date

8 Apr 1806 Evidence Exclusion
8 Apr 1806

Evidence

Exclusion

Ch. [...?] Cause

In /For/ a vast majority of the causes /disputes/ /judicial contests/ to which human weakness or improbity gives birth, a single attendance, was understood of both parties in the presence of each other and of the Judge is sufficient for decision: a single attendance, and the duration of it, upon an average, not more than a few minutes. The fee that without /with any/ exciting clamour could be exacted in return for so small a part of the Judge's time, would go but a small way towards satisfying his appetite /rapacity/ for money, especially where the opulence of the parties operated as a provocation: - To multiply fees it became necessary to multiply occasions for fees: to make money, it became necessary to make business.

By the indirect course thus taken for making money the quantity /degree/ of oppression was encreased /aggravated/ beyond calculation: tenfold, twentyfold, a hundred fold, a thousand fold or more according to circumstances. To get 5 to put into his own pocket, an /the/ architect who is paid by a percentage of 5 per cent, is /must/ obliged to put his employer to an /the/ expence of 100. Thus grievous to the party injured is peculation pro rata compared with simple embezzlement or theft. But this load of oppression produced by the made-business made by the architect is but a feather, compared with that which is produced by the made business made by the Judge. A more apposite parallel is afforded by the selfish man of Lord Bacon[?], the man who to avail one egg for himself sets his neighbour's house on fire.

The natural system of judicial procedure is happily not altogether unknown in any country: in particular not in England. It is the same with the domestic. The restoration or preservation of it stands happily exemplified in the practice of several Courts, which there will presently be occasion to bring to view. The system by which the art of making business has been carried to /brought to so disastrous/ a pitch of such unhappy perfection may be called the technical system.
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  • Title: [8 June 1805 Evidence Introd]
    Description: 8 June 1805

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    '.3. Corruption. Cause

    So much for supposition: but in point of fact how did the matter stand? The faculty of recovering fees was not introduced to the Judge: those fees were allowed to derive their birth, and did derive their birth from such and such accidents and occurrences: such and such operations the performance of which, on the part of the suitor and other persons, either was necessary or was said to be necessary to the enabling the judge to exercise his functions in a manner conformable to justice. It was left in the power of the Judge, commonly to determine the quantum of the fee receivable on each occasion, always to determine and encrease the length or number of the operations so to be performed, and thence of the occasions out of which such fees were to arise. The power of determining and consequently encreasing the length and number of those operations could with difficulty if at all even now, could not by any means in those ages of ignorance /imbecillity/ and barbarism, be refused to the Judge. But the power of increasing the length and number of those operations was in other words the power of making business: and the power of increasing the number and consequently the aggregate amount of fees keeping pace as above with the power of making business, making business became /was/ thus the same thing with making money.

    Even in the present advanced period of society, in which /when/ the experience of fraud in every shape /all shapes/ has opened the eye of the public /public eye/ and kept it awake to fraud in every shape, even in the present advanced period of society, and in situations in which the hand of fraud derives no assistance from the arm of power, the consequences of such a conjunction /concentration/ of such a mode of payment, are almost as unavoidable as they are notorious. To whom is it now a secret to what a degree the employer lies at the mercy of the planners of any work, architect for example, civil engineer, and so forth who is paid by a percentage, on the quantum of the expenditure occasioned /called for/ by his work? How much more completely unavoidable must those same disastrous consequences have been so in those times/early days/ without /devoid of/ experience, without /devoid of/ discernment, devoid of information, devoid of means of communication and interchange of sentiments, what little intelligence and sagacity were to be found, being in a manner monopolized by the Judge, together with a few other expedients and assistants attached to him by a community of interests and affections?
  • Title: [1 June 1805 Evidence Introd]
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    Not that this sinister interest could have been productive of any very serious mischief, had it not been for the sinister interest of the superintending /superior/ and all-ruling functionary, the Judge.

    In multiplying useless operations, it was /became/ necessary to him to multiply hands to perform them: in multiplying useless written testimonials it was necessary to multiply the hands that were to write them: in multiplying nonsense it was necessary to multiply heads that should understand it or pretend to understand it - in multiplying /augmenting/ the mass of operations, of instruments, of nonsense, all together, it was /became/ necessary to multiply tongues to talk about it.

    Each having his service to perform, each would be to have his recompense for performing /reward for rendering/ it. In this as in other lines /fields/ of labour, as the demand grew, the supply grew up along with it. Under a connection thus necessary and thus intimate, like porters crowding about a passenger at his landing, but were they ever so numerous, he could not multiply his own fees, without multiplying theirs at the same time. He could not therefore saddle the suitors with any gross quantity of burthen for his own benefit, without saddling them with a burthen of much greater weight for the benefit of these his associates and confederates. (Thus miserable /disastrous/ was the condition /situation/ of the suitor, thus fortake in mischief the germ of corruption once inoculated into the body of the law.)

    Thus it is that for every particle of the matter of emolument, (that is thus [...?] into the matter) of corruption, received into his coffers, and /together/ the correspondent portion of public mischief wrought by his own hands it became necessary to load society with perhaps twenty times the mischief /quantity/ wrought by those other hands. He has found himself in the situation of a surveyor, paid by his employer, by a per centage, say five per cent, on the money expended on the building: or the house, the office, the prison, or the palace.
  • Title: [16 April 1807 Lawyers Judged]
    Description: 16 April 1807

    Lawyers Judged

    Letter I

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    compared with each other, the state[?] effects[?] matter /business/ in the three kingdoms is altogether curious, the difference in the effect given under the same tribunal to the demand made upon it by one and the same form of invocation Appeal for the exercise of its superintending /superordinate/ authority, is altogether curious.

    The three cases I speak of are

    1. Appeal from the Court of Session, the jurisdiction of which is happily a stranger to any such distinction as that between Law and Equity.

    2. Appeal from the Court of Chancery [...?], in an Equity cause.

    3. Appeal [...?] Court of Chancery in Scotland is an Equity cause. In Scotland the Appeal made[?] execution is suspended purely and simply untill the judgment of the Court above is pronounced.

    in Ireland, execution is not /never/ suspended, but takes place as if no Appeal had been made.

    In England execution takes place of course, unless application be made a distinct application bringing suspension be made and on special grounds.

    To inveigh /vilify/ against /blame/ lawyers for being what they are and at the same time eulogize the system which makes /has made/ them what they are - to blame /inveigh against/ lawyers for being what the system makes /has made/ them is as idle as it would be to declaim against wolves for making their prey of /preying upon/ sheep.

    But to trust /to put our faith in //be advised by/ lawyers when the question is what is to be done for the attainment of the ends of justice, is as weak /impudent/ as it would be to be guided by the wolf, if he understood architecture /were as[?] adept/ in settling the construction of the sheep-fold.