In the Roman, the leading feature will be its radical and compleat incompetence: in the English, its infinitely diversified /variegated/ and still mere blamable /scandalized/ inconsistency. In the Roman, an invincible stupidity /blindness/, the fruit of long-rooted prejudices /practice/: in the English, what is most excellent what is but universally recognized as such in language: what is best and what is worst /the best and the worst/ what is most excellent and more absurd promiscuously employed in practice.
But the original adoption /growth/ of good and bad together, all the claim of wisdom is but too effectually disproved on the part of past generations of men of law: - by the persevering and promiscuous continuance of good and bad together the praise of probity - of the pure and genuine love of justice /all pure and genuine affection for both/ is but too [...?] disproved on the part of their successors.
14 Jan 1805
Evidence
Securities
Ch. Procedure Technical
'.1. Introduction
An excuse /apology/ - or rather a shadow of justification /reasonable cause/ presents itself, I mention it in this place /thus beforehand/ that to the and/ for the sake /purpose/ of judging of the truth of it /what foundation there may/ /whether there be any and what foundation first/, the topic may be all along kept in view. True: says the argument /it may be said/: in the arrangements pursued in regard to the mode of extraction, and other dispractice[?] trends in the view of securing the trustworthiness of evidence, great /very considerable/ variations may be observed: yes, but these variations are no more than the apposite variations called for by the correspondent variation observable of the different cases.
Alas no! A defence of this sort may present itself to a distant view, as a topic ready prepared in the [...?] of common place. But when /as/ the particular cases came to be looked at in this view, the inapplicability of it in each instance will be but too incontestable.
Of the features of excellence/ congruity/ above catalogued /collected/ and brought to view there is not one that is not copied form English law /its practice of English jurisprudence/: yet so all [...?] by the stock the talents bestowed by fortune been improved, that is the bare list of those features the contamination and disgrace of the English system may already have been read by every English lawyer of any such there be who to the [...?] has added the courage to contemplate it in so unwelcome a point of view.
So much for the man of law. He, if he durst, would be able to anticipate the contents of the succeeding pages. But for this same lawyer every thing will require to be proposed and had in order to his views /for his view/. +
+ Neither on the one part nor on the other will any thing but necessity - absolute includible /[...?]/ necessity, but to silence the [...?] /song/ of ill-deserved eulogy which from the first dawn of reason he has heard uttered from mouth to mouth by a chorus of entrusted[?] instructors[?] and their [...?].
26 Jan y 1805
Evidence
Securities
Ch. Procedure Technical
''. Parties unheard
Ch. Arrangement common to all technical systems - exclusion of the parties from the presence of the Judge.
Before we come to the display /bring to view/ of the leading features of the two rival systems, and thence consequently their marked points of difference, one feature /arrangement/ which they have in common is so fundamental a one, and so [...?] of every thing that follows, that unless it were stated in the first place /brought to view at the outset/, mist /a cloud of mystery would/ all the succeeding details would remain envelopped as it were in a mist. I mean the exclusion of the parties from the presence of the Judge.
The application of it, it is evident, extends not to all sorts of causes. It extends not to penal causes of the higher classes, in which the forthcomingness of the defendant is necessary in the first instance /as soon as it can be obtained/, to secure his forthcomingness at the concluding stage for the purpose of punishment. To penal suits of the lower ranks /inferior degrees/ it is neither unapplicable /inapplicable/ in its nature, nor unapplicable in practice. But those of the non-penal class causes between individual and individual /causes in which the public has no considerable interest/, those more especially which have property /in matter of wealth/ for their subject matter - those are the causes in which the existence of this feature is most uniform, and its effects upon the administration of justice or what goes by the name of justice most important and conspicuous.
The matter of fact, notorious as it is would remain wrapped up from first to last in a coat /veil/ of mystery, if at the outset, the causes of it, as well as final as well as as efficient[?], were not brought to view. Without this explanation the whole system is a riddle, and that riddle altogether an inexplicable one. Point out the cause, you gave the key to the riddle: every thing new is plain and clear: all is mystery and darkness are no more - the riddle /enigma/ is solved: /the enigma is drawn up:/ all mystery is at an end.
+ every arrangement that presents itself, is an effect without a cause
+ all [...?] circumstances are seen rising out of that first cause.
23 Mar. 1805
Evidence
Securities
Ch. Procedure Technical
''. Parties unheard
To violate the rule [...?] alteram partem - to refuse a hearing to either side, is mentioned in a proverbial way among men in general, but more especially among men of law not merely of iniquity /as the ultimate point of iniquity: - and/ but of that sort of iniquity, of which in the established systems an example is hardly to be found. Of this partial and incompleat /inconsummate/ iniquity examples are indeed but rare /not frequent/. But if the like iniquity doubled, doubled by being repeated upon both parties, in the established system so far are the examples from being rare, that the rare case is the finding[?] any here and there/ exceptions to the rule. To refuse a hearing to either party from first to last, by proxy /to his professional/ as well as in person /agents as well as himself/ is a sort of iniquity never practiced by men /the man/ of law. Why? because nothing would be to be got, on the contrary about a [...?] /a portion/ of the people would be lost by it. But the double of this iniquity. this refusing /refusal/ to hear so much as the agent of the party till the last stage, coupled with the refusal to hear the party himself at any stage, is an iniquity that is but too extensively in practice? - Why? because there is every thing /so much/ to be got by it: because in comparison of what is [...?] got by means of it what would be to be got without it is as nothing /little worth/.
23 Mar. 1805
Evidence
Securities
Ch. Procedure Technical
In every nation in which law has been considered as a science, men of law /the man of law/, with their eyes open, have organized this tyranny. The profit to be obtained by selling their services to the [...?], and on these terms rendering themselves the willing /blinded/ instruments of oppression, has been on this occasion their evident /as incontestably their manifest/ object, as well as their sure reward /it has been certainly their reward/. In this way, by means of real power, screened from odium /protected against odium/ by a covering of pretended science, they have in the bosom of every empire established /created/ an empire of their own and fore their own benefit. In what way the profit /plunder/ is shared by men of law of all shapes and all ranks, official as well as professional, and how compleat the [...?] is of Sinister /intimate the connexion is in point of sinister/ interest, are questions /inquiries/ that belong not to the present purpose.
3 March 1804
Evidence
Securities
Ch. Procedure Technical
''. Engl. Law
Declaration of bona fide - Examples
''. Duration of bona fides - Examples
In here and there an instance the torrent of mendacity and wilful injustice has been checked: checked in the only effectual way in which it could be checked, by bringing /attaching/ home the responsibility in case of mendacity, to the party profiting by it.
Till within the memory of persons still living, every man might have ensigned to prison in the first instance to prison every other, with or without the expence of falshood in respect of the general assertion implied in every legal claim, and without the expence of any particular averment, to which in case of mendacity, mendacity might be imputed. After the business had gone on for ages upon this failing, came at length the statute by which a man who thus consigns to prison another man for a supposed debt, is obliged to swear /make an averment/ in the shape of an /a written/ affidavit, that a debt to a certain amount is owing to him.
Other requisitions, may even be mentioned, which as far as they go are of the same tendency.
In Equity practice /procedure/ to a Bill of Interpleader, must be answered, on the part of the Plaintiff, an Affidavit of Non-collection: that is,
Go on with instances[?]
3 March 1804
Evidence
Securities
Ch. Procedure Technical
Declaration of bona fides
Examples
The torrent of mendacity has thus far been checked. But by the degree and mode in which the check has been applied, it affords a much more /less/ copious indication of the [...?] and industry /indifference and negligence/ of the legislator, it there were any such person, in the numerous and extensive instances in which neither this nor any other /it has not, any more than any other/ has been applied, than in the few and scanty instances in which it has ben applied.
On a general view, all these patches are but so many partial [...?] and those most palpably as well as deplorably inadequate to the manifest and only adequate /effectual/ remedy - personal appearance of the /both/ parties, in the face of each other and of the Judge, at the outset of the cause, in readiness to declare each at his own instance, and to be made to confess each at the instance of the adversary, under the sanction of an oath, whatsoever facts are pertinent to the cause, and the respectivity within their knowledge.
This and this alone saving only the few and [...?] exceptions which casual necessity prescribes - this and this alone is righteous and honest judicature: every thing else /other commencement of a cause/ had professional extortion for its object, has injustice - direct and collateral - injustice in all its shapes for its effect: direct, but too frequently; collateral in its triple shape of vexation, expense and delay constantly and invariably.
3 March 1804
Evidence
Securities
Ch. Procedure Technical
Declaration of bona fides
Examples
Note (a)
(a) As to the partial expedients, they are not only constructed upon a bad plan - but were according to their bad plan, badly executed.
The affidavit for holding to Court may serve as a sample of the rest. It requires much more candour than is consistent with evidence to suppose, that the lawyer by whom it was contrived had it really in his wish to carry the remedy a hairs breadth further than it was possible for him to avoid carrying it.
1. The debt must indeed be sworn to: but nothing like a negative is required to be put upon the existence of a set off; + so that in the case of mutual claims, the debtor upon the ballance has it as much in his power to employ this coercion for his creditor in this way, as the creditor to seek a necessary security against his debtor.
2. The coercion, if justifiable, is so on no other supposition than that of its being necessary to prevent the removal of the defendant through the apprehension of insolvency out of the reach of law /justice/. But no warrant /declaration/ on the part of the creditor is required, professing so much as the least apprehension /suspicion/ on his part that any such deficiency is to be apprehended.
It is for want of regulations /amendments/ thus obvious - thus plainly indicated by every days experience, that this power continues to be employed as an instrument of oppression under the eyes of these, to whom oppression in every shape, if the routine of language is to be believed, is the object of continual and inescapable /infrequent and implausible[?]/ abhorrence.
24 March 1805
Evidence
Securities
Ch. Procedure Technical
''.2.
Turning now /If now we turn/ to the groupe of established systems /established systems of judicial procedure/, a prospect of a very different appearance /complection/ will rise to view: deviations, not limited to two in number, and neither recurred[?] to without sufficient /[...?]/ /manifest/ and /as well as/ necessary cause, neither deviation less reconcilable them the very straightest course, to the aggregate of the ends of justice, deviations not thus few not thus necessary - but infinite in number, infinite in complication and agreeing on nothing but their opposition to every one of the ends of justice.
To distinguish from what is regarded as conformable to the course of nature to natural conceptions what is regarded as inconformable to it /their standard/, the word technical is in established use. Techno[?] is in the original french the word for art /[...?]/, inhuman[?], and, if the art be regarded as directed to an improper end, artifice. In natural history, a technical classification is opposed to a natural one, is under the purpose[?] of over-ruling necessity, the work of human /honest/ weakness, striving to lift up the veil of mystery spread by nature over her works /mysterious difficulty spread over the works of nature as if to cover her designs/. In jurisprudence more particularly in English jurisprudence every arrangement to which the word technical has ever been applied will be found to be the work originally of dishonest artifice, labouring in a distrust of its own creation in pursuit of its own sinister ends, repugnant /set up in opposition/ to the only legitimate ends of judicature, the ends of justice. The deviation, palpable as it is, from the ends /dictates/ of justice, is printed out /written in the plainest characters/ by the hand of nature, will of itself, to such a degree as is palpable, be but too conclusive evidence of the establishment /setting up/ of a sinister end in which the prospect /pursuit/ of the general plan of these deviations had its use. This sinister end is profit /will be found to be throughout the same/, in all its various shapes, money, consideration, power, but above all money to the contrivers and constructors of the system, in all their various capacities.