11 April 1805
Evidence
Securities
Ch. Procedure Technical
On the subject of law, as on any other subject The possession of a book or of a part of a book is of little /no/ use to a man, any further than as occasion calls upon to consult it, he is able to lay his hands on it. When the aggregate mass of the matter of law has searched[?] /been [...?]/ to a certain bulb, in such case by pulling it or leaving it or /and/ keeping it in such a state that no man who has not made a trade of the search[?], on a given occasion can be sufficiently assured of finding in it what he wants, things may be so ordered that even were the tenor of the law when discovered fixed and clear the necessity of applying to a professed searcher for the discovery of it, might still continue.
Fourth device of the technical system: - keeping the body of the law in the highest state of disorder possible.
2 April 1805
Evidence
Securities
Ch. Procedure Technical
Punishment
''. Technical System - No check to Mendacity
Under the technical system the matter is /matters are/ thus arranged.
Thus these are matters arranged. For mendacity, no punishment but where by the previous existence of an oath it has been previously converted into perjury. But, for the conversion /if converted/ of it into perjury, an oath must previously have been administered: but to /had/ a party an oath is not administered. ask why not; no answer is to be found. But in judicature, i.e. in judicature conducted upon this system, perjury is not understood to be the offence of any other person than a witness. Moreover no man ought to be a witness in his own cause: the station of party is one station: the station of witness is another; to a /the station of/ a witness the licence for /granted to/ mendacity does not extend: to the station of party it does extend: to a party, every thing is allowable. what a man says in the character of a witness, is testimony: in testimony mendacity is not allowable: what a man says in the character of a party, is more allegation: in allegation, it not being testimony, mendacity is allowable. Ask Cicero else; the greater teacher of moral duty: - concilium sit oratoribus, aliquid [...?] in [...?].
True it is that in certain instances a party is subjected to examination: and in the case of such examination mendacity is converted into perjury. But this is only in particular instances: and in these instances being considered as a witness, he is treated as such but in all these instances the jus mentiendi[?], the corner stone of the technical system is carefully preserved. In whatever is concluded as non allegation, the privilege of lying is carefully preserved. It is no check to lying, that secured[?] its privilege that on this or that particular occasion it is made punishable so long as there are occasions in which it is not punishable, and the number of those occasions is left to a man's choice.
2 April 1805
Evidence
Securities
Procedure Technical
Punishment
But costs of suit: especially is being paid by the party in the wrong, they include those of the adversary /his injured/ whom he has injured: - costs of suit - the obligation of paying them - does not this burthen operate with the effect of punishment: and does /is/ not this burthen increase with /augmented by/ any mendacious allegation with which a mala fide suitor torments his adversary?
I answer - by no means. In the first place this burthen - this punishment is not attached to the offence with any uniformity and steadiness.
In the next place, if it were ever so conformity, it would not yet have the effect of depriving mendacity of the included and necessary licence. Of every such allegation, whatever in respect of costs may be the ultimate effect, the unavoidable effect is to give rise /existence/ to /for/ the present, to the projected /preconstructed/ /predetermined/ /intended/ portion of delay, vexation and profitable expence: not forgetting that portion of the expence, which in the shape of profit, going into the profit of the man of law in all his varieties was the final cause of the establishment of the licence. But for the purpose of iniquity and oppression the present /immediate/ effect is all that is wanted: could the burthen of the suit be endured /borne/ to the last stage, the burthen of the expence might then be transferred or not transferred - but if transferred, never more than in part, from the oppressed to the oppressor: but before this can happen the intended victim is involved in ruin, in which be he plaintiff or defendant, is included the loss of the cause.
2 April 1805
Evidence
Securities
Ch. Punishment
The power of oppressing /oppression/ thus included in the [...?] mentioned thus given to parties thus given to allegations, is beyond measure more effective /more salutary to injustice, more fatal to justice/ than if given to testimony /testimonial [...?]/ given to witnesses in (viz: extraneous witnesses) and to parties in the character o f witnesses. By mendacious testimony, no point or [...?], any further than as it is believed /obtains evidence/: and being by the supposition mendacious /false/, the preponderant probability is that it will obtain evidence. gut that /in order that/ by means of these mendacious allegations a malâ fide suitor should gain his point, it is not necessary that the allegation should in the end have any the smallest chance of obtaining evidence. The object is to make the suit more as a certain length of way: viz: the length of way which in virtue of the pre-established order of things it travels of course in consequence of the exhibition of an allegation to that effect. This length of way it is sure to make: for the mother of this pre-established system - the Judge, for the purpose of holding himself warranted as subjecting the other party to take[?] the ulterior steps in question, the Judge, be the allegation ever so flagrantly mendacious is predetermined to take it for true /act as if it were true/ /believes it to be true/. or what comes to the same thing, to avoid seeing out the falsity of it, and to act in a manner in which /in point of justice and honesty/ he could not be warranted in acting, upon any other supposition than the certainty of its being true.
2 April 1805
Evidence
Securities
Ch. Procedure Technical
Punishment
Thus it is, that in every country, to the extent to /in/ which the technical system has been admitted /reigns/ /governs/ /bears sway/, and remains as a compleat /an effectual/ tyranny has been established /organized/ the tyranny of the opulent over the indigent: a sort of partnership tyranny, the profit of which, in an infinite[?] variety of unascertainable proportions, is divided between the oppressor and the contriver of the system, the man of law.
In every system of organization, physical or psychological, a capital principle of efficiency is simplicity. Accordingly in the present instance, nothing can be more simple than the fundamental principle: it consists in more inaction: in the [...?] to apply any check to mendacity in this shape.
6 April 1805
Evidence
Securities
Ch. Procedure Technical
''. Allegation is Evidence
So far as /concerns/ matter of fact is concerned whatever is or can be said by or on behalf of any party litigant, whether as of his own knowledge, or not as of his own knowledge, is still in its nature a mass or lot of evidence: if as of his own knowledge the more ordinary kind of evidence immediate evidence: if not as of his own knowledge, it is still evidence, though belonging to the head of makeshift, say for example Hearsay evidence.
The Plf is a shopkeeper. The defendant he says had goods without paying for them to the value of twenty days labour out of his ship: it is for this that he demands payment It was by the Plff above no other person knowing any thing about the matter that the goods were delivered, and so the Plff says in his allegation says, the evidence thus delivered by the Plff is immediate evidence: if it was by several of the Plff's, the plaintiff not professing to know any thing about the matter but from the report of the servant, the evidence given by the Plff in and by his allegation /the demand[?], whereby he alleges the existence/ of the cause of action, the evidence thus delivered by him is of the nature of makeshift - of Hearsay evidence.
in this case what he can not say and say with truth is that he knows the existence of the fact /is known to him/ of his own knowledge: - what he can say, and mendacity apart can say with truth, is - that the existence of the fact though not known by him of his own knowledge, is believed. If not believing it, he says that he believes it, if without oath, he is a liar: if under oath, a perjurer.
23 April 1805
Evidence
Securities
Ch. Procedure Technical
''. Allegation is Evidence
In fact, and probably /surely/ not without design, under the technical system allegation is carefully distinguished from evidence. Call it evidence, it might in case of mendacity, be punished /stand exposed to punishment/: call it allegation - bare allegation, a pretence is found, crude as it is, for exempting it from punishment. View it in the true point of view, view it otherwise than through the medium of habit and prejudice, the appellation of evidence belongs to it with no less propriety in the one case than in the other. In point of utility there is no better reason in this one case than in the other why mendacity should go without punishment or without shame, why a certainty of success should be secured to its endeavours /its exertions/. /or why it should be crowned before hand by a /the/ certainty of success./
Yes: evidence it is in both cases. In both cases it /the one case as well as in the other, it/is even capable of appearing in all sorts of shapes from the most trustworthy down to the least /that which is least so/ trustworthy. So what is called allegation the original allegation of the party is it of the nature of makeshift evidence? is it for example no more than Hearsay evidence? Thus it may be and often is: though not necessarily: but of this sort may be that which is called evidence, and yet be received have its weight and a weight sufficient of itself to decide the cause. Is it self-serving? but so is that which is called evidence: yet this is not only received /admitted/, but on a thousand occasions, and under the established system, admitted to be conclusive.
All that can be said is - that the allegations in a cause are very apt to be of the nature of Hearsay and other makeshift evidence, and that any may be accompanied with a just claim in cases where the witness the self-regarding witness the alleging party, has not been in a situation to add to such his transmitted evidence, any immediate evidence /testimony/ - any information derived from his own knowledge.
15 April 1805
Evidence
Securities
Ch. Procedure Techn.
''. Allegation is Evidence
What is curious, is - this sort of information /All the[?] which/ /incontinent[?]/, which is considered as not amounting to evidence - as not trustworthy enough to deserve the name of evidence - this information which is never considered as professing any /capable of acting with/ weight in the scale of evidence - which is never so much as received with the budget of evidence - to this very species /sort/ of information such a degree of power /efficiency/ - of effective power - is given - such a degree as is not /scarce/ in any case given to the most trustworthy article /lot/ of evidence. In no instance no article of evidence at least of testimonial evidence is considered as commanding the decision prayed /demanded/ for by the party by whom it is produced /sought for by the production /exhibition/ of it/. In every instance Information of this sort here in question - allegation - I mean allegation which constitutes the ground work of the cause is understood to exercise an absolute command over the decision or decisions sought for by the production /exhibition/ of it: or else, what courses exactly to the same thing, the same effect is made to take place - the same chain of burthensome obligations by some /a/ pre-established system of arrangements established either/ whether/ by the legislator, or by jurisprudential law acting in the place and during the shape of the legislator, is known /imposed/ upon the adverse /opposite/ party - the defendant, as would be thrown upon him by a corresponding chain of decisions specially adapted to each particular purpose.
To defend /of defending/ himself against the demand made upon him by the instrument of allegation by which the suit is commenced, shall cost a man for example /the expence shall amount for example under the system in question to/ a year and a half; income of an average individual: such then is the amount of the pecuniary burthen which under that system every man is empowered to impose upon any other - upon every other - by that sort of information - bare allegation - which is not understood /regarded/ to be sufficiently trustworthy to bear the name of evidence.
Note
( ) Under English jurisprudence, the expence on one side only - that of the df t for example amounts at its minimum to more than the quantum above exemplified.
15 April 1805
Evidence
Securities
Ch. Procedure Technical
''. Allegation is Evidence
Instead of 12 years' income propose to ground a decision bereaving the defendant, though it be but of 12 day's income, by a decision grounded on ex parte information in the shape and under the name of evidence, and under all the securities against falshood and deception that are regularly brought to bear upon whatever goes by the name of evidence, a man of law will /would/ stand aghast at the injustice: - bereave him of 365 times the amount or by a chain of decisions or preestablished arrangements having the effect of decisions, bereave him of 365 times the amount, on the ground of a bare allegation to which none of the securities against falshood and deception are suffered to apply, all this is perfectly right, consistent with the dictates of justice because consistent with the established course of judicature, and thence we are to understand of course, with the dictates of what goes by the name of justice.
Whence this[?] inconsistence? Whence this unsurmountable /invincible/ scrupulosity in the one case, this boundless facility in the other? from this, that because the exposing a man in the way in question to the chance of being unduly bereaved of the value of 12 day's labour, would besides the discredit that it might reflect upon the operations /arrangements/ /administration/ of the man of law deprive him of the profit attached to the admission of evidence on that side.
Whence this boundless facility in the other case? - From this, hat by /from/ his being dragged from the beginning to the end of the course of technical procedure bereaved of /out/ the value of 12 years' labour which has been squeezed out of him by the time that he has been dragged from the beginning to the end of a course of technical procedure, a great part, perhaps by far the greater part has been determined[?] by the multitudinous hands to feed the multitudinous mouths of the man of law.
+ Such then are the properties given to the [...?] /initiator/ of allegation - the instrument by which any man, as is [...?] given to it by any other man. be dragged through a suit at law. It is evidence, and it is not evidence: yes - evidence for the purpose of determining the fate of the adverse party, and with a degree of efficiency not allowed even to the strongest evidence: no. it is not evidence, to any such purpose as that of being subjected to any of the checks to which evidence is subjected.
15 April 1805
Evidence
Securities
Ch. Procedure Technical
''. Allegation is Evidence
The evidence by which the man of law is prompted to raise to its maximum the number of malâ fide suits has already been brought to view: that such should be /have been/ his endeavour is a natural, not to say a necessary consequence: in the encouragement - the efficiency coupled with the permitt[?] given on this occasion to the initiative mendacity, we may see the instrument employed by him, on this occasion, for this purpose.
What has thus been applied to the initiative instrument by which a suit is commenced on the part of the plff, applies with equal propriety to every other instrument and /as well as/ to every other step by which, on either side, the suit is continued and carried on: still the same indulgence, still the same encouragement, which to the malâ fide suitor, plff or defendant, is a sine quâ non, and for which a bonâ fide suitor has not, in either station, any use.