date

18 June 1805 Evidence Introd
18 June 1805

Evidence

Introd

Ch. Regular [...?]

Diverse classes of professional hands whose work /functions/ are useless in toto to the purposes of justice.

In a Court of Summonary Procedure, neither of those instruments of the Daemon of Chicanery the Special Pleader and the Equity Draftsman have /can ever find/ any place.

Whatever is done by either of them belongs in toto to the account of made business more /completely unnecessary, much more/ than useless business.

In the Circle called Court of Common Law, the Special Pleader that is a pair of Special Pleaders on on each side, bring out allegation upon allegation, altogether without one, without any search for veracity on either side, and under the constant incitement of an interest more or less [...?] in permitting mendacity, on whichever party is in the wrong; and though neither party should have any impulse /temptation/ /interest/ or desire to inflict needless vexation expense and delay upon his adversary, then their aptitude are sure in every cause /can not in any cause fail/ to have an interest in keeping these affections of the highest possible degree of morality[?] upon both.

In the courts called Courts of Equity the /under the system of/ Draftsmen, with their Bills and Cross-Bills their Answers and Cross Answers, the check upon mendacity is not, as in the other case, altogether wanting as in the other case, but the mass of vexation expense and delay is in an enormous degree even[?] /a great degree still more/ oppressive.

Special Pleading consists in reciprocal allegation without enquiry or the possibility of enquiry on either side. Equity Drawing consists in enquiry but in enquiry in the form of which neither truth nor despatch, but vexation expense and delay, for the sake of professional profit, have been the manifest object in view: and much is the delay, that after a series of enquiries still longer than the entire duration of a suit at Common Law, whatever truth on both sides requires on this mode of proceeding two suits, each longer than a [...?] [...?] Common Law: and at the end of this double enquiry it is only from those two individuals, the parties, that whatever truth is there extracted is obtained: this remnant the remuneration if extraneous[?] witnesses which in Equity if performed at all is performed in a different, and by far less mistakes made.
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  • Title: [Evidence 18 June 1805 Introd]
    Description: Evidence

    18 June 1805

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    Regular useless

    The Common Law procedure and Equity procedure agree in this that in both such evidence /that evidence/ as the cause affords is extracted in a bad and imperfect manner the end of a course of months or years, which in Summary Procedure is extracted /may frequently/ in the best and most perfect mode possible in as many hours or even minutes.

    Such is the fruit and the use of the labours of those two professional men, the Special Pleader and the Equity Draughtsman.

    Of this sort is the labour, so directed, so applied such are the labours by which the professional Lawyer is supposed to give himself the best qualification possible that a man can possess for the very highest seats in Judicature.

    To a Judge who has /should have/ the interest of truth and justice really at heart the labour of the Special Pleader and the Equity Draughtsman are of as much real use in /may in point of real use be compared with/ the labours of those females who follow the army for the purpose of stripping the dead and wounded after the battle, or to the general who commands it.

    There is indeed this difference. The female plunderers do not on either side diminish the chance which the General has of obtaining /shall of the General may give him for/ a victory. But the labours of the male depredators on both sides concur in rendering it impossible for the wisest and most upright of Judges to do any thing better than rendering /administering/ the most enormous and deplorable injustice under the name of justice, of a fictitious and unnecessary vexation, expense and delay done by injustice, under the name of justice.
  • Title: [18 June 1805 Evidence Introd]
    Description: 18 June 1805

    Evidence

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    ''8. Mendacity encouragement

    limited to parties

    To mendacity, (and its /not to speak here of its next of kin/ temerity) two distinguishable checks are opposed, wherever it is seriously wished to be prevented: punishment and cross-examination: terror of future contingent punishment under the name of punishment in a large lot, and present shame, which in itself is in effect a present punishment. + Of what concerns punishment, as well as of what concerns judicial examination mention will be had /consideration will be had/ in detail, in their proper places: suffice it here to call to view in general terms the necessity, the indispensable necessity of one or both of those securities.

    What, then is to be expected of a system which [...?] as it were cautiously to apply either of these securities, or any other unless it be in the shape of costs the prospect of an inadequate drawback to the profit of the mendacity at an indefinitely remote as well as future contingent period, puts it in the power of either party, upon the mere condition of pronouncing or enquiry or existing which his professional agent pronounces or signs a certain form of words, puts it in the power of either party to drag his adversary through a totally [...?] mass of vexation, expence and delay for a series of months or even years.

    I open a book of French Procedure. it consists of no fewer than most closely printed 40 /10/ pages. It is stock[?] full of formularies. From beginning to end neither in any formulary, nor in any other part of the book in I find any mention of punishment as for mendacity or honesty on the part of either party, or on the part of any professional agent of either party, or so much as the ceremony of an oath, much less any such security as that of cross-examination by the adverse party in the presence of the Judge. decrees upon decrees are fixed, allegations and received, necessity of counter allegations respond[?] upon the adverse party, examination in the dark and secret way there is without opportunity of cross examination, examinations upon paper in a never ending string granted on one side required and rendered necessity on the other, all these sources of vexation and expence and delay set running in full streams, upon no better ground than a written assertion or even [...?] without assertion, on the part of a lawyer /humbug agent/ to whom every lie is a source of profit, and all this without any the slightest security for the truth of any thing that he says.

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  • Title: [21 July 1805 Evidence Introd]
    Description: 21 July 1805

    Evidence

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    In the Courts of Common Law the business of procedure is carried on upon one plan. In the Courts of Equity the business of procedure is carried on upon another plan as different from the other as any that can be conceived. Two plans here different for the accomplishment of the same object may be both wrong; and if to run counter to every end of justice is to be wrong are both wrong, but they can not both be right.

    Not only did they travel /wish/ in use the execution of the same work /sort of business/ upon discordant and repugnant principles, but among the occupations of one of these sort of Courts is that of stopping and undoing the work of another /the other/. [When Penelope unravelled by night the web she had been compelled to weave by day, it was for the declared proposed purpose of impeding the work and not of forwarding it.] It To do this and that and other is contrary to equity and good conscience. So says /saeth/ the suitor in Equity to the Court of Equity. It is so it is indeed contrary to equity and good conscience, says the Court to the Plff in effect, as often as upon the ground /strength of the [...?]/ then made by the Plff it acceeds to his demand. Contrary to equity and good conscious? to do what? To do that very thing which the Courts of Common Law are constantly employed /occupied/ in doing, because the not doing it would be contrary to justice.

    My property /land is withholden/ is taken from me. I apply for redress to the only Court /Court which in this case in question prefers to give in [...?]/ to which I can apply for it, a court of common law. When the Common Law storehouse of factitious expense, vexation and delay has been exhausted, and the time is come when it is no longer possible for the Common Law Court to forbear rendering a justice, I am dragged into a court of Equity, in which the process of factitious expense, vexation and delay recommences with improvements: to a Court of Equity, in /by/ which my demand is decided upon on principles disregarded by the Court of Common Law; the facts being also decided upon by evidence not there admissible and obtained by a mode of enquiry altogether different.