24 March 1805
Evidence
Securities
Ch. Procedure Technical
Such has been the end, the sinister end to the attainment by which the generations of the man of law, the constructor of the technical system, as will be seen, have all along, but more especially at the commencement been directed. Such the sinister the illegitimate end of judicature: what then it may /will naturally/ be asked is its relation, whence its opposition to the straight, the legitimate ends of judicature, the ends of justice? The question is a reasonable one, and the answer is as follows -
What is profit to the man of law is expence to the suitor: the object /subject matter/ /thing/ the same, the name only different /denomination above diversified/, according to person in /with/ relation to whom it becomes the subject of discourse. The difference is that of the money that on an occasion of this sort in the shape of expense goes out of the pocket of the suitor, it is not /seldom/ the whole, seldom more than a part that in the shape of profit, goes in to the pocket of the man of law.
This difference this deficiency is matter of misfortune to the suitor to the whole amount of it. The suitor lying altogether at the mercy of the man of law, the expence /expenditure/ actually imposed has in a great measure been created and imposed by him on purpose, for the sale /purpose/ of the profit to be extracted from /out of/ the expence /expenditure/. But as the quantum of the expence being created by the man of law, has been dependent upon his pleasure, though under this condition that no more than a certain part of it a certain proportion of it can in the shape of profit be swept by him into his own pocket hence it is that the suitor has every where in the hands of the man of law, the sovereign arbiter of his job, found himself in the situation of an unexperienced employer in the hands of a dishonest Architect, paid by a per centage in proportion to the expenditure: for every penny which the trustee puts /can put/ into his own pocket, he finds himself under the necessity of taking another or perhaps a /an indefinite/ number of others out of the pocket of the unhappy principal.
24 March 1805
Evidence
Securities
Ch. Procedure technical
Thus it is that in the very nature of the case /things/ between the interests of the suitor, in other words the ends of justice, the legitimate ends of judicature, and the sinister ends of the man of law, the illegitimate ends of judicature, there is a wide and most unhappy difference, a strong and almost irreconcilable opposition: and the party /parties/ bound by the arrangements being altogether at the mercy of the author /authors of those same arrangements/, the consequence of this disastrous state of things, and the fate of the weak /weakness/ thus lying at the feet o the strong, may without much difficulty be deduced from the general principles of human nature: and whatsoever conception /inconception/ may thus be formed a person will receive but too ample confirmation from demonstrated experience.
Vexation and delay (understand vexation distinct from and superadded to expense) are in conception distinguishable from expence: but in reality so intimate is the connection between the three modifications of the inconveniences /mass/ attached to judicature that a portion of either will seldom be produced, but a /that a fresh/ portion of each of the other will be found adherent to it. Of the nature /[...?]/ of this connection, more will be said in another place: at present,suffice it to bring to view /just to notice/ the existence of it.
Thus it is that to produce a given quantum of profit to himself, the man of law has found it either necessary or at least convenient to impose upon the suitor not only an expense to the same amount, but an expense frequently to a much greater amount, aggravated by a mass of inconvenience in the shape o vexation and delay, (not to insist upon the collateral vexations showered down upon third persons without number or licence[?]) to a state greater amount.
[058-294]
24 March 1805
Evidence
Securities
Ch. Procedure Technical
by the legislator, had his endowments been adequate and his attention duly and steadily pointed to the task, the consequences of this unhappy contrarity of interests might originally /from the first/ have been, and may at any time be obviated, and the mischief in a great degree avoided. Unhappily the legislator, repelled by the factitious difficulties of the subject, has every where, in a great degree /for the most part/ shrunk from the task, having the arrangements of procedure to be settled /[...?] [...?]/ in the way of jurisprudential law, by his inadequate /incompetent/ and essentially incapable vice-gerant, the Judge /the man of law himself/: or where in the station of legislator, and in the form of statute law, a man has stood forth to change the system of procedure of this or that portion of the mass of abuse which has been seen adherent to it /with which it has been seen to be imputed/, the legislator has been no other than the name of law himself, with all his vices and imperfections, the fount[?] /offspring/ of his sinister interests upon his head, employed by the sovereign to undo his own work, to oppose his own interests, to counteract /frustrate/ and impede /frustrate/ his own designs.
March 1805
Evidence
Securities
Ch Procedure Technical
In the manufacture /organizing/ of misdecision, in the counteraction of the direct end /ends/ of justice, the interest under which /the influence of/ the men of law has been operating /establishing his arrangements /his works// are not quite so obvious, but scarcely less decided and efficient. In a double way, by a double force, he has been urged /prompted and induced/ to set up iniquity as a trash[?] to aim at. /work iniquity in performance to justice./ Misdecision, if on a ground foreign to the merits, and at the same time not final and conclusive, will operate upon him to whom the injustice has been done /whose prejudice the decision has been pronounced/: will frequently operate upon him. but as a spur by which he will be urged to seek, in a corrected cause, the justice which is his due. To this consideration to this cause may all decision on points foreign to the merits all decisions pronounced on any occasion /of the numerous occasions/ on which the word nullity, and its conjugates /quasi-conjugates/, and correlations, will /invalidity/ and void, quash, set aside, nor count to be employed.
But whom under the auspices /shade/ of uncontrouled power, the workings of personal interest /the slow and secret but [...?] and indefatigable/ in the breast of the Judge, to the [...?] displaced /[...?]/ love of justice, an inward and pale[?] affection and predilection for injustice, an indifference /a [...?]/ for justice, or rather /of not/ a much more pernicious sentiment /affection/ is the sort of affection, which may upon a multitude /the prevalence and influence/ of occasions may naturally be expected. Of the source of this affection with indolence, rash decision, misdecision for want of thought, will naturally be a most frequent fruit: and to this cause may be inferred those exclusive rules /rules of exclusion/ of which the law of evidence is in a great part composed, and by which it has been reduced in that state of depouration /depravity/ the marks of which will in the course of this work be but too conspicuous.
24 March 1805
Evidence
Securities
Ch. Procedure Technical
Thus it is that the man of law possessing /comprizing/ in his own breast every endowment every condition necessary to the accomplishment of the work of mischief and injustice /deeds of darkness/, inclination, power, appropriate knowledge, has on different occasions pursued /organized/ the game of injustice through roads somewhat different: for the sake of profit /thus[?] proportionably attached/, he has created in factitious and abundant masses the mischief of expence vexation and delay: and thus he has travelled /laboured/ in opposition to the collateral end o justice. For the sake of the profit to be extracted in a second /an expected subsequent/ suit, he has decided against /the merits that is against/ justice in a first suit /preceding one/, and thus he has run counter to the direct end of justice. In the [...?] hope of a second suit by the substitution of [...?] to the refuted evidence - for this cause, or perhaps through mere indifference giving way to the first impulse, by excluding evidence he has excluded justice: and thus for mere want of thought, as the [...?] whistled he has run counter to the same ends and stumbled upon injustice. Less[?] for want of thought, as there /above/ by dint of thought, he has run counter to the same ends.
23 Mar. 1805
Evidence
Securities
Ch Procedure Technical
''. Disadvantage[?] [...?] [...?]
Under the first and second of the three modification From the appearance of the parties in the presence of the Judge in the first instance the following good effects result of course /one good effect takes place/ No litigation perfectly /altogether/ groundless can be carried on /any further/ on either side /on either side - advanced/: no claim preferred: none resisted, for the mere purpose of opposition.
Of the importance of this arrangement no totally adequate idea can so effectually be obtained by any other means as by considering /observing/ the state of things that results necessarily and universally from the want of it.
In the character of plaintiff, a man not being subjected to any questions either on the part of the defendant or on the part of the Judge respecting the grounds of his claim, and the circumstances that present it to his conception in the character of a just one, has nothing but the expence and vexation attached to the litigation in the character /[...?]/ of plaintiff to restrain him from subjecting to the correspondent mass of expence and vexation any person whose price he is desirous /content/ of formenting or opposing at that price In the state of things, every mad /wicked/ man who is at the same time rich enough to support the expence feels /sees/ himself in possession of a power, the force of which increases /goes on increasing/ with every atom[?] of expense vexation and delay /which in the part[?] of cause[?] in question [...?]/ that happens to be attached to the situation of Defendant. Is it a sum of money, or a specific article of property that he coverts? It is not necessary that it should ever so much as have entered into his own conception that he has the smallest so much as the shadow of a right to it: the amount of the costs of suit being known on one hand, the amount of the Defendants relative pecuniary ability - of the quantity of the matter of wealth that he is able to employ in this way in his own defence being known, on the other hand. If the latter quantity be less than the former, the victory is secure.
23 Mar. 1805
Evidence
Securities
Ch. Procedure Technical
Let even Be the degree of ability /power of persistence/ on the part of the defendant be ever so sufficient, if through timidity or indolence the resolution /determination/ be wanting, and that determination be known, the victory /the jus nocende[?]/ to the oppressor in the character of plaintiff is equally /still alike/ secure.
In the character /station/ of defendant, exactly the same oppression, exactly the same effect, may with equal certainty be produced by almost exactly the same means. Secure against assistance on the part of the destined victim, a man /the oppressor/ in this case has but to inflict in the his own hand the [...?] injury, instead of employing in the character of plaintiff, as he would have to do, the hand of law.
To this plan of intentional injury grounded in the assurance /thus derived[?] eventual/ of essential /impregnable/ defence, the actual assumption of the character of defendant is not by any means necessary. The assumption of this character depends so [...?] evident /in the first instance/ not upon a man's own act but upon the act of another man in the character of plaintiff. Where Titius[?] has commenced the suit, then and not less it sits with /the option devolves on/ Sempronius whether or not to defend it. The success of the plan is alike decided, whether the victim, impressed[?] from the first with the fruitlessness or ineligibility of resistance[?], abstains from ever be assuming the character of plaintiff, or whether, actuated by the same /like/ considerations, he abandons it sooner or later after having taken it up.
23 Mar. 1805
Evidence
Securities
Ch. Procedure Technical
Though in the character of defendant, or rather /to speak/ strictly of a person prepared to become defendant, injury where the state of the law /legal arrangements/ is as /still more/ easily and securely operated thence /and that for the purpose /in the view/ of oppression/ in the character of plaintiff, it is not in any such /that precise/ view it is not by men occupying any such commanding station of an oppressor, that under a system of procedure favourable to injustice, mischief unjust defense is produced in greatest and most deplorable abundance. Of the mischief /injuries/ then[?] in this character, not overbearing opulence but its opposite poverty is by much the most frequent cause. To stem /put/ off as far as possible the evil day, to prepare for chance /flight/ of place, and in the mean time to remove out of the reach of justice that portion of the matter of wealth that ought to be /should be/ employed in satisfying the demands of justice, these /such/ are the natural objects /aims/ of the improbity, the too natural accompaniment but too naturally associated with falling fortune /fortunes/. In this state of things, whatever means of procrastination are afforded by the weakness of the law /defects of the legal system/, natural or fictitious, are purchased of course at the price set upon them by the vendors: and stock /means of payment/ /assets/ which should have gone into the pocket of the plaintiff /to the plaintiff/ to satisfy his demands, is shared by /between/ the dishonest defendant and the men of law: between the weak author of the inequity /unjust/ the various classes of its protectors.
Such is the tyranny that takes place of course wheresoever this characteristic feature /essential arrangement/ of the natural mode of procedure is departed from and dispensed with: the tyranny of the rich over the poor /indigent/. Such is the short description of it, but by this short /so short a/ description it is not as yet placed in the darkest[?] which is at the same time the justest point of view. A tyranny of class over class would be bad enough: but the tyranny thus established is the tyranny of individual over individual in each class. Comparing class with class, it is of advantage that superiority of power is professed by one class over another should be professed by the [...?] - Why? not because in opulence /superior/ taken by itself there is any [...?], in inferior any domestic but because between superiority of wealth on one hand and superiority in probity as well as understanding on the other there is a natural connection. Superiority in both respects is the work of education and comparing class with class the means of education are abundant in proportion to the degree of opulence. But in the tyranny here in question the oppressed being unlikely to be of the same /equal/ rank (not to speak of superior) with the oppressor, the subjection thus established is unmixed /purely/ evil, uncompensated /unaccompanied/ by the least particle of advantage.
23 March 1805
Evidence
Security
Ch. Procedure Technical
The powers which under the natural system were necessary to render the domestic /original/ mode applicable to the purpose of public judicature, have already been brought to view. If /Supposing/ the ends of justice to have been the ends of justice /jurisprudence/ judicature, it might naturally have been expected that whatever deviations were made by men of law for their own sinister purposes from the natural system, these necessary powers /additions/ would at any rate have been made to it - made upon a regular plan and to the fullest extent. The picture of /The prospect provided by/ actual law will present a very different prospect. The [...?] /imperfection/ of the technical system will be not less conspicuous by what /the good/ it has left undone than by what /the mischief/ it has done. For bad purposes, infinite activity: for good purposes, negligence and impotence /nothing/.
We have seen those things which we ought not to have done - we have left undone the things which we ought to have done.
29 March 1805
Evidence
Securities
Ch. Procedure Technical
A question here presents itself. - A system perfect in the first instance, and rendered less and less perfect by /growing less and less perfect with the growth of/ experience - can this account of the matter be a probable end? Is not this the path of the golden age? Every other branch of science keeps and ever has been and still keeps on advancing with the progress of experience. In law /legislation/, the first of sciences, and in the law of procedure in particular, is there any thing that can /capable/ constitute it an exception to the rule?
Yes verily: with substantive law we have no concern at present. But in the case of adjective law - the law of procedure a cause[?] may be assigned, nor that an unobvious one, by the force /virtue/ of which in past ages a prodigious degeneration could not but have taken place, howsoever it may fare with /whatsoever in this respect may be the destiny of/ future ones. From known principles of human nature came the general rule: from the /other/ equally known and [...?] principles of human nature came the exception which we shall have occasion /are now called upon/ to bring to view.
Among mankind in general /at large/, a general conception seems to have prevailed, and even to be still prevalent, that the fulfilment /attainment/ of the ends of justice, the fulfilling /accomplishment/ of the predilections delivered by the substantive branch of the laws, and that with as little collateral inconvenience in the shape of expence vexation and delay, as possible, has been really and bonâ fide the end and object to /to the attainment of/ which the practice ordered[?] and arrangements made by the [...?] of the adjective branch - the system of procedure - has really and bonâ fide been directed. To propagate this /implant this/ opinion in the minds of mankind in general there has been, as may naturally be imagined, no want of industry on the part of the man of law: and as it is only through the medium of the man of law - his writings, his discourses - that any conception in relation to this or any other branch of the subject was to be obtained, no wonder that the conception /imposition/, true or false, intertwined[?] of this matter by mankind in general should have been such, as it answered his purpose to impress /communicate/ and propagate..