13 June 1805
Evidence
Introd
Ch. Procedure Technical
''.2. Ends (of the Technical)
Seek Ye, said Jesus christ /saith Jesus/, seek ye the kingdom of heaven and his /its/ righteousness, and all these things (no matter to the present purpose what things, +) shall be added unto you: a precept which if delivered in modern times and in the language of modern times might have run thus. Honesty is the best policy: or thus: the rules of privity are also rules of prudence.
The converse of this precept might have served in the shape of an instruction to the man of law. For kingdom of heaven put /read/ mammon or any other opposite kingdom, for righteousness, unrighteousness or more specifically extortion. Seek ye what is your direct, your primary object the kingdom of mammon (or in the rougher language of the century before the last the kingdom of hell and its unrighteousness (the unrighteousness that leads to it) and your secondary, your collateral object, ease, shall be added unto you.
+ Substitute
13 June 1805
Evidence
Introd
Ch. Procedure Technical
''.3.
Thus much having been said in regard to a certain rank of ends: we proceed to ends of a higher order, in the astrological scale, such ends as with relation to those others, operate /stand/ in the character of means.
Under the head of natural procedure, we have seen that course of inquiry /those principles /dictates/ of common law/ by which the three grand objects of judicial enquiry are compressed[?] and compressed[?] as one, bringing the truth and the whole truth to light, bringing it to light at the earliest possible period, and in the purest state: the termination /goal/ end of the cause /suit/ either reached at one bound, or at the worst the whole course /future/ of it marked out and delineated /brought to view/, as in mass by reciprocal allegations, examinations, admissions, [...?] and explanations: all, under the /with the benefit of the/ same security in respect of truth /against mendacity and temerity/ s that which is wont to be applied to men in the character of witnesses: all without any need or use, unless in here and there a particular instance, of the expensive assistance /burthensome, and in a general view necessarily treacherous assistance/ of a set of labourers acting together under the impulse of an interest opposite to that of their employer.
In This scheme of things traced out by the hand of Nature by the light of common sense was /the man of law beheld/ an inseparable obstacle to the designs of the man of law /his plans/: it was necessary at all events to get rid of it, and replace /replacing/ it by a system as opposite as possible.
For this purpose, three fundamental points were to be accomplished /gained/ in the first place at the expence of suitors.
1. To shut the door of the House of Justice in their face.
2. To have it open at the same time to such persons as should present themselves in the character of their [...?] assistants and substitutes: thus forcing them into the hands of plunderers /a set of licenced depredators/, with whose sinister interest lives of the Judge, the author of this violence, was tricked by the ties of a sort of partnership, not the less close but the closer, for being dormant.
3. To substitute or superadd /preface/ to the viva voce explanations of the natural system a mass of useless - as if worse than useless writing, and that of course as long as any pretense could be found for making it.
13 June 1805
Evidence
Introd
Ch. Procedure Technical
''.3.
4. For the purpose of the discourses thus to be carried on by and between the parties through the endeavour of such their assistants to exempt them, one or both of them the force of these obligations /employment/ of punishment and terror, from those his which were at the same time to continue to be employed for the purpose of securing against mendacity and temerity the evidence of extraneous witnesses.
5. In the case of all such assertions on the part of either party, (in particular of the defendant, the party most generally interested in the production of delay) as of time, might in reality or in appearance have afforded a just and reasonable ground for ulterior instruments or operations, to give them, coincidentally without opportunity of disproval or contradiction, the immediate effect of [...?] on the part of one or other party or both the necessity of such ulterior instruments or operations.
By the former /forth/ arrangement, mendacity, in so far as the man of law was in the way of reaping his profit from it, was trained: by this fifth arrangement it was crowned: whatever profit it might aim at, was then secured to it. By the former false [...?] were permitted; by the latter being [...?] for true, they were encouraged and [...?].
6. Not to suffer so much the proxies of the parties to come to any explanations in his presence with relation to the facts in which the ultimate [...?] for the fall principally and ultimately in question on the cause, [...?] far as [...?] mass of operations and instruments had been interchanged between them of course a mass as large as there could be found in so sufficient pretence for making.
By this refusal a diverse number of [...?] were answered at once
1. He saved these his dominant partners from the obligation of presenting, and himself from that of receiving any of those explanations which if they could not have been kept had might have put a premature period to the cause.
2. By forcing them to perform their operations and before other eyes and present their instruments to their hands, he promoted the [...?] of the list of objects abovementioned, encreasing the number of hands through which the parties were to be made to save the gantlet for his benefit, 3 d So many offers as could thus be piled up, are upon another, take Offer upon Pelion[?], all out of the eye of the principal, so many sources and scenes of occasional misconduct, real or pretended, on the part of parties' Agents and officers, each [...?] every other, so many occasions for incidental applications to be made to him for redress, applications producing more instruments, more operations, with their inseparable fires[?].
In regard to each of these several contrivances a word or two of explanation or observation may be of use.
On the present occasion I give no other than the leading features of the technical system: those which contrast at first view with the corresponding features of the natural. In relation to those, what ulterior features there may be occasion to bring to view will be but so many fillings up of the outline traced by those more essential ones: or to change the metaphor, os many edifices erected in those broad foundations, so many dreams drawn from those copious sources.
[...?] June 1805
Evidence
Introd
Ch. Procedure Technical
''.3 [...?...?...?]
''.3. Encreasing expence encreases profitable, as well as diminished unprofitable suits
Nor was the hearing of the Court of unprofitable suitors the only service yielded in an indirect way by the augmentation of expence.
While it diminishes just litigation, it encreases unjust /Though on both sides just litigation is /was/ diminished, unjust is /was/ encreased/: viz on the part of that one of the suitors /two adversaries/, demandant or defendant, who is able and intent and willing to pay the price set upon judicial service, while his antagonist is unwilling or unable /shut out by inability or reluctance/. A shape[?] was thus opened, and that a most public one, for the sake of /the facility of/ Oppression: and that in either of two forms, according to the texture and exigency of the customers case. In the state of things whatever wrong /injury/ be indicated he commits it in the first instance, trusting for success and [...?] and success to his adversary's list coming up to the price /[...?] from his price/ put by the man of law on the ticket he sells in the lottery /litigation/ of procedure /justice/ /litigation/. In the other case, he borrows /hires/ and employs the hands of justice, the very hands of the Judge and his associates and subordinates in the production of the mischief. In the former case indeed, the profit to the man of law is not quite so assured /enduced[?]/ as in the other; since of the party marked out for injury /[...?]/ /destruction/ be altogether without the hope /bereft of the prospect/ of being able to pay the price put upon the chance of redress, he will institute no suit: in which case the oppressor gains /obtains/ his ends gratis compleatly gains his ends, and which the man of law as compleatly loses his. But another case, and perhaps a no less common one, is - when the party injured, blinded by his own resentment and deceived by the advisor whose interest it is to deceive him /puts in the character of [...?]/, commences the /a/ suit , without power to carry it to an end. Meantime the wrongdoer, assured before hand of his being provided with a sufficient [...?] of the pecuniary means of defence, harrasses him without worry /defends /fights/ the ground week by week/ plying him all the time with those obstacles and stumbling-blocks which the man of law [...?] in /constitute the stock in trade of the shape of justice/, and from the sale of which his profit is derived: But while either side thus plays off its artillery, the other is obliged to do the same: so that in this case the wrongdoer is pays[?], does not reap /[...?]/ the whole of the profit; but admitts /shares it with/ the man of law, his instrument and accomplice, to a share.
14 June 1805
Evidence
Introd
Ch. Procedure Technical
In both cases the mischief that is done is alone /equally/ the handy-work of the man of law /collateral but not less certain result /produce//: the fruit of the tax imposed by him, and for his own benefit, on that sort of [...?] which goes by the name /to which he gives the name/ of justice: but in one case that is done by mere terror of the man of law, which in the other case can not be done without force actually applied: in the one case the man of law sees the whole profit reaped /got in/ by the wrongdoer, and gets some of it for himself: in the other case the wrongdoer is forced to let the mother of the iniquity into a share of the profits, and the business goes on in partnership. If it were possible to come in for a share in both cases /all cases/, the man of law of course would not have a single door open through which the wrongdoer might then creep in and get to himself the whole of the profit without paying for it and put the whole profit into his hands without allowing any part to leave[?] to when he is indebted for the whole. But the two cases are so mixed that they can not be separated: so that /and thus/ as to this part of the cause, the man of law is obliged on each individual occasion to take his chance /leave the matter to chance/.
The option is - to act immediately in the character of plaintiff, or eventually in that of defendant.
Upon this plan there is at any rate no suit in the first instance, and either there is no suit at all, or at any rate none till after the main wrong is done: but the wrong done, the wrongdoer rests, as it were upon his oars, and if thereupon a suit does take place, the part which he acts in it is the defendant's part /part of the defendant in the cause/.
If he prevents the species of injustice (over and above the vexation expense and delay in the case of litigation) the species of injustice produced by the plan of injury is that which is called /comes under the denomination of/ failure of justice and which, according to the law[?] of conduct maintained by the part injured has for its immediate cause, either Non-Demand, [...?], or misdecision to the prejudice of the plaintiff's side: misdecision /ultimate misdecision,/ being under the technical system the result that takes place, as of course, wherever the party who is in the right is liable to pay the price set upon a decision, when given on his side in favour of his side.
14 June 1805
Evidence
Introd
Ch. Procedure Technical
Upon the other plan the wrongdoer does no part of the mischief above or by his own hands, he does the whole of it by the hand of the man of law. The individual /The destined victim/ marked out for ruin is bruised and oppressed /The oppression heaped upon the destined victim is produced/, party by the burthen imposed /thrown/ upon him by the ultimate decision pronounced to his prejudice, in observance of the [...?] observed put /proferred/ in by his oppressor in the character of plaintiff. the decision purchased of the Judge and his associates by the demandants heavier purse - party by the intervening[?] and continually encreasing burthen gradually heaped upon him by the mass of expence, vexation and delay heaped up /that has been accumulating/ during the continuance of the cause.
Of these two distinguishable efficient cause of oppression, the latter is the one that naturally speaking will of the two be the more frequently brought into use. For unless the suit be of the individual class[?], and punishment the mischief aimed /intended/ to be produced by it, it will fall in no other shape than that of pecuniary loss. but in this case, the loss consisting in general in the obligation of giving up something /some article or mass of property/ that a the defendant has already in his possession, the value of it will to the extent of that value supply him with the means and possibility /faculty/ of defending himself: while on the other hand, it may also happen /a case not to be overlooked, is that [...?]/, that before the hour of ultimate decision is arrived /come/, the means of defence, though at the outset not inconsiderable, may have been exhausted.
Upon the whole, there are two distinguishable burthens, which upon them second place, on the oppressor, that is every man who is rich enough may be sure of heaping upon the head of his intended victim by the hands and the means so carefully provided for him by the man of law: + the oppressor, that is every man who has money and wickedness enough to [...?] /pay/ up to the price set /put/ by the man of law /in this[?] aggressive warfare/ upon his assistance: the oppressed /the destined victim/, that is every man who is unable to pay the price put by this same official hand upon the penalty of self-defence.
+ the burthen of expence vexation heaped up during the continuance of the cause, and the burthen produced by the misdecisions pronounced to the prejudice of the defendant's side, at the conclusion of it.
14 June 1805
Evidence
Introd
Ch. Procedure Technical.
Of these, the burthen of expence and vexation, the evil opposite to the collateral incidental ends of justice, is a quantity which in comparison of the other is little /but in an inferior degree/ subject to variation: the burthen from ultimate misdecision, the evil opposite to the ultimate collateral end of justice, the sort of oppression flowing /appertaining/ extensively from /to/ misdecision to the prejudice of the defendant's side, is subject to variation, upon a scale of indefinite extent /indefinite an extent/. Upon an indefinitely extensive scale.
The latter sort of burthen /evil/ being a burthen which requires situations, opportunities, interests and incidents in some degree particular /more or less peculiar/ for the imposition of it, will comparatively speaking be but little in use. It is the other that being his best fitted for general use, cuts /makes/ by far the greatest figure in practice.
A man having or purchasing for the purpose a small demand, just or unjust, against another, the state of whose affairs admitts not of immediate payment without ruin or great inconvenience, proceeds against him in the expensive and vexatious track marked out for the purpose by the system of regular procedure. for this purpose a demand of a shilling serves as well as a demand of ,1000: and it is evident that in the case of the shilling, whether it be due or not due, makes in this respect no material difference.
That for the mere purpose of a gratification /enmity[?]/ to the passion /[...?]/ of enmity and without any to the self regarding passion, the desire of pursuing /the matter of [...?]/ a course of the sort in question should be engaged in, is probably in England at least comparatively speaking rather an uncommon case. But that this very course should be engaged in, for the sake of the profit, the professional profit for example derivable from it, in so far from uncommon as to have become a regular and established branch of practice, at least so far as evidence may be given to the statements of the cases that so frequently transfer through the medium of the press.
A dealer of this sort, if by accident a good bill is put into his hands, with instructions to recover the amount of it, complains of the goodness of it as an injury. Being a good bill, the amount of it is paid on presentation: and thus litigation being presented, the lawyer professional lawyer not to speak of his official partners disappointed of the expected fees.
[...?] June 1805
Evidence
Introd
Ch. Procedure Technical
''.4.2. on the part of
indigence.
''.4. - 2. On the part of indigence.
Mala fide litigation, though so naturally the instrument of oppressive opulence, is not uncommonly, perhaps still more frequently the separate resource of dishonest indigence: for the technical system, with its factitious expence, is alike favourable to improbity in every situation. the difference in this case is, that the assistance /advantage/ to improbity is derived not directly from the factitious expence, but from the factitious delays connected with it, and flowing, as above explained, from the same corrupt source: to oppressive opulence the expence is an instrument, and the only instrument: to dishonest indigence so far from being an instrument it is of course an obstacle; unless in the case where it happens to find equal or greater indigence on the other side.
In this case, whether in the hope of final escape through /by/ misdecision, to be produced either by fallacious evidence /by want of evidence/ or by /from/ some of these sources in which the technical system is so abundant whether in the hopes of final escape, or for the mere advantage of respite, whether for the mere purpose of staving off the evil hour, or in the hope of anticipating /escaping from/ it by intervening /on the wings of/ prosperity, the malâ fide defendant lays hold the instruments which the technical system puts into his /offers to his hand/, and employs them for the purpose of gaining time /staving off the demand /day of doom//. By a forced loan, the force of which is borrowed of the man of law, the debtor borrows of his injured creditor against the end [...?] of the creditor and in spite of all his effort, that further time: he borrows it and what interest? Perhaps no more than a fraction per cent: perhaps some hundreds or even thousands per cent: the amount of interest being nearly fixed, and the amount of principal varying, ad infinitum, the rate of interest varies of course upon /throughout the whole range of/ that enormous scale.
15 June 1805
Evidence
Introd
Ch. Procedure Technical
''.4.2. on the part of indigence
At that variable rate interest, but, whether small or great in its relative /a/ quantity, always enormous in its /a/ absolute quantity, into whose pocket is it received /gathered/? Not into that of the injured creditor, but into that of the accomplice and instrument of the iniquity, the man of law. Behold The [...?] hypocrite, with hands and eyes lifted up /raised up/ to heaven, declaim /declaiming/ against rapacity in the person of the trader /creditor/, stamped /branded/ for the purpose with the name of usurer, while under the sanction of a foolish and antiquated law, rewards the salvation [...?] on the borrower by a fine imposed on the saviour to the amount of exactly three times the money lent /lent by him/ /so employed by him/. Generous /Virtuous/ indignation: but, where is the latent, the real grievance? that the price of [...?] has gone into the wrong pocket: while /mean time/ /at the same time/ the very suit which gives occasion /affords opportunity/ to the [...?] of all this zeal for justice, affords its profit to the right one to the official /sacred/ pocket to which the technical system had appropriated it.
Certain it is, that whether the profit made by unlicenced oppressors or supposed oppressors be or be not an object of envy: licenced and licencing ones, certain it is that such is the destination of the price thus paid for delay, is altogether notorious /out of dispute/.
What profit that ever fill into that sacred pocket, was ever matter /cause/ of real indignation, what miseries that ever were produced by profit so received were ever matter /cause/ of real sympathy, to the man of law?
15 June 1805
Evidence
Introd
Ch. Procedure Technical
''.4. on the part of indigence
The mischief that can not be expressed can not be guarded against /averted/, at least by any exertion of legislative industry /wisdom/. Let the name employed for the designation /expression/ of the suits or proceedings planned or carried on on one side or other in the express view, and for the express purpose of oppression, be called /distinguished by the denomination/ malâ fide suits. or proceedings: and on the part of any person planning or carrying on any such suits or proceedings with any such views, let the act of carrying it on be called malâ fide litigation.
Malâ fide litigation will accordingly be distinguishable into mala fide demand and malâ fide defence: under which last denomination must be included malâ fide aggression out of court and previous to any suit, but in prosecution of an eventual design of malâ fide defence.
Mala fides again, when on the side of the defendant, may be the resource either of overbearing opulence, or of desperate or overweening[?] indigence. On the plaintiffs side, it can never be resource of indigence, except in expectation of finding still greater indigence on the other /defendants/ side: in which case on the side of the plaintiff, though there is no absolute, there exists, in opinion at least, relative opulence.
In general in a malâ fide suit, as thus described, the mala fides will be only on /confined to/ one side: that of the demandant and that of the defendant or eventual defendant as it may happen. The /an intentional[?]/ wrongdoer marks out an intended victim for his prey.
But the case of mala fides on both sides, though not the most natural and frequent case, requires to be mentioned as a possible one, the [...?] as it is by no means an unexampled one: two vultures, each thinking to encounter /strike/ a pigeon, encounter each other in the stead of it /its stead/.