13 April 1805
Evidence
Securities
Ch. Proced. Techn. Engl. Law
''. Oppression licenced
A shape[?] for the sale of what may be called oppression-licences, licences conferring upon each purchaser the faculty of oppressing to the length of utter ruin, any one out of many millions of individuals at his choice, is kept open by the Judge under the name of a Court of Justice. Terms of purchase /Conditions of sale/, so much money; together with a lie to a certain effect: a lie from which all punishment under the name of punishment, and as far as possible all shame, not only of punishment but of shame, has effectually and to all appearance studiously, been abstracted. A system of regular oppression organized, the morals of the people corrupted, by a stream perpetually flowing into, or from /out of/ the highest grounds in the state to be carried into effect by a principle of corruption corrupting the morals of the people by the infusion of a poison applying itself to the most vital parts /of the [...?] frame/ - all for the benefit of its author - the maker and winder[?] - the man of law. Of the profit, one part flows in through various /a variety/ channels into the pocket of the Judge, by whom /whose authority/ after having been organized by him /his predecessors/ it is kept up, and on each occasion carried into practice. The remainder, under his instruction distributes itself, in a variety of proportions, among his friends and dependants - among a set of persons /[...?]/, some professional and some official - all more or less intimately connected with him by some tie or ties of interest or sympathy. But to gather in this profit, partly by his own hands partly by the hands of his /these/ connections and dependents, it is /was/ necessary that he should refuse ever to set eyes on a suitor, ever so much as to suffer a suitor to come into his presence, untill he has run the gaunteletts throughout through the whole lane[?] of these licenced depredators /plunderers. Such is his profit; such the price fixed upon it, and such the price he is content /not ashamed/ to pay for it.
13 Apr. 1805
Evidence
Securities
Ch. Procedure Techn. Eng. Law
''. Oppression licenced
Such are the effects /mischiefs/ produced even without the help of Special Pleading. The effects of that additionment[?] /additional yoke/ are somewhat different. The sure and constant and inseparable result is the addition thus made (an addition altogether needless and useless) to the mass of profitable delay, vexation and expence with its attendant profit such as its effect with relation to the collateral ends of justice. An accidental but too frequent effect is the misdecision, pretences the grounds /causes/ of which accompany the process in every part of its course. To whatever points are ever presented for decision in the course of the process thus denominated /Special Pleading/, one description belongs in common: they are all of them points foreign to the merits. On no[?] part of this class The decision when it comes to be pronounced will be either in favour of the merits i.e. to the claim of that one of the parties that /who/ has the merits on his side, or adverse: if favourable, the mischief produced by the process is confined to that which is /of the/ composed of the fictitious and unnecessary delay vexation and expence: if adverse /in the opposite case/, to the mischief produced by the contravention of those collateral ends of justice is super-added that which consists in the contravention of the diverse end of justice /that which is produced by misdecision/
13 April 1805
Evidence
Securities
Ch. Proced. Techn. Engl. Law
Oppression licences
Of the picture thus given of the judicial system /existing system of judicature/ what is the practical result? Insurrection? no nor so much as resistance. Resistance? no nor so much as the slightest relaxation from the habit of submission and obedience, active as well as passive, on all occasions and in all its forms. In what degree if in any /In this department as well as in every other/, the welfare of the people /governed/ even the original object of the rulers /governors/, is a matter /question/ of pure and even useless theory: the true question of real importance, is - in what degree it has been the result.
30 Jan y 1804
Evidence
Securities
Ch. Engl. Prolegomena
'.1
Ch. English Law. Introductory Observations
In the Roman system /mode/ of regular procedure in relation to the extraction and receipt of testimony, we have seen /seeing/ a uniform system of incongruity and imperfection: a system deplorably not good for any case with inconsiderable exemptions, and those in themselves beneficial ones, but uniformly applied to all cases. We have seen It is radically and totally unfit for its purpose inconducive to its professed objects /ends/: but to that general unfitness[?] /mischief/ /imperfection/ it has not added /does not add/ the particular mischiefs of complication on the part of the system, nor the reproach of inconsistency on the part of those who act upon it /the men in power/.
The reader will thus have before him a system which in respect of its leading factions /fundamental points/ may be seen to stand at the pinnacle of perfection: a system the excellence of which if not very clearly /distinctly/ understood is at least universally felt and recognized: recognized, and proclaimed with general /universal/ triumph and exultation: boasted of, and by the very men whose persuasion /correction/ of the exclusive excellence of it is most decidedly /frequently/ declared and acted upon in practice, in particular - occasioning[?] habitually departed /discarded/ from with the most unfeeling and [...?] indifference; habitually discarded, and exchanged for a system /mode/ which wherever it is if not exactly the same as the Roman mode above delineated is still worse.
30 Jan y 1805
Evidence
Securities
Ch. Engl. Proleg.
The rules by /in/ which the [...?] [...?] ultra[?] of perfection in this line stands expressed, have above been brought to view. the rules claiming the performer[?] in favour of vivâ voce examination expressive of the plan to be observed in relation to it. ( ) These rules, in so far as concerns /as to/ the fundamental points of the plan as to every thing but a few /here and there/ incidental points of imperfection easily corrected, are /constitute/ /are no more than a/ the exact delineation /picture/ /correct copy/ of that which for shortness may be termed the English System.
Custom, produced and supported by a mixture of professional interest and party[?] prejudice, would find an equally short and more particular mode of expressing the characteristic features of this system by looking /seeking/ for a denomination for it in the Trial by Jury, and regarding /considering/ it as an inseparable accompaniment of that mode of judicature. But the plain truth of the case is, (examples in abundance will manifest it so to be) is that its connection with the species of men's[?] internal so comprised is purely accidental, and that a much more advantageous /perfect/ opinion of it may be seen in those affectedly disposed but most useful of all non-penal tribunal, stated Courts of Inquests but more commonly Courts of Conscience.
Note
( ) viz: Rules 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17
30 Jan y 1805
Evidence
Ch. Engl. Proleg.
''.1
In giving to the system the denomination of the English System, I had no other view than that of applying to that purpose a notorious and simple matter of fact. National attachment had no share in the bringing to view a matter of fact which will /may/ be seen to afford so little cause for national exultation /pride/ /self esteem/.
The plain truth is that in this part of the system of established procedure, nothing more is to be seen than a fragment /a fragment preserved rather by accident rather than degree[?] /fortune rather than by wisdom//, a pretious[?] fragment of the system of natural procedure - of domestic procedure of that mode of procedure which common sense dictated from the first still continues and never will cease to dictate /present/ as the plan proper to be pursued, and which accordingly is pursued in the bosom of every private family in that sphere of interest which Nature has set up /established/ in the district /demesne/ of every family, by the head of the family, as often as occasion calls for the exercise of the unpleasant but sometimes necessary function of sitting in judgment on the conduct of any of its members /subordinates/. If the characteristic features of it are still perceived in the Trial by Jury /procedure/ in that system in the construction of which, together with the abuses with which it is covered, the cult[?] of lawyer craft have had so large a share, it may be sure in much better prosecution in the procedure of these tribunals, within the /whose/ pursuits of which the professional man of law has been unable or has disdained to penetrate /intrude himself/.
30 Jan y 1805
Evidence
Securities
Ch. Engl. Proleg
''.1
If the use made in England of the English System of procedure in respect to evidence had had English wisdom for its origin, that same wisdom would have bestowed on it an universally extending application without any other exceptions than what were suggested by so many specific and appropriate reasons: in a word this superior wisdom, the existence of which is thus assured[?] their [...?] if in the way of supposition would have operated with the same[?] regularity and comprehension /regular and comprehensive efficacy/ as the really existing inferior wisdom from which the Roman System took its birth. But the multiplied, the diversified, and in every instance groundless deviations /aberrations/ made from this ever conspicuous and ever acknowledged model /pattern/ of perfection, demonstrate but too plainly that if to any thing that can be seen be called wisdom /in any sense the national wisdom, it is not in any sense /degree// it is not to professional wisdom that it owes its birth, and that whatever reflection and industry has been bestowed upon it by men of law, has been occupied /employed/, almost without exception not in the preservation and improving /preserving and improving/ it, but in defaming it in injuring it, and rendering it in every instance less conducive /adapted/ to its professed and only proper end.
30 Jan y 1805
Evidence
Securities
Ch. Engl. Proleg.
''.1
In marking out the course /in some of its proudest lines in England/ /in its various /[...?]/ situations/ taken under the English System /of English origin/ in relation to the operations in question - viz: the receipt and extraction of testimony, I shall begin with that mode of procedure which either coincides exactly or at least comes nearest to a coincidence with the patterns exhibited by the above rules. I shall then exhibit in their order the several ulterior variations, placing first those in which the aberration is least important, and bringing successively to view the instances in which it is wider and wider, the mode pursued more and more vitious /defective abundant in imperfection/, and the means employed worse and worse adapted more and more incongruous and unconducive with reference to the professed end - the avoidance of mis-decision - the fulfilment of the predictions delivered in each case by the substantive branch of the law: so in other words the due administration of genuine and substantial justice.
Under an arrangement thus described, of the two grand /main/ divisions of existing /the system of established/ procedure, the Summary and the regular the former can not fail of taking the precedence /occupying the first place/: that which having had justice for its end /the real end of its institution/, has been /will/ suffered to accommodate itself. and actually has accommodated and does accommodate itself with almost compleat success, to that its only legitimate end seats itself of course /takes[?] its station/ in the first place: after that comes the mode /system of arrangements/ which having had authorized[?] plunder for its object, owed the shares /privileged/ in the spoil for its authors, the due administration of justice for its collateral and accidental, though happily in no small /to a certain inconsiderable/ degree its eventual effect, has been but too happily adapted to its not professed /named/ but not the less steadily pursued sinister end.
30 Jan y 1805
Evidence
Securities
Ch. Engl. Proleg.
''.1.
The constitutionalist /honest but ill-deserving [...?]/ /The professional lawyer, with his dupes[?]/, whose views are bounded by the circle in which Whig prejudices and affections are inclosed - will scarcely without a mixt emotion of surprize and horror behold the object of their idolatry - the second Trial by Jury thus thrown into the back ground. In The emotion thus excited /raised/ /called[?] along[?] will put[?] a stimulus/ will be /operates as/ a stimulus by which their attention will be pointed to the subject, and rendered above to any misrepresentation /misrepresentation/ to the prejudice of the favourite system - should any thing of that sort be discoverable /to be found/.
30 Jan y 1805
Evidence
Securities
Ch. Engl. Proleg.
''.2 Bad Procedure Causes
That the honest reader, and more especially the reader whose social affections are yet warm, who /whose uncorrupt /susceptible/ mind/ is not yet past the swarm[?] of public virtue whose judgment /[...?]/ has not yet been led captive /enchained/ by the force of professional interest and personal ambition - may not be altogether without a clue of /psychological/ the psychological hand to facilitate his travels /guide his footsteps/ through the labyrinth of error /misgovernment/ about to open to his view, a few leading points /[...?]/ /facts/ shall in the character of causes be just mentioned without being at all insisted upon in this place. These are
1. The professional /relative/ interests and situations of the class of persons in whose operations /to whose agency/ the system of procedure as well as the greater part of the substantive system of law has its rise - a set of workmen whose interest it is to make the work as bad as the ignorance and patience[?] of the employers will suffer it to be.
2. In respect of the condition of the main body of the laws /government/, the want /utter absence/ of that responsibility which attaches upon particular functionaries in respect of particular branches, such as those of finance, political economy in general, and the administration of military [...?] and other channels of national defence.
3. The total absence of encouragement, coupled with the abundance of positive discouragement under which the most important of arts and sciences and arts labours, in comparison of all others not excepting the most trifling and indifferent /the most trifling not excepted/