date

29 Feb y 1808 Letter VI Omissa
29 Feb y 1808

Letter VI

Omissa & Facienda

No Alleg sans Oath

Two enormous[?] /all-pervading //Enormously extensive/ mischief flow from this abomination:

1. One [...?] /is/ in the enormous quantity of balderdash habitually [...?] /[...?]/ out under favour of licence: and with it a proportionable quantity of complication, delay vexation and expence.

The Client not being presentable for any falsity it may happen to it to contain, leaves his lawyer to fabricate allegations on his behalf to whatever effect and in whatever quantity he pleases.

The lawyer being not only not permitted, but rewarded in proportion to the quantity, obtains at the same profit in proportion to the quantity, and reputation in proportion to the zeal of which the magnitude of the quantity is the demonstration and the measure.

The mischief /grievance/ is but to [...?] in the English modification /branch/ of technical procedure. But in that case it is restrained in degree by the forms: the forms of pleading.

In the Scottish branch those forms being for the most part wanting, the mischief has no bounds.

In English procedure, the effect of those forms is to draw in some sort a line of demarcation between the clause[?] (whether demand or defence) and the testimony delivered in support of it.

Scottish procedure affords no such line. Herein[?] another source of /and/ confusion with the complication and superfluity of matter of which it is productive.
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  • Title: [29 Feb y 1808 Letter VI Omissa]
    Description: 29 Feb y 1808

    Letter VI

    Omissa & Facienda

    No allegat Sans Oath

    Under no oath[?] [...?...?] but English practice if no[?] examination of parties.

    2. The other mischief consists in the corruption of morals: deprivation of moral character both in this part /instance/ of the client - that is of the number of the community in general in the character of suitors - and on the part of the man of law. Both are thus rendered liars: the one by accident , the other by profession: the one by misfortune, the other by choice.

    There is no enormity[?] to which men are not recounted by practice.

    Never was wickedness more compleatly destitute of all excuses on the ground of necessity. The licence is not extended to extraneous witnesses. But there is no reason why a man should be permitted to lie[?] in the character of a party [...?...?] of a witness.

    The mischief would be much less serious than it is, if the habitual practice of this vice were confined to professional lawyers, the humbug representations of the parties: that is if in every instance the man who is once a professional lawyer were always a professional lawyer, and nothing else.

    But the same man who in the certain part of his life is a professional lawyer, becomes in the latter part of it an official lawyer, and in that character is raised to the highest and most important trusts[?]: and going through the course of vice is ever rendered an indispensable qualification, a condition [...?] quâ [...?], to his elevation to any of those exalted stations: not less rational would it be or favourable to virtue[?], if a law were made rendering it impossible for a female to enter upon the matrimonial state, without having previously passed here[?] in two years of her life in a brothel.
  • Title: [1 March 1808 Letter VI Omissa]
    Description: 1 March 1808

    Letter VI

    Omissa & Facienda

    No Allegat n sans X examin

    Blackstone, as if it were matter of peculiar importance, Blackstone fighing[?] up the injustice shops in the profit of which he had a /his/ share against the [...?] in /those rural shops, profit[?] of/ which he had no share in[?] speaks of the [...?], of both orders, temporal and spiritual, civil and [...?], as reaping from these and other such preachers from rakes some[?] in here[?] and there[?] and t'other part of the field of litigation, " a harvest of perjaries": as if the mischief of testimonial perjary were any thing different from that of the mendacity to which it gives [...?] and success: as if under the fee-gathering system there were any one set of Judges - any one set of Lawyers, to whom a crop of perjaries[?] was less acceptable, in the /by whose/ exertions made to produce such crops less sincere and strenuous[?]. Hence another: as if under any branch of that system it ever had failed to be, or in the nature of things ever could cease to be, an object of their [...?], to place and preserve the public mind, in the branches of it moral and intellectual, in a state of depravity[?] /depravation/ as consummate /compleat/ as possible.
  • Title: [1 March 1808 Letter VI Omissa]
    Description: 1 March 1808

    Letter VI

    Omissa & Facienda

    II. No Allegat n sans x examination

    No English lawyer - no, nor yet any Scotch lawyer - none at least who had any acquaintance with Jury trial as practiced on the Circuits[?] can be insensible to the importance and utility of cross-examination in the character of a security for veracity and a test of truth.

    Being to this degree good in some /so many/ cases, and those among the most important, why refuse /deny/ to /with hold from/ justice the benefit of it in any case? If thus there be a case in which the utility of it fails of being exemplified, the burthen of proof rests with those whom its utility in that case is untested[?].

    In principle the case proper to be excepted have just been indicated: they are the case in which the inconvenience in the shape of delay vexation and expence is so great as to be preponderant over the evil in the shape of misdecision, actual or probable.

    But these are not the cases in which the benefit of the security fro truth and rectitude of decision is with-holden: the with-holding of it is not determined /regulated/ by that principle, or by any principle having /having any sort of/ reference to the ends of justice.

    The exceptions extensive as is their range in English law, to a prodigious degree more so in Scotch law, are determined by the /those/ allied powers by whose united influence the decisions of law /procedure/ are grounded, viz. Fraud and Accident: Fraud in the shape of Lawyercraft, Accident where Lawyercraft has found /seen/ no special [...?] to interpoze.