April 1805
Evidence
Ch. Ends 3. Delay
' 3. Necessary
It comes next to be shown why delay and precipitation are separated, as above, from the preceding heads of inconvenience, and placed in an inferior rank. It comes accordingly to be shown that in these heads of inconvenience, though different in name, no separate results are contained, distinct from those already exhibited in the form of inconveniences of the first order.
In the penal branch one effect of delay so long as it lasts is the non-application of the punishment where due: thence the disfulfillment of the prediction - the prediction of the substantive branch of the law - by which, for the prevention of delinquency the application of the appointed lot of punishment in the event of delinquency has been announced. Delay of punishment is impunity while it lasts.
So again in the non-penal branch; as well as in the penal, as far as satisfaction is concerned. Delay of justice is denial of justice while it lasts.
But the whole process of procedure - in the penal branch or especially - is in its very nature a vexatious process. Vexation is the accompaniment and the result of every step that comes to be taken in the course of it. The different shapes in which the monster juridical vexation displays itself have just been brought to view. AS the delay extends itself, so does the vexation. Delay moreover breeds incidents: every portion of delay is pregnant with these evils: each incident brings on its group of vexations: each incident too breeds fresh delay, and each delay more incidents.
[marginal note demand for expense] As it is with vexation in other shapes, so it is with vexation in its most prominent shape, expense. AS the delay extends itself so does the expense. Delay breeds incidents: each incident is pregnant with expense: each incident breeds fresh delay: and each fresh delay more expense.
12 April 1805
Evidence
Ends.
Ch. 2 nd Order
' 3. Precipitation
The matter of fact - or, as we may say, considering them in this point of view, the lights necessary to the formation of a just and sufficient ground for the decision of a Judge, whether it be the ultimate decision, or any preliminary decision, may be thus classed.
1. Evidences - matters of fact of all kinds exhibited in the character of evidence -
2. Arguments - applying on the question of fact - reasonings considerations presented by or on behalf of the parties on both sides in the view of influencing the persuasion to be derived by the judge from the contemplation of the evidence on both sides.
3. Arguments applying to the question of law: to the question whether the facts respectively exhibited by the parties in the character of inculpative or exculpative, aggravative, extenuative, or exceptive /exemptive/ events with reference to punishment - collative or ablative events with reference to rights - right to satisfaction included - and their correspondent obligations are such to which those qualities are to be understood to have been respectively attributed by the law.
4. Steps taken in the course of the litigation, from its commencement to its termination: form the summons or arrest, to the execution of the order resulting from the ultimate decision given by the Judge: which steps, on the part of the parties consist either in the actual exhibition of such evidences and arguments, or in steps of a preparatory kind, tending to bring on, or retard, or prevent the taking of the other principal steps just mentioned.
5. Deliberation held in the case of a single Judge within his own breast - in the case of several Judges each within his own breast and with his colleagues - concerning the decision to be given on the subject of such evidences and arguments - and incidentally, on the occasion of any such step, concerning the propriety of it, or the effect to be given to it.
12 April 1803[?]
Evidence
Ends.
Ch.
' Precipitation
From the view thus taken of the several classes of lights or grounds of decision, which it may be the effect of an act of precipitation to exclude, as will soon be manifest enough, it is evident how far this head of inconvenience is from being in respect of its effects, what at first glance it might be thought to be, the exact counterpart and opposite of unnecessary delay. By unnecessary delay, the three negative inconveniences of the first order - non-application of punishment where due, non-application of satisfaction where due and non-collation of rights where due are produced to a certainty, and continued while it lasts: but in virtue of the operation of the same cause a chance more or less considerable of the ultimate and perpetual existence of these same inconveniences is moreover produced according to the nature of the case, penal or non-penal. Is produced: and not only of those negative inconveniences of which the plaintiff in the cause is the victim but of their respectively opposite positive ones - application of punishment where not due - application of satisfaction where not due (and thence of the burthen attached to the obligation of administering it) and collation of rights where not due (thence imposition of the mass of burthensome obligations by the imposition of which those rights are conferred.) The burthen of which falls upon the defendant.
To precipitation of the other hand, stands attached, it is true, a chance more or less considerable of the existence of all those several /six/ inconveniences of the first order in the several cases to which they apply, and to the prejudice of the cause of the plaintiff or that of the defendant, as it may happen. A chance, yes: but it has not in any case any one of those inconveniences for its certain consequence.
A Judge gives at the very first moment, at the very first word spoken or exhibited to him, the very same decision which he would have given, had he given the fairest and fullest hearing to both parties: at the end of all such steps as either party thought fit to take.
The case is everywhere a conceivable one, and being the most simple one, is conceivable indeed, well more
12 April 1803
Evidence
Ends
Ch.
' Precipitation
Suppose the precipitation to exist in the highest degree possible. Suppose a decision meant to be an ultimate one given by a Judge at the very commencement of the cause - no proof received: no argument heard: decision given in favour of the plaintiff or in favour of the defendant, at the first word.
Note
If in favour of the plaintiff in the penal branch it will be punishment administered, or satisfaction administered, or both according to the nature of the offence; if in the non-penal branch, the demanded right conferred: if in favour of the defendant, in the penal branch the defendant will have been declared (not guilty consequently) not subjectable to the punishment required not bound to afford the satisfaction demanded; if in the non-penal branch not subjectable to the obligation necessary to the collation of the demanded right.
The decision thus given at the very commencement of the cause - thus given by precipitation, and for want of the allowance of the portion of time requisite for the affording room for reception of the requisite evidence, arguments, and steps - may be no other than the very decision which would have been given had the utmost portion of time been allowed that the nature of the cause required - had there been no precipitation in the case. Such might have been the result: and abstraction made of the particular nature of the cause, it is just as probable as the other. The cause, supposing it a simple one, has but two sides that of the plaintiff and that of the defendant; the right side and the wrong one. If the decision be determined by cross[?] and file, the chances are as many in favour of his deciding in favour of the same side in consequence of the precipitation as that in which he would have decided without any precipitation, as there are in favour of his deciding on the different side.
12 April 1805
Evidence
Ends
Precipitation
But if notwithstanding the precipitation the decision is the same as it would have been without any precipitation, and the decision that would have been given had there been no precipitation, would have been the right one - was on the right side - on this supposition no inconvenience at all of the first order would have been produced by it.
So much as to the inconveniences of the first order. AS to the inconveniences of the second order vexation and expense, no inconvenience of either kind supporting are produced of the first order, can it be in the power of precipitation to produce. On the contrary the effect of the precipitation will be to make a defalcation from the amount of both of these inconveniences a defalcation the magnitude of which will be in the direct proportion of the enormity of the precipitation, considered in the light of an abuse.
Note: To exhibit a comparative view of the relative magnitude of the two contrasted inconveniences thus placed in the same order, is meet not to the present purpose. On the present occasion the sole business is merely to exhibit, each in its proper colours, the relation borne by each of these two inconveniences of the third order to the inconveniences of the first and second orders. Of precipitation, the mischief sill be found to exist chiefly of alarm: once recognised by the public or even suspected precipitation cannot but be apprehended, (and by the whole tribe of suitors,) as a perpetually impending cause of undue decision in all its shapes and injustice. The Parties affected are not so much the individual suitors in the individual cause in the course of which the precipitation manifests itself, as the whole species of suitors: that is all the members of the community taken together, in the character of individuals liable to become suitors.
31 May 1805
Evidence
Introd
Ch False Ends
' Epilogue
'' 5. Channels through which the matter of corruption may find its way to the Judge.
Where things are established upon any such secure and solid footing, what Judge can do otherwise than find a foreman in Judge Blackstone? By what Judge can any doubt be entertained, but that the intricacy of our legal process will be found, when attentively considered, to be one of those troublesome but not dangerous evils, which have their root in the frame[?] of our constitution, and which therefore never be cured, without hazarding every thing that is dear to us!! what is here meant by us? Us people or us lawyers?
this not for my Book but my loose Pamphlet It has no faults, or I no faults can spy. It is all goodness, or all blindness I.
Thus candid could even love be in the person of a poet but candour like this is not to be expected in a lawyers' love. He allows of no such alternative. The all perfection of his must be an article in the word not of himself and squire, but every passenger that he meets on his way.
2 June 1805
Evidence
Introd.
Ch. False Ends. Means
' False Suit
'' Use of Falsewit to the man of law.
False wit, is a generic name by which Addison in his Spectator, has banded together a number of innocent verbal games plays upon words, frolics of the imagination, that in these days, have afforded the matter of delight to thousands upon thousands. [...? ...? ...?] and so forth. bundled together, and for what purpose? like tares in the Gospel only to be thrown into the fire. A certain degree of expansion of mind led to set his to wish /work/ to put his readers out of concept /consent/ of these innocent amusements: a further sign of liberality might have taught him to let them alone. Suppose one to have succeeded in depriving a man of law of his source of amusement, what are either of us the better for your success. By the display of my own superiority I have afforded a gratification to my own pride: but do you, do you whom I have been robbing of your pleasure, owe me any thanks? By no means: the gain such as it is, is all mine: the result to you, is so much less. A party of young men are amusing themselves in a trap-ball ground. What thanks would they owe me if going up to them and them with an harangue, I were to succeed in convincing them that the trap-ball was a false game, and tennis (a game which they could not afford to play at) the only true one.
Apply this to pecuniary, to poetry to anything: to hexameters and pentameters with rhyme, as well as to debt without name. To body or to mind, whatever gives pleasure without giving preponderant pain has its value, a value which runs exactly in proportion to the pleasure. Lord I thank thee that I am not as other men are: such, meaning the herd of vulgar men, was the boast of the pharisee. Such is among the boasts of the modern man of taste.
2 June 1805
Evidence
Introd.Ch.
Would you wish them to see a ground in which the appellation false suit the epithet false with the expression of censure attached to it may be employed with real advantage, under the auspices of truth and justice[?] to turn to jurisprudence. It is there you may see false suit, false suit in abundance, employed for the worst purposes, and with but two extensive an effect: - to nip the faculty of reason in the mind to deprive the disective faculty of its sharpness and its strength: to instill in the mind of the lawyer the art of deception, and in the mind of the suitor the disposition to be deceived: to teach men to be satisfied with sham reasons, as they would with true ones.
To look upon the man of law as their friend, and him who would rescue them (from his grip), as their enemy.
To suspect be jealous of their friends, and have no confidence but in their enemies.
To look up on remedies as poisons, and poisons as remedies to teach them to ascribe some of the worst of their afflictions to a wrong cause.
[marginal insertion: in jurisprudence as in religion, swallowing absurdities is an exercise of faith, and faith is fortified by exercise.]
To accept of any theory as a reason from those who never speak to them but to deceive them and whose interest is in opposition to theirs, as that of the wolf is to that of the sheep.
To regard their afflictions as incurable, by referring them to a wrong cause.
To regard every implanted[?] and carefully cultivated abuse as an unextirpable /ineradicable/ weed, deep rooted by the hand of inexorable nature.
(It is a truth but too well known by imposters of all sorts) the more obsequious the pupil, the more powerful the instructor, and the more absurd the doctrine the stronger and more conclusive the proof given of the obsequiousness of the pupil, and of the power gained by the instructor over his mind. [marginal note: Imposters of all sorts master this; imposters of all sorts build their art upon the strength of it.] The sillier therefore the research the baser the coin which the pupil can be led to pay himself with under the name of a reason, the firmer the hold which the deceiver has on his mind.
2 June 1805
Evidence
Intro
Ch. Means
Twenty years is the apprenticeship which a lawyer must serve before he is converted into a sage: twenty years is the time he is thus employing himself about the ends of justice. But of every twenty years thus employed about the ends of justice, if any part is employed in the endeavour to fulfil them, at least an equal part at least must have been employed in the endeavour to disfulfill them. In truth more than an equal part: for the greater the difficulty the greater the time and labour requisite to surmount it: and again, the greater the difficulty, the greater the glory, not to speak of the pay: and the greater the glory the greater the pleasure: the greater the pleasure in prospect the greater the existence[?] to which it gives birth.
The lamp of reason is kept burning in man's bosom by the breath of nature /the light of reason shines of itself/: no small labour is necessary to find it out or smell it.
Twenty years then of a sages apprenticeship are employed about injustice, some of them in combating it, more of them in helping it: set down the whole twenty, as if employed in combating it.