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2 June 1806
EVID. Exclusion Introd. Ch. 1 Disregard Causes
§. Necessity of this topic.
1.
The evidence excluding system is a labyrinth: necessity of giving a clue to it: viz: an indication of the designs of the builders: the necessary result of their position. p.1
2.
Political evils are the joint result of imbecillity & improbity. For this system imbecillity wd not account without improbity – the two causes not altogether distinct – improbity produces imbecillity. p.1
3.
That the system of procedure has had the ends of justice for its ends: an assumption every where true natural, no where true. p.1
4.
In England more particularly false. p 1.
1(a)
Here the compression must be extreme. p.2
☞ in Causes
Ch. I.
An expiration of the universally
& conflicting corrupt state of the
predominant system of precedence
in every country, may be apt to appear
irrelevant, or at least of
no great importance to be
inserted in a book work confined
to the subject of evidence,
and in that to
the comparatively small
part of the ground occupied
by the doctrine of exclusions.
But it will be seen that
of that corrupt system where
in its totality, the doctrine
of exclusions constitutes a
fundamental part, a feature
altogether indispensable.
Without shewing the corrupt
nature and origin of their
system of precedence it would therefore be im possible to explain the cause
of the exclusion would not therefore be (therefore) have been explained nor therefore to give that to the mind of the reader that satisfaction which at first on every subject is practicable, he naturally looks for and is entitled to expect. , for sure.⊞1
⊞1 The mischief here in question
is among those discussed for
which without a all for cause but knowledge of charity
be known, it is wrong to
look out for a remedy.⊞2
⊞2 The without the course by
no harm done if along
with these grievances the
of so many other grievances be
pointed out; and if through the
grievances, a be
of the appropriate result.
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1.
Of the efficient cause of
the system of procedure,
one history will serve
in great measure for
the most civilized nations:
for the Roman system,
do. for the English. p 1.
2.
Settling the times &
mode & conditions of
procedure naturally fell
into the hands of Judges.
p 1.
3.
Fees were the only shape
in which retribution
cd be obtained. p. 1
4.
Their power enabled
them to pursue their
own interest in preference
to that of the public. p. 1
5.
Interest its branches –
maximum of provide (especially
pecuniary):
minimum of trouble.
p. 1
6.
Interest supported by
irresistible power opposite
to duty: in early times
it could not be otherwise
7.
The interest of the public
required that the ends of
justice should be pursued
– according to their respective
importance. p. 2
8
– of the individual that
those ends shd be constantly
sacrificed to it. p. 2
9.
To make the maximum
of profit from fees, it
was necessary to multiply
the occasion of receiving
fees. Judication the art
of making business
10
In making business
for the sake of the profit
extractable from the expence,
making vexation & delay
came on unavoidably. p. 2
Natural Courts – adopt
Like the man who used to hold
his suit away, to make hi, – If
like Alexander
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11
The Judge could not
make business and
profit for himself without
making it for
official subordinates, &
professional brethren.
Lawyers were thus
formed into a gang
acting by force or
fraud, as occasion
served. – Nor they a
rule a suit without his having
a benefit from it.
12
It is the common interest
of the gang that
the system of procedure
be as adverse to the
several ends of justice
i.e. be as bad as
possible. p. 3
13.
Under such a system
it is as natural to
lawyers to hate as to
others to love justice.
p 3
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Result – Technical, abuse toto
1
Two modes courses or
systems of procedure
1. The natural or domestic
the earliest
2. Then the technical made
by Judges under the influence
of the sinister interest
created by fees.
Courts of technical procedure
– of natural. Modifications
of technical procedure
in various countries all
out of the Roman or English. p 1
1(a)
Blackstone's epithet summary,
and instead of natural
not apposite p 1.
2.
System of English technical
procedure. For its contents
see the entire collection of
the Books of practice. p 2
3.
Natural system. Its
excellence consists in the
extreme simplicity of its
contents, the small space
they occupy consisting of
little more than the negation
of the contents of the technical.
A small addition wd be
necessary, but wd be sufficient
for occupying the whole
field of judicature. p. 12
4
The contents of the technical
are infinitely too bulky to
be exhibited here.
A few clauses, constituting
the leading & distinctive
features of it must suffice.
5.
Particulars in which they agree
1. All are found in the
technical system
2. None in the natural as restored
3. Thence they were as characteristic differences.
4. None are subservient to
any of the ends of justice
5. None but one in repugnancy
to those ends
6. None of which the mischievousness
wd not be betrayed
by any attempt to post
them to the natural
system.
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1-4, 1a, 1-3, 1, 1a, 2-5 |
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evid. exclusion introd. ch. 1 disregard causes |
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marginal summary sheet |
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john herbert koe |
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