30 Jan y 1805
Evidence
Securities
Ch. Engl. Proleg.
''. Bad Procedure Causes
4. The boundless made ever increasing immensity /[...?] texture/, and /[...?] texture /situation/ /arrangement/, and unascertainable [...?] and/ consequent incomprehensibility of that system /body/ of institutions the comprehension of which though impossible is artfully and plausibly as well as artfully stated as a necessary preliminary to any attempt to sit in judgment or its fitness /the fitness of it in any part/ in relation to its professed end.
5. The impossibility or the openly declared, and secretly [...?] /continually encreased/ impracticability in this part of all men with a few exceptions in respect of an acquisition with these expressions /arrangements/ of will, for the non-observance of which ignorance is no excuse, is never admitted as an excuse.
6. The nature of the medium through which above any such imperfect instruction /acquaintance with the system/ as is not absolutely[?] unattainable is to be obtained: the [...?] given of it, by a set /class/ of men, who seeing it /[...?] - its as/ /prompted by interest and enabled by power/at [...?] their interest and their power to keep it in as bad a state /short of /distant from/ perfection/ as possible are by the irresistible force of the same interest engaged to represent it as standing as near as possible to the point of absolute perfection and accordingly are never seen to mention of it but with a determination to exaggerate its excellence /good point/ to cancel its defects, and by rendering the one indistinguishable from the other, extinguish in the minds of their pupils and their dupes, the losses, and if possible the very wish to see it in any part, + less adverse than it is to the true ends of justice.
+less pregnant with abuse and misery
30 Jan y 1805
Evidence
Securities
Ch. Engl. Proleg.
'' Bad Procedure Causes
Jurisprudence bad [...?]
7. The blind and abject veneration so carefully directed to jurisprudential under the name of common law in contradistinction to statute law: to a species of law in /the formation of/ which particular analogy is the chief guide, in preference to a species of law in which utility is at least the only professed guide: to a species of law formed in other times - in preference of a species of law capable of being formed in present times: to a species of law made /formed/ in dark[?] times to a species of law formed in comparatively enlightened times: to a species of law in /the formation of/ which the representatives of the people had no share to the prejudice o a species of law in the formation of which the representatives of the people have a principal share - to a species of law mixed up with acknowledged /defiled in /throughout/ its whole texture by/ lies and nonsense if any where to be found, are at least not suffered /admitted/ to enter any where but through inadventures. to a species of law of which the times being no where, the prospect is effectively and universally /perpetually/ unascertainable! in preference to a species of law of which the times, will as all expressed /conceived/ is to be seen every where /day/ by every body to a species /in a word[?]/ of law in which beaten by /unavoidable blows are employed/ instead of words, and of which the acknowledged quintessence of iniquity, the characters if in ex post facto law, are the characteristic offence, in preference to a species of /that paternal/ law, of which the avoidance of every thing that savours of that abomination is the final and constant care.
+ which punishes or Taken without warning, that for this /[...?]/ view of the punishment Sempronius may form a law to himself at his peril,
19 April 1805
Evidence
Securities
Ch. Proced. Techn. Roman[?]
Ch. or ''. . Technical System - Roman Law.
In the Roman nation as in every other, the natural system must have been /preceded/ in use before the technical: for the technical system supposes writing, and the art so common as to have been converted into a trade.
Accordingly, for a long time down to a considerably advanced period of Roman history, the presence of the parties, of the plff at least was indispensable. At one time justice was the object, and then the Judge would + do nothing unless the parties were present: in process of time the profit of trade became the object: and then he would not hear them so much as suffer them to come into his presence /in his presence/.
4 July 1804
Procedure & Evidence
Note
Introd
Ch. Proced. Technical
So far as it rests upon the parties, expence, like vexation, besides being in itself an evil, is an /so/ evil in the character of a cause of other evils: viz: the evils opposite to the several ends of procedure before mentioned. In this character /its prospect[?]/ /[...?]/ the mischief flowing from it will be found much more serious /heavier/ than that /any/ which belongs to it considered in itself, and independently of all consequences. But in this ulterior character it will find its place under a separate head.
The epithet technical is not unknown to the existing system of procedure. Among English lawyers Applied to the word reason, it is in familiar use. On all these occasions /every such occasion/, technical as put /employed/ by euphemism, instead of sham or nonsensical. Connected with this epithet, whatever be the reason, that is the assemblage of words given under the name of reason you will find it on which by a sad [...?] either stark nonsense, or best, /or (what comes to the same thing a mass of words /a proposition/ altogether inclusive and irrelevant: suits /a proposition/ as nothing but power, and prejudice begot /begotten/ by power could have secured from universal contempt, such as never would have passed for a reason without the support given /granted/ by common law, such as would not in any /on the ground /in the field/ of any other branch of science, a/ if the common occasions of life pass for a reason upon any man /man woman/, or child, not so much as upon the man of law himself who uses it by whom it is honoured with that name.
19 May 1805
Evidence
Introd
Ch technical
'.1
By the technical system of Procedure, I understand that System which has been produced by the pursuit of the sinister ends, under the impulse of sinister interests as above distinguished /characterized/: viz: those of the persons /order of men/ employed in framing it. Direct and ultimate object /result ultimately /directly/ intentional/, official and professional emolument, power and reputation: mediate object, result immediately but still directly intentional, expence and delay expense to the suitor: collateral objects, objects but obliquely intentional, but nevertheless /still/ intentional, vexation to the suitor; vexation in all its forms: to the demandants side less of satisfaction less of other rights, less of the security afforded by punishment where due: to the defendants side /of the defendant/, under punishment where undue, imposition of other obligations of all sorts where undue.
This is /In this we may see/ the system by /in/ which all those factitious evils which have been brought to view have received their existence /been produced /[...?] mankind//. Here and there a few pure and bright spots excepted, notice of which will be taken with delight under the head of summary procedure the existing systems, throughout the civilized world, are /may be set down as/ so many modifications of it.
10 June 1805
Evidence
Introd
Procedure Technical
''.1
Ch. of the Technical System of Procedure
''.1.
We have seen the leading features of the natural system of procedure. In them, by the rule of contraries we have virtually seen the leading features of the technical /its antagonist/.
In the two together a Manichoean might /would/ see a confirmation of his system /principles/. In the Natural system he would see the genuine work /workmanship/ of the good principle: in the technical the work of the evil principle the power of darkness. the spirit of discourse.
Under the model of the Natural system, the domestic, the Judge, as it were by instinct would set his face against expence /unnecessary and preponderant expence/, delay, and needless vexation in every shape. Except in the particular cases of exception that have been mentioned, a considerable portion of those evils comes unless called for: and as it would never enter into his head to call for them /it/, they /it/ would not come at all.
Under the technical system, profit, official and professional profit, with another: a benefit /blessing/ of which expense, and delay with their [...?] vexations to the suitor are the source /sources/, and which flow in upon him in proportion to the fertility of that source. The grand and central object of his endeavours will therefore be by every possible and effectual contrivance to render the current of these evils as strong and copious as possible.
10 June 1805
Evidence
Introd
Ch. Procedure Technical
''.1.
Under the natural system, the Judge not having any interest in keeping back or stifling the truth of the case, will bring it to light as quickly and place it in as strong a light as possible. He will therefore be seen to employ as of course, those arrangements that have already been pointed out or the only ones that are efficacious and competent to the /that/ purpose. He will call the parties before him in the first instance, at the very outset of the cause, and between the one and the other, he will get out of them all that either of them know, or believe, or wish, in relation to it: and then, in a great majority of the causes which are liable and want to come before a Judge, the first hearing, the first operation (after the one in which the summons /ex parte application of the plaintiff/ to the defendant was grounded) will also be the last /will be the only one/.
This speedy[?], this almost instantaneous, termination of the cause is the very event which the author of the technical system deprecates as the sum and substance of all calamity: it nips all profit in the bud. He will do what depends upon him to avert it. At all events he will do his utmost to keep the truth from coming to light as long as possible: and if it never does come /comes/ to light, what cares he /difference does it make to him/?
In many cases he has something to gain by the mishap, in none has he any thing to lose by it.
13 June 1805
Evidence
Introd
Ch. Procedure Technical
''.2. Ends of the Technical
The final cause of the natural system of procedure is the fulfilment of the several ends of justice.
The first cause of the technical system of procedure is the promoting in every possible shape the personal advantage of the Judge and his associates.
To delineate the author of the plan of /of the course actually pursued by/ the system /For determining a person to a certain degree of correctness/ nothing more is necessary than to /we need therefore but to/ investigation and note down the results under the [...?] of which the interest of a man in the situation of the man of law will /would/ necessarily had him to wish to see come to pass: in other words, among the evils opposite to the ends of justice to note down such as are be under productive of profit to himself /personal advantage/, and the substance of the several arrangements which in the character of men's promise to be conducive to the accomplishment of these sinister ends.
1 Desirable result or end or objects of the man of law collected under one general denomination and thence placed in the most general point of view - extracting in every shape the maximum /aggregate/ of profit extractable from the whole number of suits of all sorts springing up of themselves or producible in the community in question within the /a/ given space of time.
2 The number of suits being given, and the quantum of profit extractable from each operation of a /and [...?]/ given length and from each instrument of a given length being given, the quantum of profit extractable from the aggregate of suits will be as the number of operations and instruments in each suit. Second object increasing the number of operations performed and of instruments made and uttered on the occasion /in the course/ of the aggregate of suits.
13 June 1805
Evidence
Introd
Ch. Procedure Technical
''.2. (Ends of the Technical)
3. Number of suits, quantum of profit from each operation and instrument, given as before; also number of operations and instruments together, the aggregate of profit will be as the length of each operation or instruments.
Third object - increasing the length of each such operation and of each such instrument
4. As often as any additional hand can be introduced into the business, to whom any operation can be /is/ given to perform which without him would not have been performed, or instrument made which without him would not have been made, an addition is made to the aggregate of operations and instruments.
Fourth object - increasing the number of different hands /hands/ having different employments, employed in the business of procedure.
Thus far, to avoid complication and embarrassment, a supposition has all along, though tacitly made, viz: that of the whole number of suits, each /from/ which, number and length of operations given, profit will be extractable, and to the same amount. But as in every community there will always be a considerable number of individuals, from whom, they /[...?]/ enjoying throughout the whole course of their lives little more or no more than a bare subsistence, no profit at all or none that would be worth earning at the price of the necessary labour, could by possibility be extracted, hence, from the number of suits which it is the interest of the man of law to see or even to take place, must be excepted and struck out the whole number and proportion of these non-profit-yielding, these unprofitable suits.
The interest of his fortune /His pecuniary interest/ calls upon him to secure up to a maximum the number of profit-yielding suits: the interest of his case calls upon him to carve down to a minimum the number of non-profit-yielding suits.
Fifth object - diminishing the number of non-profit-yielding suits.
13 June 1805
Evidence
Introd
Ch. Procedure Technical
''.2. Ends (of the Technical)
Whatever be the number of non-profit-yielding suits that might have taken /or have made to take/ place had they been profit-yielding suits, they operate therefore as exceptions to the several rules implied in the enumeration governing[?] the four preceding objects.
Unfortunately, ( viz: for mankind in general) in the sort of relation expressed by the correlative terms general rule, exception, there is something particular observable in the case to which they are here applied. In general, whatever be the number of individual instances /articles/ that have been taken out of /subtracted from/ the contents of the general rule by the exception or exceptions, the remainder is a number greater than that of the number contained in such exception or aggregate of exceptions. But in the present instance if from the number of articles comprized in the exception, the remainder will be not simply less but by many times less than the number so subtracted.
Fortunately on the other hand, (viz: for the man of law) whatever process, through the medium of the 2 d 3 d or 4 th of the above objects, conduces[?] to the fulfilment of the 1 st, conduces[?] also to that of the 5 th. In this as in every other branch of trade, (but in this more distinctly and necessarily than in any other) whatever contributes to raise the price of the goods, contributes in the same proportion to diminish the number of the customers. By the steady pursuit of that one object through the medium of these three, by that simple and as it were instinctive course, by the mere force of instinct, and without any expence in the shape of meditation /reflection/ /thought/ and contrivance, he attains the fifth object into the bargain: can in the form of a corollary, [...?] [...?] guiddance, as mathematicians say, in addition to [...?] in a more substantial shape.
Thus by the ingenuity and industry of the man of law /Judge/, every thing is adjusted and with the utmost surity the convenience of him[?] and his: and the only inconvenience is, that a certain portion of the species, in every country a large majority, are put out of the [...?] and under the oppression of the law.