date

15 June 1805 Evidence Introd
15 June 1805

Evidence

Introd

Ch. Procedure Technical

''.9. Exceptions Pauper Lists

''.9 Further limitations - not extended to the higher criminal causes

The man of law is moreover a man. If in the first mentioned character his interests are in hostility with the interest of the community, in the other they are included in it.

If In his professional character his interest is that offences by /on the occasion of/ which whether in the way of prosecution or defence there is any thing /is/ to be got should be as abundant /abound as much/ as possible. In his human character it is his interest that they should be as rare as possible, and therefore, that in order that they may be rendered so, they should be punished. In regard to offences from which profit may by due management be extracted there is a sort of conflict between the two antagonizing interests: and the chance which the professional interest has of prosecuting will in the instance of each species of offence and each individual article of that species be in a sort of compound ratio, compound of the short[?] ratio of the quantum of money /professional profit/ /[...?]/ extractable from the prosecution and defence of the offence, and of the inverse ratio of the mischievousness of it. This conflict of interest has in every country ended in a sort of compromise by the terms of which the guiding[?] features of the technical system have relaxed and in a greater or less degree afforded admission or rather left liberty of action /jurisdiction open/ to the natural one /system/.

If there be any class of offence, from whence at the same time that the dangers to the man is particularly great, the chance of profit to the lawyer is particularly small, on occasion of the mode of procedure in relation to these offences, he will naturally be disposed to be less rigid in his adherence to the technical system, strenuous[?] in the pursuit of the grand object of serving up the degree of delay to its maximum; inasmuch[?] that were it clear that from the class of offence no profit at all were ever to be extracted, the idea of making artificial delay would /might/ in these cases come to be abandoned by him altogether: and in a word the more anxious he were to give safety to the man and the less hopeful of being able to give profit to the lawyer, the more ready /better satisfied/ he would be for the sake of [...?] his seriously to afford or thence admission to these principles of the natural system by which all factitious delays as well as expences are of course excluded.
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    5. Prosecutions are suits: suits constituted by a demand made of satisfaction or punishment, or both on the occasion of an /some/ offence. The greater the number of offences committed within a given time the greater the numbers of offences liable to be prosecuted out of which prosecutions may arise. Fifth object of the technical system: to render the number of offences, (crimes of all sorts included) as great as possible.

    That the man of law his own interest in the multiplication /frequency/ of offences in general, and of those more odious offences which are distinguished by the name of crimes in particular, is manifest: for suits occasioned by offences, suits for the prosecution of crimes, are suits.

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    His interest in this respect his interest is not uniform and absolute. His interest is derived from, and proportioned not to the quantity of mischief produced by the commission of them, but to the quantity of profit extractable from the prosecution of them. In a general way o speaking, it is true to say that it is his interest that as many crimes as possible be committed, because the greater the aggregate number of these that are committed, the greater will naturally be the number of those that are prosecuted. But in the commission of those of mala fide be of which it is certain that they neither will be prosecuted, nor be productive of others that will be prosecuted, he has no interest. So likewise, there be any crimes or other offences, from the prosecution of which no profit is extractable by him, weather from the defendants side of the case, nor yet from that of the prosecutor, in the multiplication of crimes and other offences of the description he has no interest.

    A man of law /lawyers/ is a man. From this character he derives a general interest, opposite to the special interest on this ground which belongs to him in the character of a man of law. As a man his interest requires that the number of crimes committed be as small, as a man of law that it be as great as possible.

    From crimes /In the commission of offences/ which are not prosecuted, crimes /of offences/ the prosecution of which affords him /if such there be/ no profit, he has no /not in the character of a man of law any/ interest: in these cases, in so far as they can be distinguished from the rest, the interest that belongs to him in the character of a man, being unballanced, will be seen to turn /dominate/ the scale.

    In the commission of offences which afford him a half-profit, profit on the prosecution of those not being extractable but from one side, in his character of man of law he will have as it were but a half-interest.
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    The aggregate number of offences committed and prosecuted being given, his interest requires, that the number of offences committed by the rich, or prosecuted by the rich, or both, be as great as possible: and a converse, that the number of offences committed by the poor /indigent/, or prosecuted by the indigent or both, be as small as possible.

    From various causes /Whatever be the cause, and there are various ones/ the majority of offences in number and value: (i.e. degree of mischievousness) that is the majority of crimes together will be such in which the poorer classes have more concern /are more concerned/ than the richer. concerned in the character of prosecutors, and in a still larger proportion in the character of delinquents: [...?] 1. The poorer classes are the most populous. 2. Offences produced of indigence are far more numerous than offences of all other descriptions put together; and offences produced by indigence are naturally /most apt to be/ the offences of the poorer classes.

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    Between, profit, reputation and power, and consequently between the interests respectively created /generated/ by those objects of universal /general/ desire, the connection is intimate and almost inseparable: so that /and/ where a mans interest in quality of /the character of/ a man might have outweighed his interest in point of profit in the character of a lawyer, it may happen that his interest in point of reputation in the character of a lawyer, being so superadded may /shall/ have the scale on the other side

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    In different countries under different systems, this conflict of interests will be found productive /may be observed to have been productive/ of different effects. In some, in the character of a lawyer the interest of a mans reputation has been better served by the punishment of crimes prosecuted, and thence decreasing /diminishing/ the number of crimes committed than by giving impunity to crimes; in others, it has been better served by giving impunity to crimes, and thence by encreasing the number of crimes than by diminishing it.
  • Title: [23 Jan y 1808 In the ends of justice]
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    In the ends of justice we see the objects to which, in profession, the labour of this Board must be directed: the ends of justice, amongst them the [...?] if possible the [...?] of that mass of factitious delay, [...?] and expence, out of which the profit in all its shapes pecuniary profit, power, dignity, reputation of the man of law in all its shapes is extracted /drawn/, and will which it [...?] and falls.

    Lawyers are the [...?] of which without any exception the Board will be to be composed: Lawyers the Hopsons choice, no [...?] Lawyer presently the smallest chance /probability/ of his being able, had he the resolution, to see his way with any tolerable degree of [...?] through such a wilderness.

    Of the Lawyers put into the Board will be in each instance of them [...?] one whose prospect of making his personal profit of the abuses /[...?]/ of the existing system on who does not look in his own person to increase of business, but much more probably one who does. If so particularly circumstanced as not to look /be looking/ for increase of business, or as viewing in the reputation of public service /[...?] in this [...?]/ a computation[?] for any increase which could have to /in his [...?] to/ sacrifice so far as depended upon his own pecuniary interest the bar would not be unsurmountable. But not a step could he travel towards the ends of justice but would be accompanied by the secret and not the less intense because for being secret, execration of his professional brethren - of his [...?] and intimates all around.