29 Mar. 1805
Evidence
Securities
Ch. Procedure technical
The use of the principles of registration, as applied to this subject /occasion/, the advantage derivable from it, the sort of security held not by it, is almost too obvious to heed /bear/ mentioning. Should deception and consequent misdecision run /be suspected of running/ in any [...?] stream from any of these supposed /branch of the apprehended/ sources, measures may be taken for remedying the mischief at all times and at /in/ its [...?] stage.
A moderate share of reflection however, applying to the state of things here in question, the universal and unchangeable principles of human nature, would have been sufficient for the discovery[?] to shew, that any such conception could not but be for the most part an erroneous one. That of /with/ the man of law, as of every other sort of man, on this occasion as on every other sort of occasion, in proportion to the opportunity the end and object aimed at will be the advancement of his own particular interest: that if between his interest, apparent as well as real /in his own conception as well as in reality, on the one hand/, and the interest of the suitor as such, in other words the interests of justice, on the other, the coincidence had been constant and compleat, his pursuit of the ends of justice /adherence to the interests of justice/ would have been /be/ proportionably faithful, and except so far as any duration might have been produced by an error in judgment, the practice observed by him and the arrangements taken by him on every such occasion would have been bonâ fide directed towards their professed end: on the contrary that of on any occasion any contrarity should happen to manifest itself between the two distinguishable [...?], the interests of justice would, of course, to the full extent of the contrarity be sacrificed and [counteracted.] iniquity organised instead of justice.
29 March 1805
Evidence
Securities
Ch. Procedure Technical
Between the interests of the suitor /man of law/ and those of the man of law /suitor/ between the interests of those /the architect, and the interest of the person/ for whose use and benefit the system was supposed to be constructed, there has been at all times but more particularly at the time when the first foundations of it were laid, a most decided and almost [...?] opposition. Like other architects, this sort of architect received or was supposed to take, a profit upon his work. This profit was not only, to a considerable part of it, if not the whole, so much taken from the suitor in the shape of expense, but it was so arranged /extracted / /in such manner extracted/ as to go on encreasing along with the remaining part of the aggregate mass of expence.
26 Jan 1805
Evidence
Securities
Ch. Procedure Technical
'' Cause Lawyers Interests
''. Cause of the deviations of the technical from the natural system - sinister interest of the men of law.
All systems /every system/ of procedure, having lawyers for its authors, has of course in so far as the authors /workmen/ were at liberty to be [...?] by their own /particular/ interest in the construction of the work, had the promotion of that interest for their main object or end in view. If the [...?] administration of justice, that is the fulfilment of the promises made /engagements taken/ by the substantive branch of the body of the law, had any concern in the business the interest of the community in respect to the fulfilment of those engagements, it has been only in the way of practice, and in the character of a collateral and misintended[?] /scarcely intended/ though happily in some /a considerable/ degree an inseparable result.
So far as the paths that led to the public object /interest/ and the sinister path that led to the private and professional object happened to coincide, in so far the public object would in this state of things naturally be pursued: so far as there are[?] any want of coincidence between the two courses /paths/, the public object would be sure to be sacrificed /made a sacrifice/, in so far as the state of the public mind times admitted of such sacrifice.
Whichever of the two rival systems we were to look to, the Roman and the English, we should find the state of the times /public mind/ favourable in the highest /a very high/ degree to all such sacrifices. In both instances, the work has been not least in the way of statute law even[?] [...?], but hammered out and patched together by almost [...?] degrees, during a course /in the course/ of successive ages, and with little or no check from any capacity of superintendence on the part of that public for whose use the article was pretended to be made.
26 Jan 1805
Evidence
Securities
Ch. Procedure Technical
''. Cause Lawyers Interests
It is the evident interest of the suitor, which is as much as to say of the public, that the mass of collateral inconvenience /delay, vexation and expence/, the avoidance of which constitutes the collateral /general/ end of justice and judicial procedure, should in every /be in each/ instance reduced to the minimum. It is the interest of law, that in every instance that disastrous mass, taken in the lump[?], be [...?] and extended /drawn out/ to its maximum. Not that by delay as such - not that by vexation as such - not that even by expence as such, he has any thing to gain: or any motive that should prompt him to [...?] the account of mischief: but between these three branches of the mischief so intimate is the connection, that no one can be extended or contracted, but the two others are more or less extended or contracted along with it: and between the expence of the suitor and the profit of the man of law, in his several branches there is that unfortunate connection that the profit can not be extended, but the expence must be extended more[?] in a less degree, most commonly in a much greater: and between an expence on the one hand, and delay and miscellaneous vexation on the other, this unfortunate connection is still more intimate.
Taking therefore the whole mass of collateral inconvenience together delay, vexation and expence, the relation in /which/ point of interest the man of law bears to /stands in/ the suitor, the man in /of/ power is the man subject to his power, has been pretty[?] much of a piece with that which the architect who is paid by a per centage stands in with reference to his employer: for every shilling of profit which he /a professional may/ puts into his own profit, he saddles his employer with some number of times the expense.
26 Jan 1805
Evidence
Securities
Ch. Procedure Technical
''. Cause Lawyers Interests
To say then that in the construction of the fabrick of procedure the interest of the suitors which is as much as to say /and of the public or in either event/ the due administration of justice was really /in fact/ the object of the constructors, is as much as to say that the object of Octavius before, during or after his triumvirate, was the welfare /happiness and tranquillity/ of the Roman world, or the object of the Roman invasion, the happiness of the people of England. From the success of that invasion, in conjunction with millions of other causes come the existing British constitution, with its attendant blessings. But it may be asserted, with little of any abatement or modification, that those blessings even as much /fully/ in the contemplation of the fortunate Roman, as the benefit of the suitor was in the wishes and intentions /intentions and aims/ of those venerable personages by whose successive labours the system of English procedure has been moulded into the present shape.
The stakes[?] of the Judge /A Judge it may occur/ is one; that of the Advocate, another; that of the Agent, a third. the system /fabrick/ of procedure is the work not of either the two latter, but of the first exclusively: not of those whose conduct is regulated by it, but of those who rule it. True: but without speaking of the present state of things /present times/ which is not here in question, speaking only of past times, in which the foundations were laid, and the state of the architecture determined /plan determined/ /settled and arranged/ - so it has been /was/ these interests, howsoever nominally distinct, have really been if not inseparable, undiscerned[?].
26 Jan y 1805
Evidence
Securities
Ch. Common feature
By a /the/ fundamental and initial arrangement thus described /of this sort/ the very arrangement which took place of course from the beginning of things, in the domestic tribunal of every private family, and which in the same tribunal as well as every other in which the proper ends of justice are the ends really in view will continue to be observed as long as man is man, the purposes of honest suitors on both sides, the purposes of natural, genuine, substantial justice are compleatly answered, every purpose answered, but that of the sinister interest of the man of law. Accordingly in both systems, and in both with almost compleat success, it has been his object to exclude it.
Had it to the last continued to be in his power to exclude it altogether, the distinction I am about to make and the terms which serve for the expression of it would have had no place. This power has not been compleatly commensurate to his interests and his endeavours; and to this /the/ deficiency the involved[?] world is indebted for the distinction between regular and summary procedure. Regular is the inlogistic[?] epithet bestowed on that branch of the system in which the [...?] of it have continued to succeed in their endeavours to exclude form it /each cause/ the less lights the most obvious and most essential principle of justice
Summary is the dyslogistic /opposite/ epithet by which they have [...?] the only mode of procedure that is either conductive or bonâ fide /really/ directed to the professed and pretended object /end/: summary, as who should say imperfect, hasty: a mode in which that term and this means have not all of them been employed which would have been necessary to enable the Judge to administer the best, compleatest, purest kind of justice.
25 March 1805
Evidence
Securities
Ch. Procedure Technical
''. Security, proof
In the natural system of procedure, the law[?] of the greatest perfection but more particularly in the simplest /premature/ and finest mode of it, may be seen an[?] most important feature, which unless placed by itself /brought separately/ in a strong light, might be apt /be able/ to escape notice. This is the inseparable[?] bar it opposes, opposes at the very outset - to all malâ fide causes. By malâ fide causes understand not only malâ fide demands on the part of the plaintiff, but all malâ fide defences on the part of the defendant: on the one hand all demands on the other hand all defences, which are to such a degree /in such sort/ groundless, as that the party - the plaintiff in one case, the defendant in the other - can not but be conscious of their being so. Such is your demand, but on what grounds do you support it? On what article of law do you rely; as imposing upon one[?] in a case specified the obligation you call upon the Judge to impose upon me, and what facts do you say have happened, of a nature to bring one within that case? Such are the questions which a defendant of course would put to a plaintiff who conscious of the groundlessness of his claim should for the mere purpose of oppression seek to involve an adversary /his destined victim/ in the evils /[...?] [...?]/ of litigation. No: such questions would /no such questions would/ not be put: why? because for a plaintiff, or rather /that is/ a man who otherwise would /might/ have come forward /stood forth/ in that character - a man with such wishes in his heart, seeing /beholding/ in the structure of the system of procedure the impossibility of resolving them, would shrink from the contest /in the first instance - he/ - would never [...?] to /not have the courage to/ expose himself to encounter any such questions, from the lips /out of the mouth/ of an adversary, in the presence of a Judge, more especially if under the eyes of a surrounding audience /arch of spectators/.
25 March 1805
Evidence
Securities
Ch. Procedure Technical
''. Security proof
To the situation of the plaintiff substitute that of the defendant, it makes little difference. Preserved from hopeless insincerity by the prospect of these [...?] and unanswerable questions, a man will see beforehand the impracticability of carrying on a plan of manifestly groundless dilatory defence for the mere purpose of deferring the fulfilment of a known obligation, or continuing as long as possible the flowing in of profit from an unlawful source.
But Injury[?]? - when is the bar opposed in this case to the iniquity of him who will not stick at perjury? Unquestionably not an effectual one. But the question lies between this only natural system of procedure and all existing technical ones: and the difference is this. Under the natural system /if the sanction of an oath be called in/ /being necessarily supposed to/, a man can not derive profit from conscious iniquity without encountering the perils /risk/ attached to perjury; those perils enhanced by the obligation of encountering the scrutinizing /searching/ interrogations of the injured adversary: whereas under every technical system a dishonest man, in the character of plaintiff in all cases in the character of defendant in most cases injury /reaps/, of course in the first instance all the benefit /profit/ of [...?] /[...?] an/ iniquity, and without exposing himself to the smallest risk of punishment either for /as/ perjury or for mendacity enjoys it to the whole extent of the time that he can [...?] to give to the litigation /contest/, enjoys it at no other expence than that of paying the price which the man of law, the organizer and accomplice of the iniquity and the delay, has set upon the labour expounded by him /himself/ in the manufacture of it.
As the lustre of the game would in great part be lost were it not for the fact that lies beneath it so the excellence of the natural system would be apt to escape from notice /escape from notice/ until contrasted by the correspondent and through devious arrangements of technical procedure.
25 March 1805
Evidence
Securities
Ch. Procedure Technical
''. Security Proof
A hypocrite lawyer, whose intention /meaning/ were either to spoil /betray/ and disgrace the natural system, or to give to any technical system the appearance without the reality of its use /virtue/ in the character of a security against insecurity /self-conscious injustice/ and known injustice, would /might/ have purpose the institution /introduction/ of some such formulary as might be termed an oath of sincerity, analogous to the oath of calumny, or the [...?] expurgatorium or [...?] suppletorium of the Romanists. I swear, or I declare that I believe I have a just cause of action - I swear I declare, that I have a good defence: all this upon paper[?], out of sight of the adversary, out of sight of the Judge in some such general terms as here exhibited, and without specifying what the cause of action, what the ground of defence. Examples of the sort of sham remedy /security/ of this mask for insincerity are not altogether wanting in technical procedure.
I do not say that were this insipid /milk and water/ remedy, if applied to the extend of the demand would be altogether without its use. A Conscience there may here and there be, of so delicate a texture so delicate, as to be incapable of swallowing such a declaration, in the full and direct contemplation of the absence of all pretense of all [...?] to the advantage claimed by the plaint or the defence. But, of the comparative inadequacy of any such general /undetached/ and unscrutinized declaration a conception /preconception/ may easily be formed upon the bare view of it, and a conception that will receive ample confirmation in the course of the ensuing pages.
Of the securing thus afforded against mala fides ([...?] oh, that the thing was but as unknown to English practice as the name!) - I say with men of law /the [...?]/ for want of a name in English /an English denomination/ mala fide, there will be frequent occasion to make mention in the course of this work. On such occasions, (since there is no speaking of any thing without a name) proof of sincerity, or oath of sincerity may for [...?] be that name. But let it never be forgotten, that when speaking of this security in question /here in view/ by any such name, I mean not any /surely and simply a pre-appointed/ verbal formulary, devised /appropriated/ to this purpose, but the natural and necessary effect and virtue of the faculty of reciprocal interrogation [...?] judice, as confirmed of course in the parties by the natural system of procedure in its simplest /most simple/ and natural form as here designated.
24 March 1805
Evidence
Securities
Ch. Procedure Technical
''. Summary & Regular
A distinction that coincides in some points with the above, is a distinction the terms of which are much more [...?] - viz: that between the summary /the summary and regular/ mode of procedure, and the regular But the terms /appellatives/ in question - natural and summary on the one hand, technical and regular on the other hand - want much of being interconvertible. Taken /[...?]/ in the aggregate, natural procedure as above described is beyond comparison more summary, more expeditiously dispatched than the regular. The former has of course /naturally/ the prevention of delay for its object, the latter as naturally for the reason already mentioned the production of this inconvenience. But in the nature of things it is not in the power of the natural procedure /system/ to be alike summary in all cases. Causes there are of which form a dozen to a score may be begun[?] and ended by the same Judge in the compass of the same day: and happily of a nature thus favourable to dispatch was a /the/ great majority of causes. But if at the commencement of the cause the [...?] of a necessary witness be at the antipodes, the time spent in /necessary to/ a voyage round the globe will be but a part of the span of time necessarily enclosed[?] /included/ between the non-measurement of the cause and the termination of it. In the 2 d and 3 d modifications as above described of the natural system of procedure, the impossibility of summary justice if by summary justice be understood the speedy termination of the cause results from the characteristic circumstances by which the necessity of demand for the correspondent deviations from the shortest and straitest course is produced. In this occasion as in all others, delay /lapse /consumption of/ of time/ is the natural and necessary result of local distance. But natural procedure arises if course arises in every case as being summary; and in proportion as it fails, the failure is the result not of this system considered in itself, much less of the system considered in contradistinction to the technical, but to causes exterior to both, and to each of them alike invincible.