date

[036-158v] 1821 Nov. 26 Codification
[036-158v]

1821 Nov. 26

Codification Proposal

'.5 Draughtsman single

Codification in so far as comprehensive will exclude some of these evils, nullify the bad effects of the sinister interest: still however more or less opportunity of obtaining its ends will remain

One sinister interest there is which is common to all countries, and which can scarce fail to have place and operation and more or less influence in a body of this sort /thus circumstanced/ This is the interest of the lawyer class as such

On this occasion in speaking of the lawyer class it will be necessary to speak of them /consider them/ /can not be otherwise spoken of than/ as constituting one and the same /compact/ body having in all points one common interest, and that as will be seen a sinister one. Such in every country which a proposal such as this can look for acceptance is as yet the case: no man being a Judge who has not been an Advocate. In the hitherto existing state of the law this connection has been unavoidable: it is not in itself a necessary one. It will not be so in any country in which an all comprehensive and rationalized body of law executed as it is capable of being /might be/ is[?] constituted Of the direction /course/ in and of the force with which this sinister interest acts some intimation must be given, or the proof of the inaptitude of the ordinary authorities with reference to a work such as that in question would rest very incompleat would want much of the force which the nature of the case has given to it.

It is the interest of the greatest number that the state /purport/ of the law being as highly contributory as possible to the happiness of the greatest number the decision of the Judge should in each instance be as closely conformable as possible to the direction given by the text of the law, that so the power of the Judge be in as small a degree arbitrary as possible: that so the power possessed by the Judge of giving to each suit a result different from that intended by the legislature be as small as possible. in a word that the aggregate quantity of misdecision and undue refusal of decision be as small as possible It is the interest of the Judge that the power he has in his hands be as arbitrary as possible: that the fate of the suit /each cause/ be as compleatly dependent upon his particular will as possible. In a word it is the interest of the Judge that the aggregate amount of indecision and undue decision on his part at the suggestion of /in conformity/a sinister interest or prejudice of his own be as great as possible.

As this is the interest of the Judge as such that the fate of each cause or suit be as compleatly dependent upon his particular will as possible, so is /the like is/ it the interest of the lawyer of every other class

But in case of collision it is only by accident that the lawyer of any other denomination can cause his will to have effect in contrariety /opposition/ to that of the Judge.
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    Lawyers have double sinister interest: 1 as Lawyers, 2 as members of the Aristocracy; connected with the others.

    One sinister interest there is, which is common to all countries and sure to have place in a body of this sort. This is the interest of the Lawyer class. It is their interest that the number of suits be as great as possible: it is their interest that the expensiveness of each suit be as great as possible. It is their interest that their influence in the event of each suit be as great as possible. That the number of suits may be as great as possible it is their interest that the purport of the law taken © the whole together be as little known as possible: that, to this end, over the greatest portion possible of the fields of law & judicial decision, no real law shall have place: and that the place of it be in each man's mind be supplied by an Article of imaginary law, composed of a conjecture, what, in case of litigation, the decision of the Judge will be: the Judge being, by the non©existence of real law, left at liberty to feign the existence of an imaginary law, framed by him on each occasion: feigned by him for the purpose of affording a warrant, for whatever decision happens to be best©suited to his purpose. It is their interest, that to this same end what patches there are of real law stuck upon the all©comprehensive ground of imaginary law may separately taken be expressed in words and phrases, as obscure and ambiguous as possible and in the whole together in masses as enlarged and confused [?] as possible.

    To the same end it is their interest that the terms in which expression is given to that portion of the rule of action which is in the state of imaginary law, and thence to that which is in the state of real law should in as large a proportion as possible be either word of their own fabricating to which no idea can be annexed by those whose lot they dispose of, or of words in common use to which in their discourses they attach a meaning different from that which is attached to them in common use: in such sort that whoso attaches to them the meaning in common use and conducts himself accordingly, may fall into the snare /be deceived/, and be involved in litigation
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    I. It is the interest of the community at large /greatest number/, that while the facility of obtaining the service due from Judges to suitors be as great as possible, the number of instances in which application is actually made for it be as small as possible: that thus the aggregate /the quantity/ of the evils of litigation namely, expence delay and vexation be as small as possible. It is the interest of the lawyer class that the number of these applications be as great as possible: that so of the quantity /aggregate/ of the expence the portion /the quantity of/ which in the shape of professional profit comes into their hands may be as great as possible.

    II. It is the interest of the greatest number that the expence attendant on those same applications be as small as possible It is the interest of the lawyer class that the quantity of their profit be as great as possible, and thence that the expence to which their profit bears a proportion /every part of the expence by which their profit is encreased/ be as great as possible

    As it is the interest of the greatest number that, consistently with the utmost facility of demand and defence the number of suits of all sorts be as small as possible, so is it the interest that of all circumstances the effect /tendency/ of which is to give encrease to the number the force should be as small as possible. For the same /opposite/ reason it is the interest of the lawyer class that that force be as great as possible.
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    III Lawyers interest

    In regard to the number of such of all sorts, it is the interest of the greatest number of the community, that while the facility of obtaining the service due from Judges to the people /members of the community/ in the character of [...?] is as great as possible, the number of instances in which application is actually made for it be as small as possible: that thus the aggregate mass of evils of litigation namely expence, vexation and delay be as small as possible. It is the interest of the lawyer class that this mass be as great as possible, for the sake of that portion of the expence which goes into lawyers pockets in the shape of profit.

    As it is the interest of the greatest number that of every thing the effect of which is to give encrease to the aggregate amount of the mass of evils opposite to justice namely misdecision under litigation, [...?] non©decision expence vexation and delay the quantity /aggregate amount/ in so far as it is productive of these mischievous effects be as small as possible, so it is the interest of the lawyer class that the quantity of evil in these several shapes be as great as possible.

    It is therefore their interest that transgression in all shapes those excepted /except in so far/ in which it would be personally mischievous to themselves as also that disputes and disagreements among the people be as numerous /abundant/ as possible.

    It is therefore their interest that improbity in every shape injustice, oppression depredation, in a word maleficence [?] in every shape in so far as it is productive of such transgressions and such disputes be as abundant as possible.

    It is therefore /For the same reason,/ their interest that ignorance of the law or what is better /may be still more advantageous/ misconception of the law have place to as great an extent as possible.

    For the same reason it is their interest that in so far as the /if that/ decision of the Judge has /depends upon/ Statute law for its professed of that /whatever/ part of the standard of /guide to/ decision is in the shape /state/ of Statute law that is to say of really existing law, the operation of taking inspection /the difficulty of obtaining cognizance/ of it be as difficult /great/ and as rarely performed as possible: and that therefore the aggregate mass of it be as large and as costly, and the difficulty of finding out in the aggregate mass what on the occasion in question a man has need to be acquainted with be as great as possible: and that