date

9 April 1805 Evidence Introd
9 April 1805

Evidence

Introd.

Ch. Procedure Technical

''. Oppression Secured[?]

In the prosecution of this plan of iniquity the sinister interest of the man of law has had for its natural ally, and ready coadjective[?] the interest of the mala fide suitor, in both his state as that of plff and that of defendant, and in all his shapes: the opulent oppressor; the needy profligate, who having a certain portion at command out of the couch of his forbears, chooses rather to employ it in purchasing the means of eluding /a licence for injustice/ /escaping from/ his obligations than in complying with /fulfilling/ the demands of justice.

Indeed in the nature of this confederacy /[...?]/, the part taken by the man of law like that of the shopkeeper in relation to the customer must necessarily[?] be but secondary and passive. By the man of law a [...?] is filled up for the sale of two sorts of licences: to improbity coupled with if overbearing wealth a licence for the practice oppression an oppression licence: to improbity coupled with indigence, a licence for defrauding creditors of their due: - in a work a cheating licence.

The nature of this natural partnership the connection between the two Co-partners - resembles (it may be seen) in a considerable degree that between the Receiver and the Thief and the Receiver of stolen goods. The Thief in his line[?] and the dishonest suitor in his are the active partners by whom the business is to be set a going. The Receiver in his line[?] and the man of law in his line these though not /by no means/ sleeping, are comparatively quiescent partners: what the Receiver furnishes /sells/ to the thief is the means of profiting by iniquity: what the Lawyer furnishes /sells/ to the suitor is the means of practicing it.
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    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.
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    To violate the rule [...?] alteram partem - to refuse a hearing to either side, is mentioned in a proverbial way among men in general, but more especially among men of law not merely of iniquity /as the ultimate point of iniquity: - and/ but of that sort of iniquity, of which in the established systems an example is hardly to be found. Of this partial and incompleat /inconsummate/ iniquity examples are indeed but rare /not frequent/. But if the like iniquity doubled, doubled by being repeated upon both parties, in the established system so far are the examples from being rare, that the rare case is the finding[?] any here and there/ exceptions to the rule. To refuse a hearing to either party from first to last, by proxy /to his professional/ as well as in person /agents as well as himself/ is a sort of iniquity never practiced by men /the man/ of law. Why? because nothing would be to be got, on the contrary about a [...?] /a portion/ of the people would be lost by it. But the double of this iniquity. this refusing /refusal/ to hear so much as the agent of the party till the last stage, coupled with the refusal to hear the party himself at any stage, is an iniquity that is but too extensively in practice? - Why? because there is every thing /so much/ to be got by it: because in comparison of what is [...?] got by means of it what would be to be got without it is as nothing /little worth/.
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    '' Licence given /sold/ to oppression by English Procedure

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    From the exigency /nature/ of the case or by professional /managerial/ management a conceivable case is that it shall fall to the lot of the plaintiff instead of controverting the defendants fails alledged as above, shall oppose to those other facts: and that this process shall be repeated on both sides any number of times. To the possible number of these reciprocal allegations there is no determinate limit. Taken in the aggregate the art of comprizing them comprises /drawing them up constitutes/ a particular branch of lawyers practice, is denominated Special Pleading, and furnishes occupation /employment/ to a particular class of lawyers called Special Pleaders.