8 April 1805
Evidence
Securities
Ch. Procedure Technical
''. Allegation is evidence
continued
But, in the case in question, misdecision to the office in question is the certain result: it is prepared beforehand: deception is not necessary to it: right intellection[?] /true conception/ affords no remedy to it: it is the work not of the Judge, whose disavowal[?] if applicable /permitted/ to it /to act/ might have applied the remedy, but of the law: that is of /most commonly of jurisprudential law: that is, of/ the mischief or wickedness or weakness of his predecessors grown by sufferance into law. Here no deception is produced, for judgment /the judicial faculty of the judge/ is not permitted to take cognizance here[?] to exercise itself: not even is mis-decision produced: for the /here/ mischief springs up of its own accord, nor requires the aid of decision, fresh and individual decision, to give it birth to it. A mischief equal to what would have been produced by deception and misdecision united, is actually produced without either. It is not that injustice is more or less probable, but that, as against the injury in question, justice is impossible.
Of A certain set of proceedings an inquiry for example into the truth of a certain alleged fact the cost to the df t would be ,40: if upon allegation made by the plff of the existence of this fact, the inquiry takes place of course /by a preestablished arrangement of procedure/ the consequence to the defendant so long as the inquiry lasts, and for ever if no part of the money is ever replaced to him, is just the same as if at the instance of the plff he were condemned unheard in a fine to that amount. But in /under/ the existing technical system of procedure it is in the power of every man whatsoever to subject any other man whatsoever to certain suffering in this way. How? merely by delivering as, according to a preestablished form any one of the sorts of general allegations by which so many sorts of suits are regularly commenced. But under the existing system to deliver in any one of these forms of allegation is just as [...?] to a man who in his own instance[?] knows it not to have the smallest foundation in truth, as if the fact alleged had passed under his own eyes. Here stems under the technical system under which an open [...?] /every Court of justice/ is kept for the sale of [...?] oppressive licences in [...?] form the opulent man pays down his money for the licence, and the ruin of the indigent man his destined victim is the certain consequence. Under the natural system in a Court of [...?] or before a Justice of Peace, the intended victim standing opposite to him and looking him in the face, the very first question put to him would leave him [...?] without [...?...?] to say for himself, and his first care would be to [...?] out of that Court on [...?] [...?] triumphs.
8 April 1805
Evidence
Securities
Ch. Procedure Technical
''. Allegation is Evidence
This rule audi alterem partem[?] [...?] is commonly regarded /spoken/ as one /among/ the deepest laid parts of the foundations of justice. The violation of it the refusal to hear on either side an arrangement by which the advantage of a hearing is refused to either side, is commonly regarded as one of the most flagrant, if not exclusively the most flagrant, of all violations of justice /the modifications /forms/ of injustice/. Examined closely /more narrowly/ it will however be found to be no more than a sort of minor and subordinate /narrower/ injustice, included in that mode /feature/ of procedure by which the technical system is distinguished from the natural. After the one side /plaintiff/ has been heard, the other /defendant/ should be heard likewise - why? because should the plaintiff's information /evidence furnished by the plaintiff/ be false, there is nothing /nobody/ to correct it: should it be incompleat, there is nobody to compleat it: and in either case /event/, deception on the part of the Judge, and from /through/ deception misdecision may be the certain consequence. True: in all this there is nothing but what may be, and is indeed but too apt to be. Still however in this case misdecision is /would be/ far from certain, and were the error /practice/ universal would be far from constant. It may be, on the plaintiff's side there would be nothing but truth: it is not natural, because it is not needful, at least when the amount of /value in/ demand is limited that there should be any thing but truth, or that any material part of the truth should be withholden, where the plaintiff happens to be in the right; a state of things which, through causes foreign to the present purpose, may be expected to be verified in perhaps nineteen instances out of twenty instances. Again: though the information furnished by the plaintiff should be at [...?] incompleat and false deception on the part of the Judge is by no means the certain or the constant consequence. It may be that of what is false, he derives the falsity: and from what is furnished, though incompleat, his good understanding, in the way of inference, supplies the rest. But,
19 April 1805
Evidence
Securities
Ch. Procedure Technical
''. Allegation is Evidence
Thus then stands the matter with regard to the rule Audi alterem partem. To a certain degree /In certain respects /purposes/ /On certain occasions/, it is the interest of the man of law, that it be obscured; and to /on/ these it has accordingly been observed accordingly. To /In/ others it is the interest of the man of law that it should not be observed: and on that it has been violated /is violated/ compleatly abrogated So far as it is his interest that it be observed, it is so on a double account: were it violated /not observed/ to all purposes, the people might not be quite so blind /be dissatisfied/ to the defects /abuses/ of the system as they are. The people might be more or less dissatisfied: and moreover what is a great deal worse /what would be a much more serious mischief/ /[...?] [...?] [...?]/ more than half of the profit of /extractable from/ every suit would be lost.
Observed? did I say? - But in what sense is it ever /that it is/ observed not /never/ in a true sense, only /never but/ in a fictitious one. Under the name of party who is it that is heard? Not the party himself on either side: not the party himself, but his deputy, or rather his deputy's deputy: not the party himself, but a deputy's deputy whom he is forced /compelled/ to employ, on pain of not being heard in any sense. And for whose sake then he is heard even in this fictitious sense? for the sake of the deputy and the deputy's deputy and their connections /confederates, and not his:/ /[...?]/: for if it were for his own sake, it would be in his own person, that he would be heard.
3 March 1804
Evidence
Securities
Ch. Procedure Technical
''. Non-Confrontation
[...?] This here or under Makeshift. Many Media[?]
''.1. Confrontation [...?] justice: abolition of it encourages mendacity by the multiplication of Agents through whom the information is transmitted
In the established system - in every system in which the truth of the allegation is not supported by the immediate testimony - the [...?] and scrutinized testimony of the party in whose name and on whose behalf it is advanced /made/ - mendacity receives the most adequate encouragement in its enterprises against justice.
The party say in the first instance the plaintiff tells his story in the first place to the Attorney. The bias which every man has in favour of his own cause is sufficient without conscious mendacity to produce more or less misrepresentation in the instance of privileges the majority of those who under /in/ the existing system come into a Court of law. Quantities are either encreased or diminished - qualities are either too strongly or too faintly coloured - often facts and circumstances that make against a man's wishes, especially if they reflect the /any/ slightest [...?] of disrepute upon his character - are more or less disguised or suppressed.
The Attorney who has no such /at least no equal/ bias upon his mind, shares not in any degree or at least in equal degree the false conception of his Client. But by the sinister interest constantly attached to his situation he so far from being urged to dispel the falshood and bring the truth to view, he is urgent to thicken it. He has every thing to hope and to gain without any thing to fear by keeping the mask on the falshood, every thing to lose by the removal of it. By extracting the truth from the Client, he loses the benefit at any rate of that one cause: if, in his endeavours /course of/ the operation he happens to give offence to a man the state of whose mind is such as disposes him more or less strongly to take offence, not only the cause is /may be/ lost, but the Client: not only that one cause, but other causes the indefinite train /source/ of other causes that might have flowed from this same source.
3 March 1804
Evidence
Securities
Ch. Procedure Technical
Falshood formed /encouraged/ by
Law Agents for want of
Confrontation
Nothing can equal /exceed/ the security with which falshood in this case obtains the assistance /benefit/ of an accomplice. Not only no punishment but scarce any the slightest danger of any the slightest risk[?] of disrepute /loss of character/ can attach upon any such existence of interested /professional/ prudence. The claim will miscarry /cause will be lost/: the Attorney forsees it will: - but he has his answer ready. It was your own doing: did not you say /tell me/ so and so - does it not appear upon the face of the Case which I took down from your mouth, and which you heard and /or/ read after I had penned it? Was it for me to contradict or so much as doubt you in regard to a fact that lay within your own knowledge? was it for me to charge you with either advancing falshood or with suppressing or disguising truth? Was it for me to suppose you /charge you/ capable of deceiving your own adviser, and where the deceipt could not but operate to your own prejudice?
The professional interest of the Attorney prompts /urges/ him to bring forward every communication that can tend to bring in /promote the constitution of/ the suit, to keep back every communication that can tend to prevent it. in the one case to bring forward the false just as much as if they were true. in the other case to keep back the true, just as much as if they were false. Is there common sense in the expectation - that the general course /train/ of conduct should run on in opposition to the general stream /force/ /current/ of interest?
In this profession, as in another, that instances may not be found, of here and there an individual, who having laid it down to himself as an inflexible rule, to be guided without deviation by the interest of his client without suffering himself to be biased by opposite personal interest arising out of his profession - having once for all laid this down to himself /this course of conduct/ in the character of an inviolable rule /law/ should throughout preserve resolution enough to persevere in it, is certainly not impossible, and may without danger of inherent[?] /practical/ error be conceded. But in this profession of all others - not to speak of other professions will any one seriously contend, that a stream of probity thus [...?] can reasonably be looked for on the part of the birth[?] of men[?]?
3 March 1804
Evidence
Securities
Ch. Procedure Technical
Falshood formed by
Law Agents for want of
confrontation
Sooner or later - either in the shape of a Case for an Opinion, or in the shape of a Brief, containing Instructions for the Trial the statement goes /passes/ from the sort of lawyers called an Attorney to another sort of Lawyer called a Counsel: and in /to/ the general of falshood /mendacity/ the assistance of this sort of lawyer is secured, by an interest which if it be not of exactly the same shape as the preceding, is at any rate fully adequate to the production of the effect. At this stage, happily /most commodiously/ for this branch of the profession, every idea of responsibility in respect of the truth of the statement, is compleatly vanished. The truth of the statement is in this quarter to be taken for granted: it would be officious, impertinent, troublesome to both parties, unusual, repulsive, incidious, repulsive, and thence even disreputable to doubt of it. It would require a degree of time and attention, which in the habitual course of practice no Counsel in considerable business has it in his power, had he it ever so much in his inclination, to bestow. In the estimation and good will of his Clients of both classes, Attorney and party, the Counsel rises in proportion to the degree of confidence with which he adopts and insists in the truth these statements in which on one side or the other, not to speak of both, there is almost always more or less of falsity, and of such falsity as any man in his place might see through /discover/, if it were his wish to do: a falsity, of which in a general point of view he may therefore be pronounced conscious. In the estimation of those on whom his emoluments and prospects depend he will rise /raise himself then/ in proportion to the zeal with which he exerts himself to gain evidence for this falshood /these falshoods/: and by such zeal there is no one in whose estimation he will lower himself.
3 March 1804
Evidence
Securities
Ch. Procedure Technical
Falshood encouraged by
Law Agents for want of
confrontation
After stating the power[?] of the law arising clearly out of the facts, and so no [...?] taken.
From the hands of the advising Counsel, after returning through those of the Attorney, the statement /business/ goes into the hands o a third sort of lawyer, called a Special Pleader: and from him is bespoken, what is called a Declaration - a claim adapted to the facts so stated, and either explicitly or implicitly continuing the allegations requisite to the support of such claim - allegations by which, though in a general form, the substance of these facts is reasserted /again asserted/. At this stage at any rate the responsibility would be compleatly gone, if that which was compleatly gone already could be more than gone. With the bulk of the statement or any part of it the Special Pleader has no more /concern/ to do, than the ironmonger who sells a hatchet has with the sobriety of the smelter who helped to extract the iron from the ore.
3 March 1804
Evidence
Securities
Ch. Procedure Technical
Falshood encouraged by
Law Agents for want
of confrontation
Thus it is, that in the established and regular course of procedure there are four sorts of hands in whom /through which/ the circulation of falshood is in a manner secured, and that falshood in the instance of three out of the four the lawyers [...?], and in the instance of the fourth the suitor, frequently altogether dispunishable: in the three instances secure /not only sure/ of not being punished in any shape, but secure of being rewarded in a very substantial shape, and therefore secure of being practised.
In the case of the suitor, the security against ultimate punishment does not apply to all cases: and where it does not apply, either the falshood must in the instance of this individual have been unaccompanied with mendacity, or the mendacity though real must have had of erroneous judgement for its cause, which case however is by no means an infrequent one.
But a case there is in which mendacity acts with its eyes open: because the punishment though in the general picture held out by the law is presented as comprending[?], is seen not to be so in reality. This is where a claim known by the plaintiff to be false, is pursued in confidence of the known or presumed inability of the adverse party, whether by want of legal evidence, or want of money, to defend himself against it.
13 Apr. 1805
Evidence
Securities
Ch. Procedure Techn. Eng. Law.
''. Oppression licenced
'' Licence given /sold/ to oppression by English Procedure
After the defendant has been compelled in law language to appear in English not to appear (for it /he/ would not be suffered but to employ an Attorney, the first step is the Plff's Attorney delivers in (not to the Judge who knows any thing about the matter but to an officer who does no more than receive and keep it) an allegation in writing an instrument called a Declaration. If the defendant on his part (that is /meaning/ his Attorney) denies the matter of fact contained in the allegation, such denial is called pleading the general issue: if, as a ground for the [...?] of the demand contained in the declaration, he alledges declared facts on his part - in other words exhibits counter-allegation or allegations that is called pleading specially or special pleading.
From the exigency /nature/ of the case or by professional /managerial/ management a conceivable case is that it shall fall to the lot of the plaintiff instead of controverting the defendants fails alledged as above, shall oppose to those other facts: and that this process shall be repeated on both sides any number of times. To the possible number of these reciprocal allegations there is no determinate limit. Taken in the aggregate the art of comprizing them comprises /drawing them up constitutes/ a particular branch of lawyers practice, is denominated Special Pleading, and furnishes occupation /employment/ to a particular class of lawyers called Special Pleaders.
13 Apr. 1805
Evidence
Securities
Ch. Procedure Tech. Engl. Law
'. Oppression licenced
Whether the Declaration (the result /produce/ of the sham appearance substituted to the real one) be in respect of the facts /matter of fact/ alledged by it be true or false, the sequel is equally secured /sure/ viz. the obligation on the part of the defendant to go on with the cause, or take upon /submitt to/ him the burthen due or undue which it is the object of the demand to impose upon him. Be the demand therefore ever so compleatly unfounded either in law or in fact, and on the part of the plaintiff himself ever so fully understood to be so, if on the part of the defendant is either unable or unwilling to oppose it - /there be a want[?] either of the ability of the inclination necessary to go on with the suit - (to carry it on to the period at which the Judge for the first time takes real cognizance /permitts a syllable to be said to him on the subject/ of it the effect of the demand is alike /equally/ secured. But a certain portion /part/ of the people /to persons in a certain condition in life/ as in a condition which deprives them altogether /compleatly/ of the ability /possibility/ of carrying on a cause to this period: is compleatly wanting and in this condition are /is/ the vast majority of the people.
In this condition there are the vast majority of the people placed by the mere substitution of the technical system to the natural - of the technical system in its least oppressive form, and without the addition made to the yoke, as will be seen presently, by the instance /head/ of special pleading. A sure mode /method/ /[...?]/ of oppression, instituted by authority, and at the price /at so easy a price as that/ of a lie, and that exempted not only from punishment but from shame, + the faculty of exercising[?] the opposition put into the hands of every man who is at the same time rich enough and unscrupulous enough to practice it.
+ for the declaration is the joint and regular act of the Attorney and the Special Pleader, nor is it are looked at or so much s heard of unless by accident by the party in whose discourse it purports to be