date

15 Apr 1808 Ch. Competition
15 Apr 1808

Ch. Competition

Forthcomingness on the part of things; forthcomingness on the part of persons: of /both/ things in the character principally of component aspects[?] of the matter of pecuniary satisfaction; occasionally in the character of sources of evidence: to these same ends in so far as /directed/ ultimately to the /ultimate/ ends of justice are the [...?] of judicature in the civil branch directed. To these same intermediate ends are amongst /under the[?]/ others so far as above, the operation included under the name of imprisonment directed: adding as an ulterior end, in the case of the penal branch, punishment.

Had the ends of justice been taken by these Judges for the principal object, the course they would have taken would have been that which in every instance, so far as power was granted, has been taken and pursued by those Judges who have[?] take /not indeed/ for their principal, but for their only object the ends of justice.

Of imprisonment so far as is necessary to the purposes abovementioned, they would have [...?...?] without exception and without reserve: beyond those purposes that is when[?] those purposes[?] were[?] seem either to have been already accomplished, or to be incapable of being accomplished, (punishment excepted when[?] the case admitted of it and required it) they never would have suffered it to continue a single moment.

But to apply it faithfully and strictly to those good purposes, would have required /prompt and/ personal interviews /and exlanations/ between the party imprisoned (the defendant/ and the Judge. Such communication, as far as practicable constitutes the distinguishing character /characteristic feature/ ofthe natural system:but it is the refusal of it that constitutes the main /preoccupied/ [...?], as being essential to the purposes of that technical system which is built upon the means of natural justice.
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  • Title: [15 Apr 1808 Ch. | | Competition]
    Description: 15 Apr 1808

    Ch. | | Competition

    Such saints [...?] the [...?] they have bred[?]

    To honest sectors, as many as necessity forced into their grasp /hands/ they had made it their interest, and consequently their study and endeavour, to add as many dishonest suitors as by encouragement they could render such. To enable them to render justice to honest suitors, and in particular on the plaintiff's side of the cause, imprisonment frequently, power[?] of imprisonment was always /constantly/ necessary. But had they confined the application of it to the ends above indicated as its proper ends, it would have been, comparatively speaking of little use to them. They would have got hold of a man, but to little purpose, for he would never more[?] had long to stay in their hands. He would have been come at with proportionable facility: but consequently with so much the less profit to their underlings.

    To the purposes of distinct suitors, imprisonment as applied and managed by them is admirably well adapted, in both sides of the cause.

    On the plaintiff's side, as often as, whether habitually or though but momentarily it happens to the intended victim the defendant, to he[?] in a state of indigence /[...?]/ it [...?] the purposes of opposition[?]: of simple opposition[?} or opposition for the purpose of extortion[?], or destruction of rural[?] prosperity, as the case may be. The Defendant goes to jail: the Judge has taken care never[?] to see[?] him /made it a rule never to set eyes on him/, for fear of seeing reason for letting him out again. The Judge and his underlings receive in the first instance, and from the same quarter, the [...?] of the right of Opposition, their fees, The[?] persons[?] his[?] in fact for weeks or months, years, or life, or till the /appropriate/ purpose of the opposition[?] has been accomplished. The longer the /prisoner/ his[?] there, so much the better for the Judge: by the hands of his [...?] and instrument the Jailor, /he receives such profit as is to be extracted from the poor /imprisoned/ man's misery/.

    /Anno 1798, the Chief Justice of the King's Bench made in this way almost , │ │ a year, of the Common Pleas, , │ │ a year./

    / ( a) In Scotland, even under the technical system he does not even now. By injuries to the liberty of the subject Scotch Judges get little or nothing: nor have they any such influence on /command over/ the legislature as English ones have./
  • Title: [15 Apr. 1808 Ch. | | Competition]
    Description: 15 Apr. 1808

    Ch. | | Competition

    As to competition, if by competition be meant quarrel /contraction/, scramble for fun, that times have been during which competition of this sort has been carried out, and with no small degree of energy /[...?]/, is manifest enough. Of the history of it particulars are to be found, seen[?] for the purpose of explanation they could not be found, in all institutional books, that of the [...?] - general not excepted, and even in all books of practice.

    If the coin in which the biddings were made, had been so many contributions made to /clear advance made towards/ the ends of justice, so many mites though they had been but mites, thrown into the treasury of justice, [...?] ended would have been competition and that beneficial one[?].

    But the contributions were of no such nature, had no such object.

    The only case in which a competition of any sort can with [...?] be said to have had place, is that of the scramble among the /those/ Common Law Courts. Between the Common Law Courts on the one part and the Equity on the other, there was indeed quarrel in abundance; but competition none.

    /As to the three Common Law Courts/ The case in which those respective biddings were made was - so to speak - the liberty of the subject:- meaning the personal liberty, the sort of liberty which is taken away by imprisonment. Of their own profits they never were /have been/ disposed to give up, never willingly, if at all, have given up, a single [...?]. The liberty of the subject they have never been backward to sell to any one who would pay the [...?] for it.

    Under the original constitution /constructed[?] on the principles of the feudal constitution in which defence /national security/ as against [...?] /advances/ from without was provided for at the expence of individual security as against [...?] enemy/ the power of Judges had not received a degree of amplitude altogether adequate to /commensurate with/ the exigences /ends/ of justice. This deficiency Judges at a very early period took advantage, supplying it in part by arrangements directed ultimately and principally to their personal and sinister ends.
  • Title: [15 Apr 1808 Ch.| Competition]
    Description: 15 Apr 1808

    Ch.| Competition

    But[?] the influence of the competition as it would have been had the competition been real and open beneficial to the ends of justice, the object of contention would have been which among the several competitions should contributed /have done most by the most beneficial//best adapted// arrangements/ with the greatest zeal and efficacy towards advancement of the ends of justice: by which of known[?] for example, the satisfaction rendered to the plaintiff having right on his side should be most compleat by which of these the defendant should be most effectually[?] guarded against entire[?] less and opposition[?] at the instance of a rash or dishonest /malignant or rapacious/ plaintiff by which of them the quantity of vexation, expense[?] and delay [...?] to the judicial process should be reduced[?] to the lowest [...?] /[...?] least dimension/.

    Their[?] conclusion had no such object. In /About the/ [...?] to their grand[? instrument its /[...?] and its/ inefficacy its efficacy as to all bad purposes[?], its inefficacy as to all good ones, its [...?] /in both ends of a cause [...?]/ to all suitors its [...?] be such as they found or could make dishonest, they were all afraid: the harmony[?] was /has been/ universal and imperturbable[?]. But[?], who should have the instrument to use - that was the real /and still only considerable/ object of contention and dispute. The first that served[?] it was the Judges of the [...?] Bench, arranging[?] to [...?] the monopoly of it: then came three[?] of the Common Pleas determined to regain /[...?]/ as much as possible of the [...?] vat[?] of which they had been bullied[?] or defrauded: then came those of the Exchequer stealing[?] from both the use[?] not only of the instrument but of the branch of jurisdiction in the course and service[?] of which it was employed[?].

    /applying it to the purpose of evil practice[?] to that branch of procedure in which the most [...?] case [...?] were to be found./