24 March 1805
Evidence
Securities
Ch. Procedure Technical
''. Summary & Regular#
Between technical and regular there is no such coincidence as between their respective opposites, natural procedure and summary. By technical /the technical system of/ procedure I understand that system of procedure - every system of procedure that has had men of law for its authors - men in law left free to act /fashion the system/ by their own powers, in pursuit of their own personal, (what comes to the same thing) professional, and like in either case sinister, ends. By regular procedure is generally and perhaps universally understood - understood by lawyers themselves, by whom the names characteristic of the distinction between the two systems was invented, that same /self-same/ system which has just been mentioned under the name of technical. Whatever application and extent the natural - the in general summary system has received, has been given to it, with or without their approval concurrence /cooperation/, but at any rate against their interests, against their prejudices, and in spite of their reclamations. In their vocabulary, to the very man[?] [...?] the name summary is evidently /manifestly/ attached itself. By summary they understand, and wish others to understand, precipitate, and through precipitation imperfect: a system that in proportion as it is summary wants something of that which is /is deficient in those ingredients which are/ necessary to its perfection /being compleatly suited to its purpose/. That it is regarded by them with an evil eye is manifest not only by its opposition to their sinister interests - not only by their sollicitous[?] [...?], + but by this plain /simple/ and universal fact - the more they have taken[?] to avoid the adoption of /copying of/ it, notwithstanding its under[...?] possession of that [...?] of which as far as can be without the reality and the merit they are on every occasion so sollicitous to obtain the praise.
9 April 1805
Evidence
Introd.
Ch. Procedure Technical
''. Oppression Secured[?]
In the prosecution of this plan of iniquity the sinister interest of the man of law has had for its natural ally, and ready coadjective[?] the interest of the mala fide suitor, in both his state as that of plff and that of defendant, and in all his shapes: the opulent oppressor; the needy profligate, who having a certain portion at command out of the couch of his forbears, chooses rather to employ it in purchasing the means of eluding /a licence for injustice/ /escaping from/ his obligations than in complying with /fulfilling/ the demands of justice.
Indeed in the nature of this confederacy /[...?]/, the part taken by the man of law like that of the shopkeeper in relation to the customer must necessarily[?] be but secondary and passive. By the man of law a [...?] is filled up for the sale of two sorts of licences: to improbity coupled with if overbearing wealth a licence for the practice oppression an oppression licence: to improbity coupled with indigence, a licence for defrauding creditors of their due: - in a work a cheating licence.
The nature of this natural partnership the connection between the two Co-partners - resembles (it may be seen) in a considerable degree that between the Receiver and the Thief and the Receiver of stolen goods. The Thief in his line[?] and the dishonest suitor in his are the active partners by whom the business is to be set a going. The Receiver in his line[?] and the man of law in his line these though not /by no means/ sleeping, are comparatively quiescent partners: what the Receiver furnishes /sells/ to the thief is the means of profiting by iniquity: what the Lawyer furnishes /sells/ to the suitor is the means of practicing it.
9 April 1805
Evidence
Introd.
Ch. Procedure Technical
In countries in which the different[?] and self-regarding positions have been more than ordinarily strong, and the arm of justice more than ordinarily weak, profligacy has risen to such a pitch, that a /to/ man who wished /whose wish so were/ to bereave an enemy of his life, houses of call known as such were open, where an assassin /a hand for the bloody work/ /a murderer/ might be tried, as a servant /a [..?] of milk[?], or a hand/ for ordinary domestic work may at a Register office in London /England/. Even in these countries however it does not suppose that depravity, ever secured to any such height, as that a sort of service /species of industry/ /labour/ thus fatal to human life was every where altogether exempt from danger. It is to the profession and office of the man of law it is to the Bar and the Bench that we must look for a hand selling itself every day to the working of known iniquity in all its shapes in a shape of so elevated a situation, as to be altogether exempt from the punishment which at every [...?] is ready to the practice of iniquity upon a smaller scale.
10 April 1805
Evidence
Securities
Ch. Procedure Technical
''.1. Definition
Ch. Of the Technical System of Procedure
''.1.
Under the common denomination /name/ of technical procedure let us comprehend, once for all, every system of procedure, from which the characteristic /distinguishing/ features of the natural system, as above delineated, are excluded: - which is as much as to say, every system which has been the work of lawyers /derives its existence from the power and industry of professional lawyers/.
Having had for its efficient cause the powers of lawyers - a virtual though unavowed and scarce perceived power of legislation, - committed to them by the [...?] or rather abandoned to them by the negligence and imbecillity of the rightful /competent/ legislator, it would of course, and in virtue of the /a/ universally prevalent principles of human nature, have for its object, the promotion /furtherance/ of the interest - the common interest - of the persons employed in the /its/ construction of it. of the possessors of that power, for its final cause the profit capable of being extracted from it, for its final cause.
8 April 1805
Evidence
Securities
Ch. Procedure Technical
''.2 Ruling Interests
Had the interest of the organizer of the technical system the source of law, coincided exactly with that of the members of the political community /family/ in the character of suitors, if - or without selling and stopping to look for any such exact and mathematical coincidence, had it agreed with that degree of agreement /exactness/ with which that of the head of a domestic family agrees with that of the whole family taken in the aggregate, in either case the technical system actually established would have been as /no less/ conformable and conducive to the ends of justice than the natural: or rather there would have been no such technical system at all established /no such system as the technical would ever have been established. /have come into existence./. The system established would have been the domestic system: with only such enlargements and additions, as were obvious to common sense, being indicated and [...?] and indicated by the encreased largeness of the scale. In a word it would have been what as will be seen further on the summary actually is, drawn out only into length and extended in each particular instance to the measure /extent/ indicated in that instance by such of the natural and necessary causes of complication and delay as happened to attach upon that case. +
Unfortunately the interest of the men of law is rarely coincident with, and in many points directly opposite to the interests of the suitors, and consequently to the interests of justice. By the natural system of procedure the interests of the suitors would have indeed been promoted /provided for/, and that most preferably: but his own interest but imperfectly: imperfectly indeed in comparison with that degree of perfection in which they are provided for at present: and to this [...?], and disagreement the suitor is indebted, as will be seen, for in this infinitely [...?] differences [...?] the technical is distinguished from the natural system of procedure
+ See Ch. [...?]
10 April 1805
Evidence
Securities
Ch. Procedure Technical
''.2 Ruling Interests
Here as elsewhere, judging from the known /predominant/ principles of human nature, to predict /for predicting/ what the wish would be, the workman having full powers, or being left to themselves nothing more was /would have been/ necessary, than to observe /consider/ what course, in every part of the business would be most for /favourable to/ their interest, [...?] productive in the greatest degree of their own personal, or (what in this case comes to the same thing) professional and official, profit and /or/ advantage. The state of things /of the results/ by which that advantage /object/ is promoted in the highest degree the description will be very simple
1. That the aggregate mass of profit (Lawyer's profit) extracted from the aggregate mass of suits, carried on within each a given space of time, may be as great as possible.
2. That accordingly the greatest possible quantity of profit be extracted. from each suit.
3. That, of suits capable of being made to yield profit, the number be made as great as possible.
4. That of suits not capable of being made to yield profit the number be made as small as possible: sheer labour, labour without profit, being the only result afforded to the lawyer by suits thus circumstanced.
10 April 1805
Evidence
Securities
Ch. Procedure Technical
''.2. Ruling Interests
5. That, in so far as the profit to the lawyer consists of so much expence to the suitor, converted into that shape, the expence to the suitor be in each instance made as great as possible: and thus, whether of any given mass of expence, the whole to be as [...?] [...?], so as may [...?] a part of it be thus convertible
6. That in so far as vexation in any shape whether to the suitors or others be productive of expence or inseperably attended /connected/ with it, that expence being convertible, in whole or in part into profit as above, the quantity of vexation be in each instance made as great as possible.
7. That in so far as delay is productive of profitable expence as above described, or inseparably attended /connected/ with it, the quantity of delay be in each instance made as great as possible.
8. That in all instances /every instance/ in which misdecision would not be productive of any greater degree of professional /lawyers/ or official profit than right decision, the right as far as it is known which that is, be the course adopted in preference: at least so far as the public itself understands which is the right course: because by that course, the /approbation and acquiescence of the/ public upon whose approbation /humour/ /[...?]/ the reputation of the lawyer /man of law/ depends, and by whose acquiescence his power is constituted, is most likely to be secured /consiliated[?]/ /obtained/: - always understood that the particular labour of finding out this best course be not so great in each /any/ instance, as to preponderate when set in the scale against this general advantage.
10 April 1805
Evidence
Securities
Ch. Procedure Technical
''.2. ruling Interests
continued
9. That in all instances in which misdecision would be /is/ productive of a greater degree of professional /lawyers/ or official profit than right decision, misdecision /the wrong course/ be the course adopted in preference: if /at any rate provided/ a pretence can be found capable of reconciling /hiding from/ the eye of the public to the injustice.
Note
If, the misdecision thus pronounced to the prejudice of the [...?] party who is in the right the effect be confined to that individual suit, having open to him the expectation of right decision, that is of a decision favourable to him, in case of another suit carried on in relation to the same demand, the natural effect of such misdecision is to produce two suits instead of one /give birth to a second suit in addition to the first/.
In this interest may be found /traced/ /seen the source/ the origin of decisions on the ground of informality , or nullity /a principal source of that class of decisions which are pronounced on/: decisions on grounds of all sorts foreign to the merits. Add Appeals Injunction &.
[...?] device[?] of technical procedure: device[?] for increasing the number of profitable suits: also of the mass of profitable proceedings in each given suit. Decisions on the ground of informality.
10. That whatsoever be the amount of profit extracted from the aggregate mass of suits, by the construction of the system, the quantity of inconvenience sustained by themselves in the extraction of it, viz. in the shape of vexation and delay (vexation including labour and expense) (delay in respect of the receipt of the profit) be as small as possible.
Of these two interests, that which respects the extraction of profit may be termed the main interest: that which respects the avoidance of vexation and delay, the collateral interest.
21 April 1805
Evidence
Securities
Ch. Procedure Technical
''.2. Objects pursued
''.2. Objects pursued /aimed at/ under the constructs of those interests.
The dictates of interest being given, and the means of recognizing them in that character, not being wanting, the objects pursued under the impulse of that interest, power necessary to the pursuing them with effect being also present, will also be given. Such is the constitution of human nature
Not in the case of each /every/ individual taken separately: because in consequence of the variations produced by idiosyncrasy, every sort of interest, every sort of motive, every object of desire or aversion does not act upon all men nor upon any man at all times, with exactly equal force: but this constancy and consistency of action which would in vain be looked for on the part of the individual, may be looked for with confidence in the species or class. Titius and Sempronius may be governed for the moment by this interest, the pleasure or pain /by the motive, by the motive/, by the virtue or vice, of the moment: Titius more obedient to social interests and motives frequently led by that means into virtuous course, Sempronius under the governance of self-regarding or [...?] interests and motives and thence more frequently led astray by that means into vitious courses: but of Titius and Sempronius and their brethren taken together /collectively/ it may always be predicted /affirmed/ and reckoned /acted/ upon with assurance, that the objects pursued through life, will be the objects indicated by the dictates of general interest through the whole of life: and in a word that the objects pursued in conjunction through a course of ages will be the objects indicated by the dictates of the predominant interest to /by/ the action of which they are brought upon during that space of time.
21 April 1805
Evidence
Securities
Ch. Procedure Technical
''.2. Objects pursued
In the objects or ends pointed at by the interests abovementioned some sort of contrarity and competition may already have been observed: to encrease suits and not to encrease them, to encrease labour and not to encrease it: to extract the maximum of their advantage objects somewhat differently [...?] must therefore have been aimed at, means of different description and even opposite tendency as among the legitimate +, so among these illegitimate occasionally employed: each of the interests, each object /interest, each object/ must occasionally have been made to give way, and in some sort sacrificed, to the other. /another/.
1. One interest said - make as many suits as possible.
2. Another interest said - make the profit upon each suit as great as possible.
3. A third said - make the trouble to yourselves from all suits taken together as little /light/ as possible.
Here was a sort of contarity /To a certain degree these interests clashed:/: by the same means /arrangement/ by which one of them was promoted, another was counteracted. The more the profit upon each was augmented, the more the number of them was diminished: for the profit to the man of law being unavoidably attended with expence as well as vexation to a much greater amount to the individual would in many instances by utter inability in many more by dint of [...?] prevent them either from entering into or from continuing in the situation of a suitor - would in other words diminish the number of suits - would strike a number of hypothetical suits out of the list of actual ones - But the suits thus struck out of the list what
Ends.
Conflict.