date

29 Mar. 1805 Evidence Securities
29 Mar. 1805

Evidence

Securities

Ch. Procedure technical

The use of the principles of registration, as applied to this subject /occasion/, the advantage derivable from it, the sort of security held not by it, is almost too obvious to heed /bear/ mentioning. Should deception and consequent misdecision run /be suspected of running/ in any [...?] stream from any of these supposed /branch of the apprehended/ sources, measures may be taken for remedying the mischief at all times and at /in/ its [...?] stage.

A moderate share of reflection however, applying to the state of things here in question, the universal and unchangeable principles of human nature, would have been sufficient for the discovery[?] to shew, that any such conception could not but be for the most part an erroneous one. That of /with/ the man of law, as of every other sort of man, on this occasion as on every other sort of occasion, in proportion to the opportunity the end and object aimed at will be the advancement of his own particular interest: that if between his interest, apparent as well as real /in his own conception as well as in reality, on the one hand/, and the interest of the suitor as such, in other words the interests of justice, on the other, the coincidence had been constant and compleat, his pursuit of the ends of justice /adherence to the interests of justice/ would have been /be/ proportionably faithful, and except so far as any duration might have been produced by an error in judgment, the practice observed by him and the arrangements taken by him on every such occasion would have been bonâ fide directed towards their professed end: on the contrary that of on any occasion any contrarity should happen to manifest itself between the two distinguishable [...?], the interests of justice would, of course, to the full extent of the contrarity be sacrificed and [counteracted.] iniquity organised instead of justice.
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    ''.2. Objects pursued

    In the objects or ends pointed at by the interests abovementioned some sort of contrarity and competition may already have been observed: to encrease suits and not to encrease them, to encrease labour and not to encrease it: to extract the maximum of their advantage objects somewhat differently [...?] must therefore have been aimed at, means of different description and even opposite tendency as among the legitimate +, so among these illegitimate occasionally employed: each of the interests, each object /interest, each object/ must occasionally have been made to give way, and in some sort sacrificed, to the other. /another/.

    1. One interest said - make as many suits as possible.

    2. Another interest said - make the profit upon each suit as great as possible.

    3. A third said - make the trouble to yourselves from all suits taken together as little /light/ as possible.

    Here was a sort of contarity /To a certain degree these interests clashed:/: by the same means /arrangement/ by which one of them was promoted, another was counteracted. The more the profit upon each was augmented, the more the number of them was diminished: for the profit to the man of law being unavoidably attended with expence as well as vexation to a much greater amount to the individual would in many instances by utter inability in many more by dint of [...?] prevent them either from entering into or from continuing in the situation of a suitor - would in other words diminish the number of suits - would strike a number of hypothetical suits out of the list of actual ones - But the suits thus struck out of the list what

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    A question here presents itself. - A system perfect in the first instance, and rendered less and less perfect by /growing less and less perfect with the growth of/ experience - can this account of the matter be a probable end? Is not this the path of the golden age? Every other branch of science keeps and ever has been and still keeps on advancing with the progress of experience. In law /legislation/, the first of sciences, and in the law of procedure in particular, is there any thing that can /capable/ constitute it an exception to the rule?

    Yes verily: with substantive law we have no concern at present. But in the case of adjective law - the law of procedure a cause[?] may be assigned, nor that an unobvious one, by the force /virtue/ of which in past ages a prodigious degeneration could not but have taken place, howsoever it may fare with /whatsoever in this respect may be the destiny of/ future ones. From known principles of human nature came the general rule: from the /other/ equally known and [...?] principles of human nature came the exception which we shall have occasion /are now called upon/ to bring to view.

    Among mankind in general /at large/, a general conception seems to have prevailed, and even to be still prevalent, that the fulfilment /attainment/ of the ends of justice, the fulfilling /accomplishment/ of the predilections delivered by the substantive branch of the laws, and that with as little collateral inconvenience in the shape of expence vexation and delay, as possible, has been really and bonâ fide the end and object to /to the attainment of/ which the practice ordered[?] and arrangements made by the [...?] of the adjective branch - the system of procedure - has really and bonâ fide been directed. To propagate this /implant this/ opinion in the minds of mankind in general there has been, as may naturally be imagined, no want of industry on the part of the man of law: and as it is only through the medium of the man of law - his writings, his discourses - that any conception in relation to this or any other branch of the subject was to be obtained, no wonder that the conception /imposition/, true or false, intertwined[?] of this matter by mankind in general should have been such, as it answered his purpose to impress /communicate/ and propagate..
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    While /meantime/, here as elsewhere, the disputes /disputes/ between potentates were carried on /maintained/ and pacified at the expense of subjects, there sat the common sovereign, nodding over the spot, the field of battle /the theatre of [...?]/ in criminal /scandalous/ blindness, or more criminal /scandalous/ indifference. What need he care? He laid his pickings out of both: to him they were equally subservient, equally contemptible: equally dependant on the breath of his nostrils, equally sheep, or wolves rather of his pasture.

    An arrangement /A state of things/ /A singularity/ thus monstrous, in the composition of which absurdity and injustice seemed to outvie each other /two mutually independent tribunals judging on mutually repugnant principles/, is peculiar to this [...?] /blind/ sort of good government. It is altogether without a parallel in the whole continent of Europe, it is altogether without parallel. No other country under the sun is cursed with any such nuisance as a Court of Equity. not but in every court /there as here/ men hear enough of Equity but upon the continent, far from being a principle distant from justice and treading upon Justice with servants of her own, collaring /Revolt being[?]/ the servants of justice and tying up their hands, she is no more than Justice herself, dressed up in her best clothes, amusing herself with fine /finer/ work after the coarser part of the work is done.

    Indeed as upon the continent of Europe, the system of judicature (always with this exception of such part of it as hath rebound the natural mode as with this exception as the system of judicature, though doing no sort of business otherwise than badly, is and all along has been [...?] competent /[...?]/ to do all sorts of business, and, with a few inconsiderable exceptions to receive on in court whatever plea could be received in another and with a few inconsiderable exceptions every where upon the same principle. There was no room for any such contrarity, as two sets of tribunals, one to administer justice, the other to administer a something which not being in justice, was at the same time different from, which is as much as to say, opposite to, justice.