date

14 June 1805 Evidence Introd
14 June 1805

Evidence

Introd

Ch. Procedure Technical

In both cases the mischief that is done is alone /equally/ the handy-work of the man of law /collateral but not less certain result /produce//: the fruit of the tax imposed by him, and for his own benefit, on that sort of [...?] which goes by the name /to which he gives the name/ of justice: but in one case that is done by mere terror of the man of law, which in the other case can not be done without force actually applied: in the one case the man of law sees the whole profit reaped /got in/ by the wrongdoer, and gets some of it for himself: in the other case the wrongdoer is forced to let the mother of the iniquity into a share of the profits, and the business goes on in partnership. If it were possible to come in for a share in both cases /all cases/, the man of law of course would not have a single door open through which the wrongdoer might then creep in and get to himself the whole of the profit without paying for it and put the whole profit into his hands without allowing any part to leave[?] to when he is indebted for the whole. But the two cases are so mixed that they can not be separated: so that /and thus/ as to this part of the cause, the man of law is obliged on each individual occasion to take his chance /leave the matter to chance/.

The option is - to act immediately in the character of plaintiff, or eventually in that of defendant.

Upon this plan there is at any rate no suit in the first instance, and either there is no suit at all, or at any rate none till after the main wrong is done: but the wrong done, the wrongdoer rests, as it were upon his oars, and if thereupon a suit does take place, the part which he acts in it is the defendant's part /part of the defendant in the cause/.

If he prevents the species of injustice (over and above the vexation expense and delay in the case of litigation) the species of injustice produced by the plan of injury is that which is called /comes under the denomination of/ failure of justice and which, according to the law[?] of conduct maintained by the part injured has for its immediate cause, either Non-Demand, [...?], or misdecision to the prejudice of the plaintiff's side: misdecision /ultimate misdecision,/ being under the technical system the result that takes place, as of course, wherever the party who is in the right is liable to pay the price set upon a decision, when given on his side in favour of his side.
Similar Items
  • Title: [[...?] July 1804 Procedure & Evidence]
    Description: [...?] July 1804

    Procedure & Evidence

    8

    Enquiry Mode

    Ch. Advantages

    Under the technical system in general and under the English systm in particular, malâ fides on which ever side it be demandants or defendant's has full swing. To shame it is never exposed /From shame it is effectually protected/ in every case, except on the part of the defendant in the few cases where /in which/ in the character of a prison his presence is indispensable, in most of which he is commonly out of the reach of shame by being beneath it.

    As to success, under favour of the factitious delay, vexation and expence attached to the system - provided that on the part of the party injured there be a given deficiency, and in favour of the wrongdoer there be a given superiority in point of opulence, so far from despair, there is on the side of the wrongdoer, a compleat assurance. The malâ fide demandant may say to himself, and with full /the fullest/ assurance my demand though groundless, can not be resisted. The malâ fide defendant - meaning on this occasion him who would have been made defendant had it been in the power of his adversary to have the expence of a demand may say to himself with equal assurance - I will not comply with the demand without law /litigation/, since it will not be made in the way of litigation /by authority of law/, for the man whom I leave injured is not able to bear the expence: or should he be rash enough to engage in the track of litigation, it is in my power and it shall be my care to throw so many thorns in his way, that he will find himself obliged to stop before he has got to the end of it.

    In both these cases, the existing /technical/ system shown in all its glory: to the party in the right it provides certain ruin: to the party in the wrong, certain success and triumph.
  • Title: [[...?] June 1805 Evidence Introd]
    Description: [...?] June 1805

    Evidence

    Introd

    Ch. Procedure Technical

    ''.3 [...?...?...?]

    ''.3. Encreasing expence encreases profitable, as well as diminished unprofitable suits

    Nor was the hearing of the Court of unprofitable suitors the only service yielded in an indirect way by the augmentation of expence.

    While it diminishes just litigation, it encreases unjust /Though on both sides just litigation is /was/ diminished, unjust is /was/ encreased/: viz on the part of that one of the suitors /two adversaries/, demandant or defendant, who is able and intent and willing to pay the price set upon judicial service, while his antagonist is unwilling or unable /shut out by inability or reluctance/. A shape[?] was thus opened, and that a most public one, for the sake of /the facility of/ Oppression: and that in either of two forms, according to the texture and exigency of the customers case. In the state of things whatever wrong /injury/ be indicated he commits it in the first instance, trusting for success and [...?] and success to his adversary's list coming up to the price /[...?] from his price/ put by the man of law on the ticket he sells in the lottery /litigation/ of procedure /justice/ /litigation/. In the other case, he borrows /hires/ and employs the hands of justice, the very hands of the Judge and his associates and subordinates in the production of the mischief. In the former case indeed, the profit to the man of law is not quite so assured /enduced[?]/ as in the other; since of the party marked out for injury /[...?]/ /destruction/ be altogether without the hope /bereft of the prospect/ of being able to pay the price put upon the chance of redress, he will institute no suit: in which case the oppressor gains /obtains/ his ends gratis compleatly gains his ends, and which the man of law as compleatly loses his. But another case, and perhaps a no less common one, is - when the party injured, blinded by his own resentment and deceived by the advisor whose interest it is to deceive him /puts in the character of [...?]/, commences the /a/ suit , without power to carry it to an end. Meantime the wrongdoer, assured before hand of his being provided with a sufficient [...?] of the pecuniary means of defence, harrasses him without worry /defends /fights/ the ground week by week/ plying him all the time with those obstacles and stumbling-blocks which the man of law [...?] in /constitute the stock in trade of the shape of justice/, and from the sale of which his profit is derived: But while either side thus plays off its artillery, the other is obliged to do the same: so that in this case the wrongdoer is pays[?], does not reap /[...?]/ the whole of the profit; but admitts /shares it with/ the man of law, his instrument and accomplice, to a share.
  • Title: [15 April 1805 Evidence Securities]
    Description: 15 April 1805

    Evidence

    Securities

    Ch. Procedure Technical

    ''. Allegation is Evidence

    Instead of 12 years' income propose to ground a decision bereaving the defendant, though it be but of 12 day's income, by a decision grounded on ex parte information in the shape and under the name of evidence, and under all the securities against falshood and deception that are regularly brought to bear upon whatever goes by the name of evidence, a man of law will /would/ stand aghast at the injustice: - bereave him of 365 times the amount or by a chain of decisions or preestablished arrangements having the effect of decisions, bereave him of 365 times the amount, on the ground of a bare allegation to which none of the securities against falshood and deception are suffered to apply, all this is perfectly right, consistent with the dictates of justice because consistent with the established course of judicature, and thence we are to understand of course, with the dictates of what goes by the name of justice.

    Whence this[?] inconsistence? Whence this unsurmountable /invincible/ scrupulosity in the one case, this boundless facility in the other? from this, that because the exposing a man in the way in question to the chance of being unduly bereaved of the value of 12 day's labour, would besides the discredit that it might reflect upon the operations /arrangements/ /administration/ of the man of law deprive him of the profit attached to the admission of evidence on that side.

    Whence this boundless facility in the other case? - From this, hat by /from/ his being dragged from the beginning to the end of the course of technical procedure bereaved of /out/ the value of 12 years' labour which has been squeezed out of him by the time that he has been dragged from the beginning to the end of a course of technical procedure, a great part, perhaps by far the greater part has been determined[?] by the multitudinous hands to feed the multitudinous mouths of the man of law.

    + Such then are the properties given to the [...?] /initiator/ of allegation - the instrument by which any man, as is [...?] given to it by any other man. be dragged through a suit at law. It is evidence, and it is not evidence: yes - evidence for the purpose of determining the fate of the adverse party, and with a degree of efficiency not allowed even to the strongest evidence: no. it is not evidence, to any such purpose as that of being subjected to any of the checks to which evidence is subjected.