date

18 November 1804 Evidence Evils
18 November 1804

Evidence

Evils causes

ch. Lawyers' interest

In respect of the obscurity of the law /system/ the indication /operation/ of professional interest is not altogether uniform. On the one hand it is the interest of the lawyer, that the law should be as obscure as possible to the suitor: but it is his interest that it should be as clear as possible /little obscure/ as possible to himself. This situation will accordingly be productive of different interests and different wishes at different times of life. When young at his entrance into the profession, the difficulties attending the study will press /bear/ upon him with the severest pressure. ----- from ----- future profit may at this period be naturally enough /in a moment of impatience, be/ productive of an emotion of regret at the thought of the heaviness of the yoke, and a wish to see, if possible, the weight of it alleviated. As he advances in study, and still more as he advances in practice, the obscurity will clear up /clears/ - the pressure of the burthen will be less severe, till at last the force of interest will act exclusively with all its weight on one side. The weight of the burthen being now vanished /evaporated/ the benefit will remain clear. The ----- lying now beneath his feet, the satisfaction he feels at the contemplation of it will be unbroken and unmixt: there will now be no room for any other wish than that of saving this obscurity /it/ to the last as thick as ever, and thicker still if it be possible.

In a moment of impatience, a student may wish now and then to see the law clearer than he finds it /the law had been less obscure/: no old lawyer /no lawyer/ established in practice ever did.
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    To the same purpose what is required by the interest of the greatest number is that the /the discourse forming the/ ”matter• of the law being real and not imaginary be conceived in terms, phrases and propositions and other larger portions, as clear, that is to say as free from obscurity, ambiguity, as comprehensive with respect to what the end in view requires, as free /pure / from misstatement, that is to say as correct /adequate [?]/ /apposite/, and as free from superfluous matter © matter that adds nothing to the sense that is to say as concise, as consistent that is to say as free from mutually contradictory propositions, and as compact, that is ranged in the order most favorable /conducive/ to clear, comprehensive, and correct conception as possible: and that the order be such as shall be in the highest degree conducive to needful and effective promulgation /adapted to the purpose/

    To the same purpose what is required by the same public /general/ interest, is © that of the said matter of law each portion should be presented in the most effectual manner to the senses and the minds of all descriptions of persons who on any account whether it be in respect of benefits conferred by it on them or burthens imposed by it on them have an interest in its being present to their minds: and that on the other hand, that which as above belongs to each should be detached from every thing that does not belong to him, lest by the weight of aggregate weight /bulk/ of the burthen that which does belong be in part or in whole prevented from obtaining or from preserving a place in his mind.
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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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    In the penning of real law, the study of the real legislator naturally is as it ought to be, so to choose his words that the questions of law arising out of them shall be as few as possible. It is for this purpose that except for the purpose of abbreviation, as above mentioned, he will never lose sight of two congenial endeavours, on every occasion to employ such words as are in most common use with the people whose fate they dispose of, and never to use them in any other sense than that in which the people understand and use them.

    Correspondent to the study on the part of the real legislator, though by the rule of contraries, has been, in his character of pseudo-legislator, the study of the English Judge. Example: Magnifying Jury trial in outward show, undermining it in practice, denying in the teeth of uninterrupted experience the right of Juries to decide the question of law, arrogating to himself the exclusive cognizance of all questions of law - of all questions grounded on words of law, he converts into a word of law - a source of questions of law words of all sorts as many as the language furnishes. Words made by the partnership, and in use nowhere but in the partnership answer this his purpose well: words in common use and in the most common use answer it still better. Law jargon produces manifest obscurity, serves as a bugbear, and forces men into the arms of the partnership for advice, by the dread of falling under the lash of the law and by the sense of dependance produced by conscious ignorance. Ordinary language, infected by passing through technical hands, answers the better purpose of a snare, and thus inveighs them into transgression, that vent[?] their torment the partnership may extract its profit.