date

1 March 1808 Letter VI Omissa
1 March 1808

Letter VI

Omissa & Facienda

II. 3. No Exclusion

2. Maintaining uncertainty on the part of the rule of action - arbitrary power on the part and for the benefit of the Judge.

Coupled with the opposite rules of excession[?], the system of exclusionary rules forms one of the engines already spoken of un der the name of Double functions[?] from which aqua fortis and liquid [...?] run on an [...?] draw out the vitals of the community. Two sets of rules being established with like authority, two sets of rules operating in compleat repugnance to another, the Judge has his [...?] between them - no Judge ever has been or ever can be at a loss between them to exclude the evidence or give admission to it as best suits /as he thinks fit/ his purpose, in so far as the cause depends upon that evidence, to give success to plaintiff or to defendant.

The Turkish Judge is arbitrary in one way the English /one[?]/ Judge is arbitrary in another way. But in the practice of [...?] and oppression the Turkish Judge sits continually exposed to the [...?] or the [...?]. An[?] English Judge in perfect safety: no rod over his head but the rod of impeachment, and that a [...?] one constant effect.

3. As to the depravation of the morals and understanding of the people, as under the fee-gathering system it has been throughout the constant aim, so there as whatsoever[?] it has been the constant effect, of every regulation and every part of practice.

The hope of exempting themselves from the obligations of justice or [...?] /advantaging/ themselves in some way or other by profitable wrong, as in so many other ways /means/, by means of some quirk in relation to evidence, is among the bounties by which in the character of malâ fide litigants men are imbibed in the service of [...?] under the command and for the profit of the Judge of the Judge /law [...?]/ and the rest of the staff.
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  • Title: [1 March 1808 Letter VI Omissa]
    Description: 1 March 1808

    Letter VI

    Omissa & Facienda

    II. No Exclusion

    3. Various are the case in which a pretended pecuniary interest, created by a sense[?] [...?] as no beggar of it long before him[?] would vouchsafe to stoop for - some minute fraction of the value of this [...?] came in existence, speaks as a peremptory exclusionary shutting out the light of evidence.

    4. This together with the whole[?] remainder of the system of exclusionary rules as at present established are no more than an invention of lawyercraft, operating to the purpose /promoting the object/ of lawyercraft in a variety of ways - by making business i.e. lawyer profit, by founding uncertainty[?] by [...?] Judges with arbitrary power, and by debasement /depravation/ of the public morals and understanding.

    5[?]. Making business in an infinity of ways. The same evidence which of right for by a less extensive course you [...?] not have, pay the price for it, that price an extra price and it is yours. Thus alone a man is not a party in that individual cause, there is no magnitude of interest which the lawyers are not ready to force[?] time from for the purpose of admission by what they call a purge, [...?] the materials and composition of which their shop must be resorted to of course. Neither is there any magnitude of interest under the influence of which they will not receive the testimony on the [...?] favour has one[?] cause, on condition of payment of one extra price facing the lawyers /submitting to depredation/ in two sorts of courts - an Equity Court and a Common Law Court - the Equity Court ordering what they call an Issue - a [...?] action to be tried in a Court of Common Law after which comes an ulterior course of pillage[?] in the Equity Court.
  • Title: [27 Feb y 1808 Letter VI Omissa]
    Description: 27 Feb y 1808

    Letter VI

    Omissa & Facienda

    III. 2. No contempt of Parl t

    As to the mode of giving effect top the conspiracy, it may be this /something to this effect might serve/ -

    A list to be formed of the instance in which regulations established by the immediate authority of Parliament, have been considered as having fallen into disuse, or on any other pretence, or without pretence, created with disregard by Judges.

    Another list of regulations established by authority derived from Parliament and thus treated.

    In particular a list of regulations established by the Court of Session under the name of Act of Sederent[?], and instead of being repealed treated with disregard, viz. with constant disregard, as if they had been repealed - or what is much worse with occasional disregard, and thus converted into instruments /engines/ of corruption and arbitrary power.

    Resolution of both Houses [...?] /declaring/ such practices to be high misdemeanours.

    Resolution of the House of Commons - that the House, as often as any such practice comes to its knowledge, will impeach the offenders /delinquents //[...?]/.

    Resolution of the House of Lords that as often as any Judge, being impeached of any such misdemeanour, shall be impeached and convicted, the House will punish the Offender with a degree of severity suited to the enormity of the offence.
  • Title: [1 March 1808 Letter VI Omissa]
    Description: 1 March 1808

    Letter VI

    Omissa & Facienda

    II. No exclusion for improbity

    In the midst of all these exclusionary rules, instances are known in which the testimony of a convicted perjurer has been admitted, admitted on his behalf at his own instance. I mention it as an example not of improbity, but of inconsistency: and note that here too the terms on it[?] shape in which it has been admitted, the only shape in which it would have been admitted was the uncross-examination shape of affidavit evidence.

    The reason given for the admission was a very good one in the view /eye/ of common cause[?] and common branch a [...?] one: but for the admission a man though once [...?] might be exposed to the most fatal injustice: The reason was a [...?] one: but by this same reason if it be good for any thing all the exclusionary rules - the whole body of them - stand condemned.

    Here, as before, like /sinister/ effects find their [...?] in the same prolific cause:

    By affidavit evidence the Judge is preserved from the spectacle /sight/ of all others most advice to a fee-fed Judge, the right of the party or parties whose fate awaits his nod.

    By affidavit evidence [...?] is brought to the Judicial mill: [...?] which is not /would not be/ afforded by one[?] the same testimony if delivered vivâ voce.

    By affidavit evidence, falsehood is protected against /from/ the eye /gaze/ of detection, perjury encouraged, perjurers multiplied, public morals depraved.