8 April 1805
Evidence
Securities
Summary
Ch. Procedure Natural[?]
In these political tribunals, as in the domestic, so it has happened, procedure has had for its ends, the ends of justice. Awakened /Aroused/ out of his lethargy /trance/ by the fear of different /various/ necessities /necessity/, the legislator has exerted himself and rescued the suitor out of the hands of his natural enemies and licenced plunderers /depredators/.
In domestic judicature the system of procedure having the peace and comfort of the family for its object, and for its official cause the person[?] of the head of the family, lives the pursuit of that interest of the family for its final cause.
In that branch of political judicature, in /into/ /for/ which, forced by the urgency of the occasion, the legislator has prescribed or permitted the restoration of the natural mode, that is of /which is no more than/ the domestic mode constructed /acting only/ upon a larger scale, the system having in these instances too, few as they are, had the peace and comfort of the great /this enlarged/ family for its object, and for its efficient cause the power of the head of the family, acting in these four instances in pursuit of that object, and by its own advice /the light of its own wisdom/, has had /its/ the interest of that family for its final cause. add, and the welfare of the family, so far as concerned, for its final result.
Under the name /common denomination/ of technical procedure, let us comprehend once for all every system of procedure that has been the work of /from which the characteristic features of the natural, as above delineated are excluded: which is as much as to say every system of procedure which has been the work of lawyers./
Having for its efficient cause the power of lawyers - a vertical and [...?] power of legislation committed to them or rather abandoned to them by the negligence and imbecillity of the rightful legislator it could of course, and in virtue of the universally prevalent principles of human nature, have for its object the profit capable of being extended from suits [...?] from of the possessors of that power is its final cause.
12 June 1805
Evidence
Introd.
Ch. Summary
''.1.
Ch. Of Summary Procedure
''.1
I turn now with delight (and is there or can there ever be an honest man living who would not share in it?) yes with delight I turn to the contemplation of those instances in which elaborate and studied Injustice, has been forced to give back her conquests to simple Justice.
30 Jan y 1805
Evidence
Ch. Engl. Summary
''.1. Conscience
Ch. English Law. Summary Procedure.
Ordo. Summary not like[?][...?] Regular? its excellence consisting in exception from its defects of the Regular.
''.1. Courts of conscience
1. Summary procedure. N o 1. Procedure as in the Courts of Conscience.
1. Conscience
2. [...?]
3. Martial Military
4. Martial Naval
5. Arbitration
6. Bankrupts
7. [...?] opposing.
The composition of these Courts - the number and quality of the Judges - are nothing /points altogether foreign/ to the present purpose. They will be considered in their place By defects in relation to these points, the institutions instead of being beneficial in the degree [...?] by experience, might be bad upon the whole, and the superior excellence of the System /mode/ of procedure pursued in them remain not the less [...?].
The [...?] so conspicuous in the constitution of these courts in respect of the non-creation of that mass of factitious delay vexation and expence which is no more conducive to justice in one sort of court than in another is another feature, which important as it is belongs not to the present purpose.
Of the arrangements observed /pursued/ in these Courts such alone belong to the present purpose /head/ as concern the reception and extraction of testimony.
On this ground all that prodigious /monstrous/ mass of injustice which has been produced /had its origin /existence// by the sinister interests and prejudices of lawyers /men of law/ being excluded along with its authors /creators/ - all factitious /fictitious justice and/ injustice having been shut out, pure and natural justice, the offspring of common sense, takes place /its seat/ /chair/ of course. without effort, and as a matter of course.
31 Jan y 1805
Evidence
Securities
Ch. Engl. Summary
''.1. Conscience
The evidence-excluding rules (of which in the next book) being as [...?] /compleatly/ in this copy of the natural domestic tribunal as in the original, each man /party/ is admitted to tell his own /state his own/ story, neither party's story is conclusive: each party is admitted to speak the truth so far as it makes for him for himself, neither party is exempted from the obligation of speaking the truth where it makes against him.
Each party being put to his oath, or what comes to the same thing liable to be subjected to the law of that sanction /know his security that to that best at any time/ at a moments warning /upon the spot/, restraint can thus /by this/ be put upon insincerity and temerity, whatever security can be given for a mans being really persuaded of his having justice if his side takes place of course.
When a man comes to tell his own story to give his own evidence on his own behalf /favour/ which is what he must do when /so far as/ the facts which he relies on for the ground of his claim or counterclaim have fallen within the cognizance of his own senses, and of none but his, in such primary deposition there is no place for questions. Accordingly in this case which is a very common perhaps the most common one, the cause opens with a sort of statement or narrative, unbroken by questions on that side. If any questions are put to him by the opposite party the defendant, these questions bear of course the character and have the effect of adverse cross-examination. The defendant if he on his part has any fact to state on his own behalf, does so on his part, as the plaintiff did in his, and like him is subjected of course to the same process of cross-examination. The Judge on his part interposes, as often as he sees reason, by observations or by questions, as circumstances may require.
31 Jan y 1805
Evidence
Securities
Ch. Engl. Summary
''.2. Justices
''.2. Procedure before Justices of the Peace, out of General Sessions
Summary procedure. N o 2. Procedure before Justices of the peace, acting singly, or in the number of two or more, out of Sessions: - in causes in respect of which they profess definitive jurisdiction as well as preparative[?].
In the respect in question /to evidence/ this modification of summary procedure is nearly though not altogether upon a [...?] in point of perfection with the former. Nearly: because here justice not plunder by color[?] of justice having been the main object, the legislator acting, under the spur of public necessity /especially in pursuit of the ends of finance/, and by the light of common sense, without the advice and in despite of the resistance of his customary guides, has been himself the author. Nearly, not altogether: because here, it not having been practicable without still greater mischief to [.../] the business altogether form the cognizance of the man of law, the course of natural justice in this respect could not be preserved altogether from that disturbance /being distorted in some parts /here and there/ by scientific prejudice/, which it is sure to receive from technical prejudice
The principal disturbance however is of a sort which belongs not to the present head. It belongs to the head of Exclusion, and will be explained in detail in the book appropriated to that subject. It consists in the refusal to hear any man who knows any thing about the matter, upon any other terms /conditions/ than that of his acting without a motive.
31 Jan y 1805
Evidence
Ch. Engl. Summary
''.2. Justices
One point however there is in which this modification of summary procedure has been found to deviate /does deviate/ from the line of perfection, and which does belong to the present head. It is pregnant with instruction, to any eye that can endure the look at it. Here too the cause of the aberration is to be found, plainly and exclusively to be found in the baneful influence of regular /technical/ procedure.
Among the securities against falshood and mis-decision that which is afforded by the registration of the evidence has been noticed in its place. But of this operation what were the uses? One main use was the confining each subordinate judge within the scale of duty by the apprehension of the censure[?] from the superintending eye of a superior in office. In the arrangement thus proposed thus held up to view in the character of a proper one, his things were necessarily though tacitly supposed: that a system /line/ /course/ of procedure to be observed by /conformed be/ the subordinate had been chalked out for him; and that that course was a rational one, adapted to the several direct and collateral ends of justice. Unfortunately in English law neither of these conditions has ever been fulfilled. By making of laws[?] there is nothing at all to be got, at least by lawyers: by banishing as for the breach of laws, where laws are supposed to have been broken though [...?] were ever made /have as yet been made/, there is a great deal to be got, and to be got by lawyers. When guided by the light of natural justice a country gentleman /an unpaid Judge/, along with the purest intentions in the character of a Justice of peace, in execution of the same branch of the substantive law committed to his charge, had decided accordingly, entering upon paper and thus making known to all who chose to know, the grounds of his decision in respect of fact
31 Jan y 1805
Evidence
Securities
Ch. Engl. Summary
''.2. Justices
as well as law, all of a sudden he found himself prosecuted, and in due time punished. Punished? - and for what? For having broken this or that jurisprudential rule of procedure - this or that one of the number of that inexhaustible stock of laws that never had been made. What was to be done? Procedure put an absolute veto upon the attempt to serve the public on such terms: under the yoke of a tyranny, which from /by/ being itself exempt not only from punishment but from reproach of any kind was but so much the more intolerable. What was to be done? Either since security was to be given against [...?] of this kind, or every man who was most competent to this necessary branch of public service would shrink from it, and thus society would fall to pieces. The [...?] remedy[/] it is but repetition to say would have been to draw up a system of summary procedure, and that a rational one which is as much as to say such would have run counter in /throughout in opposition - to/ every point, and cast shame upon the regular /technical/ mode. For this as for all other tasks, a man of ability and willingness would have been necessary. Of willingness howsoever it might have been in respect of ability, not a particle was to be found any where among men of law of ability, not to speak of willingness adequate to such a labour including that of combating the inevitable opposition of men of law no sufficient stock was to be found elsewhere. On this occasion as on so many others, the resource was - to cut the knot instead of untying it. A blank form of conviction was to be drawn up for the use of the non-professional Judge, and that form filled up and signed, the judgment, unless in case of corruption or other criminal misconduct, was to be unassailable.
+ To untie the know would have required labour: to cut it required none.
+ (for this is among the cases in which adequate utility can scarce exist without willingness)
31 Jan y 1805
Evidence
Ch. Engl. Summary
''.2. Justices
Such has become /is now/ the usual course as often as one addition has been made to the plan of action of summary procedure: which is little less than to say as often almost as any considerable addition has been made to the body o the laws. Arbitrary power /Tyranny/, instead of being promoted is concealed /covered up/: and by being covered up encouraged: The expedient would be as indefensible as in default of the only proper one it is become necessary, if regular /technical/ procedure were not a worse nuisance /evil/ than any of those incongruities which, if the /a/ curtain were not thus let down /drawn/ before its eyes, it would pretend to rectify.
30 March 1805
Evidence
Ch. English Summary
''.3. Courts Martial
III Summary Procedure - N o 3. Procedure as in Courts Martial.
Land Military and Naval -
In the mode of enquiry pursued in these Courts there is not much to distinguish from the work pursued in the two preceding instances: but what there is is to its advantage.
In the Courts of Conscience or Requests, the evidence is not committed to writing: by accident, yes: but to do so, is not to any particular matter of express duty. In Courts Martial the evidence is constantly committed to writing: to execute this important task, is the duty /business/ of the presiding Judge, whose title - (importing a strange cause[?] of incompatible functions /duties/ as) Judge Advocate.
In the Courts constituted by Justices of Peace acting singly or in number out of Sessions, the mode of enquiry is, liable to be more or less obstructed by the technical rules of evidence. Why? because in one way or another in the way of non-penal revision, or on the occasion of a penal charge, the conduct of these subordinate magistrates is liable to be called in question by their learned superiors in the Kings Bench, by whom it will be judged of by those pernicious rules. The proceedings of Courts Martial not being in either way subject to be called in question in the King's Bench, justice in those Courts is not blasted by the baneful influence of those rules.
30 March 1805
Evidence
Ch. Engl. Summary
''.4. Arbitration
IV. Summary Procedure N o 4. Procedure before Arbitration.
This example /case/ is the more curious and the more valuable, inasmuch as it presents /takes its case in/ a Parliamentary recognition - a confession made by the legislature of the incongruity of the technical system:of that system which notwithstanding its incongruity it suffered to subsist. The protectors of the people rescued from the devourers /Harpies/ a part of their prey: but they wanted energy, or knew not how to recover the whole.