15 June 1805

Evidence

Introd

Ch. Procedure Technical

''. Ulterior means

The technical system in this its essential points being introduced /established/, the next object of consideration (in explanation at least posterior though in truth and operation perhaps simultaneous /[...?]/) the next object in consideration at least is by what means /ulterior arrangements/ /subordinate principles and arrangements/ the advantage gained by it was to be made the most of.

Direct and ultimate object, making fees: intermediate object, making business, viz: such business as by affording an occasion or pretence, shall be conducive to the making of fees.

Let us have enumerate[?] some of the most extensive, fruitful, and in other respects most remarkable, resources /expedients/ which have been under the technical system having been productive of that advantage may naturally be concluded /inferred/ to have either been opened or kept open to that end /in contemplation of it/.

Encreasing the number of the operations performed and of the instruments exhibited and of the other operations of all sorts performed on the occasion of each suit, encreasing the length of those several instruments and operations, encreasing the number of hands employed about him, all these results are so intimately connected with each other by astrological ties /in the bands of astrology/, each of being with relation to the two others, at the same time cause and effect, whatever arrangement is conducive to any one of them, is at the same time conducive to the others /is conducive to them all/.

17 June 1805

Evidence

Introd

Ch. Procedure Technical

'. Ulterior Means

1. First resource for making business /First source of made business/. Superfluous Enquiries

Establishing with or without natural necessity or pretence and with or without application from either party, the factitious necessity, enquiry upon enquiry, in relation to the same facts, enquiry in a worse mode, before or after enquiry in a better mode. Exemplifications of this sort of ingenuity will be found in the body of this work +

2. Enquiry by one Judge, decision by another. Where by the personal examination and view of the parties and other witnesses the verdict[?] of the cause, and when such of them as may happen to be [...?] have had least time or no time at all to conceal or [...?] measures for concealing or disguising the truth, one Judge or set of Judges has obtained a better insight into the cause than can be obtained by any other, suffer not the decision to rest in his hands, but transfer it to those of some other Judge or set of Judges who know nothing of the cause but form the dead letter to which the minutes of the evidence have been consigned. In this head likewise, details and exemplifications on the body of this work +++. In the character of a father of a family, wishing to come at the truth and to do justice still [...?] or [...?] would be [...?] weak?

3. Irrelevant decisions. Decisions (with the previous arguments and other operations) on points foreign to the merits. That the business may be to be done over again: and the fees[?] repeated, manufacture pretences for declaring the proceedings null and void, on the ground of irregularity; whether /and these/ the rules to which they run counter have or have not been previously cognoscible. Of this more in a chapter appropriate to this head. ++

4. Countless Removals from Court to Court. Authorise or necessitate with or without application from the parties or from either party the removal of the cause from Court to Court, co-ordinate subordinate or superordinate, and with or without ultimate decision pronounced in the Court first applied. - [...?] and keep up the entanglement of jurisdiction as much as possible. Of this subject a particular view will be given in the Rationale of Procedure

 Here[?] in a chapter by itself?

Securities. English Law

++ Ch. Irrelevant decisions

Securities

18 June 1805

Evidence

Introd

Ch. Procedure Technical

''.7. Writing abused

Among the essential points of the technical system one that we have seen is the abuse of the art of writing. On this head a distinction requires to be made: for in the instance /regard to/ of this master art, on this as on so many other grounds, thin and delicate /slight/ are the particulars by which the abuse is divided from the use.

The purposes /occasions/ the application of it to which comes under the head of use will be spoken of at large in the body of this work. + These are the registration of the few operations and instruments for which the natural system produces in the several cases a genuine demand: and where the expence is warranted by the importance of the cause or by the anxiety of the party who is willing to defray it, the registration of the evidence. meaning by evidence such information, whether it came from the parties, or from extraneous witnesses, such information for the truth /correctness/ of which such securities as are requisite, and as such are afforded by the natural system of procedure, are /have been/ applied.

The abuse consists in the fabricating and registration of such /these/ /whatever/ useless instruments and operations and instruments as the technical system may have happened to superadd or substitute to the few that would be called for and exhibited under the natural system: together with such information true or false but for the verity of which no security is employed /applied/, such information true or false, as both parties either /purely/ from the obligation inferred[?] upon them by the regulation of the system, partly from /by/ the sinister policy of that one of the parties who is conscious of being in the wrong, have been led to furnish /exhibit/.

Under the natural system whatever[?] writing is employed about the evidence succeeds /follows/ /comes after/ oral delivery of the testimony. and in neither more nor less than that testimony itself consigned to their [...?] under the technical system it either precedes /comes between or is substituted/ and is super[?] - [...?] [...?] added to the oral testimony, it also is substituted to it.

Securities. Rules

18 June 1805

Evidence

Introd

Ch. Procedure Technical

''.7. Writing abuse

In /To/ /Without/ the abuse of writing we have /may be seen/ the means of bringing about three /essential/ /the suitor could never have been burthened with that prodigious load of expence vexation and delay of which the exhibition of/ instruments of mutual altercation succeeding one another at intervals more or less distinct, in the particular /immediate/ efficient cause. Where an allegation /a mass of allegations/ is committed to writing, and each party is under an obligation or at liberty to answer the mass of allegations exhibited by the other, an interval of time between the exhibition of one such instrument, and the exhibition of another such instrument can not be refused. It could not, even were hired assistants out of the question: much more where the necessity of employing assistants of that description, especially if of different classes /ranks/, one believed another, has been contrived to be created. Under the system, of which vivâ voce examination as well of parties in the presence of each other as of witnesses (extraneous witnesses wherever present) forms an essential /a distinctive/ feature, all such altercations would naturally, and, saving accidental ignorance or oversights, necessarily, come out at once; come out at the first meeting.

Before this abuse of writing, whatever allegations, relevant or irrelevant, true or false, came out in the course of the cause, must have been exhibited, by the parties, or, in the accidental case of inability to attend, by their gratuitous proxies: for the assistance /interference/ /agency/ of professional and hired agents /assistants/, not even in the character of assistants, much less in the character of proxies, could there have been any real need felt, or plausible appearance of necessity created. In the presence of the party, even where he is unfortunate enough to be obliged to purchase the treacherous service of a [...?] assistant, the art of making business can never be carried to any extent, approaching to that to which it is carried of course, when that check to professional treachery is removed.

18 June 1805

Evidence

Introd

Ch. Procedure Technical

''.8 Mendacity encouraged

limited to parties

''.8. Limitations to the encouragement given to mendacity - not extended to witnesses - why.

The encouragement to be given to mendacity was not indiscriminate. In whatever cause profit was to be made by it, to these uses the encouragement was to be extended: where no profit was to be made by it, the encouragement did not /was not to/ follow it.

It was accordingly to be given to parties and t both parties: because it might happen to either party, demandant or defendant to be in the wrong /and that knowingly, in/ in respect of his acting in that character and to know himself to be so. and whichsoever of them was /were/ conscious of being in the wrong, to him it could be but natural to apply the licence given to him for mendacity /his mendacity-licence/ to the purpose for which it was given to him /put into his hands/, viz: the manufacturing of those operations /fabricating of such false assertions/ to which when exhibited in the form the effect was annexed[?] of giving rise /birth/ to those operations instruments and delay, to which so many definite portion of expence at the charge of the suitor, and to the benefit and profit of the man of law were /had been/ attached.

To be given - to parties, yes; who in virtue of the mendacious assertions, express or implied, in which the delays given to them, ... to that one of them who was in the wrong) were grounded, were witnesses in /each for himself /on his own behalf/, witnesses/ put through without the name. To parties in the character of witnesses, self-regarding witnesses, yes: but not to what are commonly understood by the name of witnesses, extraneous witnesses in case of mendacity and the other securities against mendacity. To these punishment was accordingly applied, and why? 1 Because from mendacity on their part no such service as in the case of parties, as above, nor in short any other service accrued to the man of law: 2. Because on the other hand in case /[...?]/ of mendacity on their part, in case of prosecution for the mendacity, where prosecution supposes punishment by this suit as by any other the mass of profit was encreased: which suit, even and above the pecuniary profit would afford to the man of law the opportunity of encreasing his stock of [...?] popularity, by the zeal /reputable quality/ which the prosecution would afford him an opportunity for displaying - the law of justice.

18 June 1805

Evidence

Introd

Ch. Procedure Technical

''8. Mendacity encouragement

limited to parties

To mendacity, (and its /not to speak here of its next of kin/ temerity) two distinguishable checks are opposed, wherever it is seriously wished to be prevented: punishment and cross-examination: terror of future contingent punishment under the name of punishment in a large lot, and present shame, which in itself is in effect a present punishment. + Of what concerns punishment, as well as of what concerns judicial examination mention will be had /consideration will be had/ in detail, in their proper places: suffice it here to call to view in general terms the necessity, the indispensable necessity of one or both of those securities.

What, then is to be expected of a system which [...?] as it were cautiously to apply either of these securities, or any other unless it be in the shape of costs the prospect of an inadequate drawback to the profit of the mendacity at an indefinitely remote as well as future contingent period, puts it in the power of either party, upon the mere condition of pronouncing or enquiry or existing which his professional agent pronounces or signs a certain form of words, puts it in the power of either party to drag his adversary through a totally [...?] mass of vexation, expence and delay for a series of months or even years.

I open a book of French Procedure. it consists of no fewer than most closely printed 40 /10/ pages. It is stock[?] full of formularies. From beginning to end neither in any formulary, nor in any other part of the book in I find any mention of punishment as for mendacity or honesty on the part of either party, or on the part of any professional agent of either party, or so much as the ceremony of an oath, much less any such security as that of cross-examination by the adverse party in the presence of the Judge. decrees upon decrees are fixed, allegations and received, necessity of counter allegations respond[?] upon the adverse party, examination in the dark and secret way there is without opportunity of cross examination, examinations upon paper in a never ending string granted on one side required and rendered necessity on the other, all these sources of vexation and expence and delay set running in full streams, upon no better ground than a written assertion or even [...?] without assertion, on the part of a lawyer /humbug agent/ to whom every lie is a source of profit, and all this without any the slightest security for the truth of any thing that he says.

Securities - the Punishments

Securities

18 June 1805

Evidence

Introd

Ch Procedure Technical

'.8. Mendacity encouragement

limited to parties

3 continued

I now turn to the Memoirs /Memorials/ of the Advocates of the practices under the system of procedure, the stories told in the name of the parties by the [...?] the Marchons[?], the Lingeats[?] of the French Bar, I turn over the miscellaneous and abridged histories of causes under the name of Causes Celebres,, and then I behold the consequence. Falshoods massed upon Falshoods, and not only falshoods uttered in the hope of detection, but falshoods of which the proof /not only the legal detection/ is certain but the utter falsity notorious from the first; years together spent by one party or by both parties in the accumulation of these falshoods, 6, 8, 10, 12 years of the life of one or both the parties embittered and filled with distress in all its forms, less of property, reputation liberty, every thing frequently at the end of this [...?] of slow torture less of the /that/ life of which it had destroyed the value.

By a sort of happy treachery the events even of individual still more readily of professional iniquity, will in the warmth of argument be betrayed by casual imprudence. I have again to these ingenious and entertaining productions of professional /written/ eloquence, and again and again I find confirmed by their confession what any man may /may sufficiently be/ be without any such confession that under the natural system of procedure, under an obligation on the part of the parties to face each other at the outset of the cause in the presence of the Judge, the abominations there displayed, in a word all the abominations of which the system /practice/ of technical procedure is made up, would have been utterly /radically/ impossible. (a)

Note

(a) See amongst others the case of the Marquis des Brosses in [...?] de Logicase[?] de Manchère[?] 8[?] Vol. 1 Londres (Paris) 1780. For above the years the wife of this unfortunate man, and his brother, sometimes ++ in conjunction sometimes separately, keep him in a state of torment. It is on the occasion of this scene of wickedness that he observes "En presence du Marquis des Brosses sur les livres[?] (viz: in the presence of the Event in question), une defence plus [...?], les [...?] même connais, les [...?] [...?] epârgni[?] la mortefication de [...?] Arrêt. Il aurait tort cependant de se plaindre. Tout est bien dans l'ordre de la Justice

+ what a man may be abundantly assured of without any such confidence, viz:

++ (p.130) viz. from before the [...?] not how long 17 July 1738 but after 2 July 1749 (p.163) it appears not how long contrive to keep him sometimes in prison, sometimes out of prison, always in a state of [...?]

19 June 1805

Evidence

Note

Introd

Ch. Procedure Technical

''3. Mendacity encouragement

limited to parties

3 (a) continued

Extracts from [...?] de Manléon continued

And in the occasion of another cause (that of Simonote[?] against Le Roir) he concludes (1. 124.) "c'est vie [...?], que je suis combien dans ces sortes de causes, les parties sont se plaindre de ce pas les plaider illusionnes - Dû le [...?] Dumont[?] [...?], sans etude et sans art, apporter lui même avoir pieds ses douleurs melées de confiance et de crainte, s'il fairoit relentir ces [...?] ce cri si vrai de la nature qui penetre qui remue tens les crain; a ses larmes [...?] pentétre aux votres vous [...?] toute la justice toute la verité de sa cause. Et si le plus sage des rois reconnut a la [...?] qu'eut une femme qu'on ne lui enlevat sons fils, qu'elle en etoit la [...?], et la crainte qu'il vous feroit voir aujourd'hui qu'on ne lui donner les filles qui le reclamant vous verrier tous qu'il n'est point la veritable [...?]

Nor that on this or any other occasion he confesses what could scarcely be a secret either to him or to any other practicer in a French Court not to speak of other Courts) of justice, that the remedy against deception on the part of the Judge consists not merely in the eloquence of the parties in the character of Advocates in their own course, but much more in their inevitable veracity in the character of witnesses, when confronted with each other, and examined as to all the natural points in the cause, at the outset of it, face to face, in the presence of the Judge: as was the actual practice all the while in the Consular Courts of which there were many at that time in France

In the same Volume p.300 a list is given of the causes of vexation and delay to which a poor widow had been subjected for a space of two years, all of them factitious, all of them having mendacity, licenced, [...?] and unrepressible mendacity for their source: "[...?] conflits de jurisdiction deplacies, des resistances ouvertes aux ordres de la Cour, des abus d'[...?] pour arreter les assignations (notices to appear) des conventions tenuaires[?] ([...?]) des arrêts hardement surpris (by mendacious statements without oath examination or fear of punishment as in special pleading) sur requete au milieu d'une instance liée et contradictoire; (as if by Injunction Bill in Equity after the parties were at [...?] at Common Law) - ce n'est qu'une partie des maux[?] qu'elle avait a souffrir." This however was but a flea-bite: in that instance, the course of vexation had not at that time lasted above two years.

15 June 1805

Evidence

Introd

Ch. Procedure Technical

''.9. Exceptions Pauper Lists

''.9 Further limitations - not extended to the higher criminal causes

The man of law is moreover a man. If in the first mentioned character his interests are in hostility with the interest of the community, in the other they are included in it.

If In his professional character his interest is that offences by /on the occasion of/ which whether in the way of prosecution or defence there is any thing /is/ to be got should be as abundant /abound as much/ as possible. In his human character it is his interest that they should be as rare as possible, and therefore, that in order that they may be rendered so, they should be punished. In regard to offences from which profit may by due management be extracted there is a sort of conflict between the two antagonizing interests: and the chance which the professional interest has of prosecuting will in the instance of each species of offence and each individual article of that species be in a sort of compound ratio, compound of the short[?] ratio of the quantum of money /professional profit/ /[...?]/ extractable from the prosecution and defence of the offence, and of the inverse ratio of the mischievousness of it. This conflict of interest has in every country ended in a sort of compromise by the terms of which the guiding[?] features of the technical system have relaxed and in a greater or less degree afforded admission or rather left liberty of action /jurisdiction open/ to the natural one /system/.

If there be any class of offence, from whence at the same time that the dangers to the man is particularly great, the chance of profit to the lawyer is particularly small, on occasion of the mode of procedure in relation to these offences, he will naturally be disposed to be less rigid in his adherence to the technical system, strenuous[?] in the pursuit of the grand object of serving up the degree of delay to its maximum; inasmuch[?] that were it clear that from the class of offence no profit at all were ever to be extracted, the idea of making artificial delay would /might/ in these cases come to be abandoned by him altogether: and in a word the more anxious he were to give safety to the man and the less hopeful of being able to give profit to the lawyer, the more ready /better satisfied/ he would be for the sake of [...?] his seriously to afford or thence admission to these principles of the natural system by which all factitious delays as well as expences are of course excluded.

19 June 1805

Evidence

Introd

Ch. Procedure Technical

''.9. Exceptions Pauper Lists

This plan of policy has been more conspicuously exemplified in the English edition of the technical system than in the French. To the former therefore let us look in preference for the illustration of it.

Among the offences over which for the preservation of society it is most necessary to keep a strict hand, and which at the same time, in spite of every thing that can be done /precaution that can be taken against them/ by legislative vigilance will ever be by far the most common, are the offences /crimes/ of injurious[?] indigence. A great majority, say 19 out of 20 at least 9 out of 10 of that heterogenous mass of first and second rate offences, which from /by/ the punishment /hodge-podge/ /heterogenous mass of/ that has been [...?] to them have been lumped together under the denomination of felonies, have their origin in that situation in life, couple with that motive. This consideration it is that appears to have determined the spirit /tone[?]/ of the mode of procedure appropriated to the case of felony.

A man in whom the desperate [...?] of attempting at the hazard of life to seize the property of another would not /never/ have been found had he possessed as the fruit of his own industry the means of sustenance, would not in general be able to put in an a plea to a Declaration in the Common Pleas or an answer to a Bill in Equity. Accordingly, the every [...?] though hitherto never written maxim that neither Plaintiff nor Defendent, much less both together, shall ever be admitted, till it is impossible they should any longer be kept out, into the presence of a Judge, does not extend to felonies.