18 June 1804

Procedure

Ends

Ch. False

' 2. Emolument

The tendency to civilisation, though collateral to the subject, presented a claim[?] to nature, lest (to a prejudice eye) the display of the original and not yet abolished conception in its native colours should be misinterpreted into the face of satire. Natural enemies to mankind as all lawyers have been in all ages, the existing race may be termed friends to mankind in comparison of their predecessors.

18 June 1804

Procedure

Ends

Ch. False

' 2. Emolument

In the government of ancient times, to display this corruption with which the fountains of justice were impregnated, from the first ages to the last, would be a task far beyond the bounds of this work. In a work of Pilate's it is already executed, executed with a sagacity adequate to the subject, valuous[?] to the profession, and superior to the time.

In this time a branch of observation less [...?], and less public and still more foolish, is presented by English jurisprudence. To that therefore, on the occasion of the present chapter I shall confine myself. On this ground, at any given stage of civilisation, the history of a Monarch, is with little [...?] the history of all Monarchs: the history of one of set of lawyers: the history of all lawyers.

To the true lover of mankind, the outrageous and almost exclusive domination of the self-regarding and different[?] attractions[?], is matter not of lamentation but delight, when he observes the originally hopeless encroachments, that by degrees, however slow degrees, have at length been made upon them by the social. Out of self-regarding interest, the parent stock - affections grew, assuming one independent character under the name of sympathy. Connected with the parent stock by a film invisible to the conscious eye, and at length perhaps detached from it altogether, they act with a force of their own in the judgement and the will, though naturally and most commonly in alliance with the parent interest. Hearing justice praised by any body, and spoken ill of by none, a man whenever he is not particularly hurt by justice, loves whatever he hears called by that name, whether of the service he is at every moment of his life deserving from it any part be or be not present to his mind.

18 June 1804

Procedure

Ends

Ch. False

' 2. Emolument

In England at the present time the welfare of the governed in their capacity of suitors is professed to be the sole object, and at the worst in a very great degree is the object, of the part taken by the Monarchal head of the state, and her advisers, in the administration of what is called justice. Enormous as well as poisonous[?] would be the deception, if we once suppose such considerations of the subject prevalent int he early ages of jurisprudential history. Century after century, plunder in the mind of the Monarch was the end, judicature the occasion: justice, never the accidental result, the accidental and unheeded though from other causes happily the more frequent result, was not the end, and scarcely so much as the pretence. If a Baron or Knight (for a man of inferior account was not worth listening to) made application to the King for his assistance against fellow vassals, the first question was - what will you give me? According to the answer justice was professed, or not so much as professed to be administered. Under the reign of a John or a Henry, how should any object more honourable than plunder have been so much as professed, when for ages afterwards, those whose office it was to [put the outside upon the conduct of the sovereign, their Royal Master, know no better reason to give for law sending out his retainers for [...?] Judges to hear the complaints of suitors, than the convenience of saving his own case from being wounded by their noise[?]?

A William a Richard or a John would no more have felt himself hurt by being looked upon as an extortioner, than a Homer did, at being taken for a pirate.

June 1805

Evidence

Introd.

False Ends re Judge

''.3. corruption cause

Keep this as it is, or re-write, setting out with the principles of renumeration and quoting the London Police Act as an application of them.

''.3. Corruption universal: cause, the mode in which the Judge was paid. /took payment./

We have been seeing how natural it was, (whether there were or were not an habitual exercise under some such name as that of legislative power one authority recognised as superior to that of the Judge, and as such more competent in the establishment of universally binding and settled rules /regulations/,) how natural it was (in what ever other department of the field of government the power of the legislator should have exercised itself,) that this narrow /confined/ department, the conduct of the business of judicial procedure should have been lodged or rather left to fall of itself into the hands of the Judge. We come now to see how natural, or rather necessary it was, that in the then existing state of society in other respects, this power should have been abused: abused to the utmost power of possible, not to say of considerable abuse: abused to the length of having given birth to these monstrous systems of iniquity and depredation /fraud and extraction/ which may be seen every where administered under the name of justice.

The principle of corruption the cause of this abuse is extremely simple: it consists altogether in the mode in which, in the instance of the judicial office, reward was attached to labour, renumeration /recompense/ to service. Even in the present days of private & public opulence, much more in those days of poverty the quantity of pay left capable of being increased with the quantity of labour real or apparent and the quantity of such labour left capable of being increased to an indefinite amount at the will of the Judges. Of labour so applied, a quantity adequate to the demand could not have been had /be had/ without recompense /wages/: in those days of public indigence such recompense could not have been administered /attached itself/ to the service in the only form in which, without giving birth to the ensuing corruption it could have attached itself, viz: that of settled salary, pure of incidental /occasional/ emoluments, such as in English are called fees. It might indeed have attached itself to labour and without producing any such corruptive effect have been attached even in the shape of fees, had the number of incidents productive of such fees been so circumstanced, as not to have been incresable[?] by any end[?] worthy[?] /endeavour on the part/ of the Judge, or even though they had been so increasible[?] had not the pockets of the suitors been among the pockets out of which they were to come.

19 May 1805

Evidence

Ch. false Ends 1. Judges

'3. Corruption -cause

Note. 3A to p.1.

(a) Whether factitious recompense ought /reward shall/ or shall not be attached to labour bestowed in the exercise of a public function, depends every where upon a variety of fleeting circumstances: it will depend up on the sufficiency or insufficiency of the natural reward, if there be any in the situation in which a man is placed. In this respect neither from the name of the function nor yet from the nature of it, can any conclusive indication be drawn /deduced/. In England, not to speak of judicial offices of superior rank, to a judicial office of the same rank, that of Justice of the Peace, no salary at all is annexed in general, a liberal[?] salary in certain situations, and in neither instance without good reason. But the distinction has been the result of mature experience and improved intelligence.

In the highest class of Judges - that which is composed of the members of one of those branches of the supreme legislative body, no factitious recompense in any shape, or at any rate none in a pecuniary shape, is attached to this species of service. But it follows not that the same principle can be applied with advantage to the individuals or nations.

In a rude age, whenever, a factitious recompense has been attached to labour bestowed on the exercise of judicial power, at the same time that the facility of giving increase to the quantity of that recompense has been lodged or left in the same hands, the contravention of every one of those ends, the fabrication of a system of procedure repugnant to every one of those ends, has been the certain /constant and necessary/ consequence.

Against a power thus irresistible, and continually in exercise /always in activity/ to set any bounds to the increase would in the best informed age /[...?] of the public mind/ be supremely difficult, in a rude and inexperienced age, impossible.

8 June 1805

Evidence

Introd.

Ch. False Ends. Judge

'.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?

5 June 1805

Evidence

Ch. False Ends. Judge

' 3. Corruption. Cause

Moreover in the infancy of government, an example of the disease /no such disease nor any thing like it/ having occurred, it was altogether impossible for human workmen to pursue it. In the days of Brutus and [...?], or [...?] [...?], or Alfred or William the Conqueror what prophet could have disclosed to himself any such labyrinth as that of Roman, or French or English procedure? Bribery, the corruption of rude ages, he might have seen in plenty, which way soever he cast his eyes: corruption, this crept[?] /covered/ up, as an abcess, with the complicated system of inverted[?] organisation that was the fruit of it, was a disease altogether undiscoverable by any other light than that of experience.

Intelligence therefore, no less than power, intelligence and therefore even inclination[?] was wanting, necessarily wanting, to the production of the only effectual remedy.

Increase like the smallpox was thus intended upon mankind, generation after generation smarting under it, before the remedy of fixed salaries, like vaccination, could be called in, to [...?] the [...?], and effect a cure. But should a cure ever be effected, what a prodigious mass of peccant matter to be discharged!

9 June 1805

Procedure [...?]

Note

Introd.

False Ends. Judge

Delay Causes

Delay Causes

I Unavoidable or Natural

II Factitures and Avoidable

Undue decision & Factors of Justice

Note 8 (a)

(a) In the rude ages /In these rude ages/ - (in which the germ of the existing systems of procedure first began to develop itself) how should any such suspicion have presented itself to men's minds?

For At the close of the 18 th century it had never presented itself to the penetrating mind of Adam Smith. He saw no harm in fees: neither in the character of a principle of corruption, nor yet in the character of an ill-rated /a miss-rated/ tax. To him it never occurred that the persons who derive the least benefit from the protection afforded by the courts of Justice, are those who are forced into them in the capacity of suitors. The protection which a suitor pays for, perhaps by all he is worth, non-suitors enjoy gratis. In Protest[?] against Law - Peace.

8 June 1805

Evidence

Introd.

Ch. False Ends - Judge

' Corruption. Cause

Thus it was, that, from so simple a cause as this unfortunate connection, thus it was that in the most important of all lines of service the matter of reward became, became and to the whole amount of it, the matter, the wages of corruption, conferring on /making in the bosom of/ the Judge an interest acting in complete opposition to his duty, in complete opposition to the ends of justice. Thus it is that whatever little intelligence and ingenuity was in those rude times to be found in that commanding station, was directed to that disasterous species of manufacture, making business: to the giving to the system of procedure that sort of form and texture which should render it as productive as possible in the character of a fund of fees. (a)

In our days, the hands of Judges are tied, the eyes o their constitutional superiors, the eyes of an enlightened and jealous public are fixed continually upon them, and Judges like men of other ranks, and especially in high places, trained by education know fear in their bosoms a breath /the preponderance of a bubble/ of reputation - over a mass of opulence. In those early /rude/ days, and throughout the course of ages during which under the influence of the corruptive format[?] /harm of corruption/, the system of procedure was developing itself and repining into the present state of rottenness, the Judge was fastened[?] by no rules, was subject to no inspection: no constitutional superior, or none but what was either in a state of complicity with him or in a state of sleep, the people imminently /universally[?]/ blind and stupid, rapacity in the judicial as in every other station of the judge in every other, raiding too much and wearing[?] none. Stalking forth without a mask. Stalking forth and devouring its prey - without a mark.

9 June 1805

Evidence

Note

Ch. False Ends.

' 3. Corruption. Cause

Note 9 (a). Note to Page 3.

(a) But reward - (it may be asked) in every branch of administration is it not a rule that reward, attached to service, in the view of service should /ought/ in its quantum increase in proportion to service keep pace with service? Is not this a rule, and a rule of universal unity in the renumerative branch of the service or art of government? Doubtless: and when the idea to be attached to service is made clear, it will be found to attach /apply/ to this branch /department/ of public service than to any other. But in this case the question to be attended to is what is the object properly designated by the word service? Now the service here in question the service which it is the duty of the Judge to render, is no other than that of fulfilling on each occasion the inverse ends of justice that so far as the ultimate ends of justice are concerned, the value and quantum of the service is not susceptible of majors and minors: and so far as the collateral incidental ends, avoidance /non-production/ of vexation, expense and delay are concerned, the magnitude and value of the service is not in the direct, but in the inverse ratio of the length and number of the operations performed or the increase of each suit by or under the direction of the Judge, supposing the direct and collateral ultimate ends of justice to be fulfilled. Karamosin, the distinguished Russian traveller, gives a humourous account /exemplification/ of the art of making business as practised by parties at the English, he might have added, the French, Sea Ports, on the arrival of a cargo of passengers. One loads himself with a man's hat-box, another with his cane, a third with his handkerchief if it happens to fall into his hand. They could not have been greater professionals in this art, had they studied it for years under the ci-devant French or English set of Judges.