19 June 1805
Evidence
Introd
Ch. Procedure technical
''.9. Exceptions Pauper List
At the very earliest stage of the cause, at the very same stage in which the like effect would later place under the natural, and does actually take place under the waiting[?] summary mode /course/ of procedure, the defendant, and his prosecutor, and such witnesses or other witnesses of any, as happen to be at hand /forthcoming/, are introduced together into the presence of a Judge. Each accordingly, at that preparatory meeting called the examination each has the liberty of putting questions to each, the Judge to both or either, for the maxim which leaves it to the desire[?] of the defendant whether he will give an answer, does /is/ not in that stage at least, understood to destroy altogether, howsoever it may impede the liberty of questioning /putting questions/.
Moreover, by one means or other, indeed or rather to give the short account of it, by so simple a means as the forbearing to extend the art of making business to a case in which there is nothing to be got by making it, quick work, quick by comparison at least is made of the case of felonies: so quick, that instances have not been wanting, in which the three inquiries, (two of them it will be seen somewhat worse than useless) + which take place of course in prosecutions for felony, have been all compressed into the compass of one day. True it is, that notwithstanding this accidental /casual/ dispatch, the mean duration of a prosecution for felony is in the greater part of England 3 months; in some parts in which the suffering of the individual and the prompt execution of the law is in the eye of the law of less moment, six month. (a) But in these three months, and these six months, after deduction of those for which in favourable circumstances a part of a day is sufficient, nothing at all is done. + Of that sort of business, which in case of [...?] which instead of life, a few pounds or a few shillings were at stake is so unnecessary to be made, none is made here, because here, as before observed nothing is to be got by making it +2 about.
Securities
(a) These numbers are mathematically correct: as will be found by whoever considers that in some parts of England the Circuit Court is held but once a twelvemonth in most parts six months. In London and Middlesex, the months are reduced to weeks
+ laying out of the setting out of the account that corruption of mind and body and mind, which is not worth thinking about.
+2 So that Upon the whole [...?] if the time in which nothing /no business/ is done but the work of corruption is rather of the longest the time in which any business is done is short in this branch of technical procedure; viz: not many times as long as that which the business of the same case would have occupied in the natural mode.
19 June 1805
Evidence
Introd
Ch. Procedure technical
''.9. Exception - Pauper Lists
When the class of offence is deducted, (in which homicide, and a few other species of delinquency, in to which rich and poor are alike exposed to fall, were unavoidably /however though/ included,) the remainder are alike open to both classes /conditions in life/.
It is for the accommodation /accordingly for this case/ of spending opulence /opulent delinquency/ that in addition to the so called civil remedy by action, the so-called criminal remedy by information, the silence[?] remedy as it is called in the language of silence even, is provided. In cases thus circumstanced /of this complexion/, were the prosecutor and defendant compelled or admitted /allowed/ to meet one another at the outset in the presence of the Judge, as in the pauper cases abovementioned, the art of business making, and every pretence for exercising it would be destroyed /put an end to/: accordingly the essential meeting the only sort of audience at which good justice can be done /justice can be properly administered/ /as it ought to be/ is no less carefully excluded in this criminal class, than in the civil class of cases. Writing, accordingly and Motions, work for Attornies, work for Advocates are here manufactured in sufficient quantity: and, in return for the profit upon all this business, facilities for perjury are given to gentlemen (for information causes are gentlemens' causes) facilities as great (it will be seen) as gentlemen can expect a gentleman give with any show of reason /can reasonably expect or decently give/.
13 June 1805
Evidence
Introd
Ch. Procedure Technical
'.6. Exclusion of parties
''. Excluding principals which none but hired proxies were admitted.
These two arrangements are in effect but counterparts of one and the same arrangement. Excluding principals without admitting proxies would not have executed the design but marred it: it would have put one end to all suits. Admitting the hireling while the principal vanished unexcluded is an arrangement that would have been little less incompetent to the purpose. Under the natural system, as hath been seen, it is the arrangement that not infrequently can namely be dispensed with.
This stroke, one of the boldest as well as most nefarious /flagitious[?]/ that ever was struck either by fraud or force, could not be struck at once. A rule /principle/ of natural justice the most obvious perhaps and most unfringable of any that were presented themselves to human reason, could not be battered in breach: it was necessary to undermine it.
Audi alteram partem is an adage, among the most frequent in use, as well as among the earliest in date. By another maxim somewhat more extended, the iniquity of the Judge who should presume to violate the former is denounced to the tribunal of mankind. Qui [...?], parte inaudita alterem, [...?] [...?] [...?] [...?] [...?] fuit. Audi alteram partem - the injustice, the single injustice comprized in the violation of that rule, was the utmost /most flagrant/ that in that early stage of human existence /improvement and human corruption/ had presented itself to the imagination of mankind. By the stroke, the masters stroke here in question /before us/, that injustice was doubled. To steer clear of the imputation, fiction, the supreme and everlasting God of /in/ the man of laws machinery was invoked, and not invoked in vain. In the eye of the law Parties and proxies are all one: hearing the one is hearing the other, - No, No: hearing the one is not hearing the other. Hearing the treacherous hireling, your dormant partner, your creature who plays into your hands is not hearing the /his/ principal, the oppressed and deluded party /suitor/ whom you and he have marked out for pillage. If the falshood of the subterfuge were not fully known to you, you would not be so ready with it as you are /have been so ready to devise and later it/. +
Say this, and in next thing for your to say, the dove /pigeon/ and the hawk are one bird in law
+ It is because the presence of the party would defeat the conspiracy, that you venture on so monstrous an injustice as that of shutting the door in his face
13 June 1805
Evidence
Introd
Ch. Procedure technical
''.4. Exclusion of parties
In the earliest stages of the system and for a long time afterwards, the doors of the Temple of justice could not be shut directly in the suitor's face. If he forebear to enter them, it was necessary, the forbearance should be his own act. Every difficulty, every disgust that could be thrown in his way was to be heaped together. The same /Parallel/ acts are suggested every where by the same interests and the same [...?] /parallel /kindred/ interests and parallel situations./ were to be forced into the hands of hireling lawyers, as buyers and sellers of Government Annuities +, are /have been/ forced into the hands of Brokers. ++
For more [...?] of /requisite /expedient/ for producing/ distress /disturbance/ /molestation/ presented themselves: rendering the business to be transcribed[?], rendering the whole business as intricate and difficult to understand as possible: 2. rendering the trouble /plague and mountain/ of attendance as expensive and in other respects as depressing and intolerable as possible. That which was at one time alike understood by all men /subject the most interesting to all men/, which may again be alike understood by all men, while of the rulers of mankind are not lost to all core of reason, and to all sense of duty, may we[?] long be understood alike by all men, which sooner or later, will, must, shall, alike be understood by all men, was to be made the matter of a peculiar and recondite science, which, men could so much as /should be able so much as to/ fancy themselves to understand, but those instruments /[...?] partners/ of the Judge who in conspiracy with their principal in whose favour, that the monopoly of the science might be drawn as light /close/ as possible, it was to made as difficult and at the same time /and thence and for that purpose/ as unworthy, to be understood, as possible.
+ (not to speak of so many other classes of buyers and sellers)
++ G.2.c.
19 June 1805
Evidence
Introd
Ch. Procedure Technical
''. Exclusion of Parties
In proportion to the success with which the art of making business as above was exercised /practiced, as above/, in its several branches of encreasing number and length of instruments and operations, encreasing the number of the hands employed about them or making as if they were employed, it would naturally be more and more difficult for a suitor to be or so much as fancy himself to be, equal on this purposely roughened and broken ground, to the task of carrying on his own business. The more difficult therefore it became to the party to speak /address himself/ to the Judge to any effectual /useful/ purpose the more ready he would be to abandon the ground altogether to professional assistants who had made it the study of their lives to become, or to appear to have become acquainted with it.
As the art of business-making went on, the course /branch/ of procedure was converted into a kind of labyrinth, dark and dismall full of turnings and windings, many of them so contrived as to carry the unexperienced traveller back to the spot from whence he had set out, with not a few pitfalls, covered over with these coverings the deceitfulness of which was not to be discovered it at all, by any but well practiced eyes.
For the more effectual accomplishment of this desirable result obvious enigmas were contrived /constructed or kept up/, the principal /most remarkable/ and efficient of which will a little further on receive a separate consideration, in /under/ so many distinct chapters /heads/, under the heads of Irrelevant Decision, Fiction, Non-homologation or Jurisprudential law, Non-notification or Non-promulgation, and Non-digestion: all which acting, under which may be included, in so far as they were produced or accompanied by reflection, may be included negligences, may be considered as so many devices or heads of policy, sowing for the development, formation and /or/ protection of the technical system in a state[?] a more or less flourishing, all over the [...?], but no where, in some parts of it at least, a state of so [...?] maturity as in England.
16 June 1805
Evidence
Introd
Ch. Procedure Technical
''.6 Minor advantages
Two advantages though of minor /subordinate/ importance are too material /not/ to be omitted /mentioned/, though the relation they bear to the system is perhaps rather that of consequences than that of final causes
1. One is the advantage of doing ones business in good company: in select company of intimates, having the same /connected by identity of/ interests, affections, ideas, manners: these too in a state of subordination and dependence in relation to the Judge. In such company, from such courses whatever matter comes to be presented, will of course be presented in a form the smoothest and most acceptable that can be devised.
Another is the negative advantage of not being obtruded upon by bad company: a short phrase for a numerous and miscellaneous list of negative advantages, amongst which is that of a mans not being obliged /escaping/ /being exempted/ to hear abundance of things /discourses/ which it might be inconvenient to him to hear, to see abundance of sights /things/ which it might be inconvenient to him to see: [...?] and spectacle of woe, misery in all its forms, scenes of [...?], from which his profit is extracted, and to the depth of which it is proportioned.
But that from any sympathetic failings that could be executed[?] /executable[?]/ by such objects in such experienced breasts might not find fortitude sufficient for their endurance, but that inasmuch in whatever a man know, he would at the same be known to know, dissatisfaction might chance to be excited in the minds of bystanders as well as parties /suitors/, from the observation /reflection/ should it happen to them to observe /consider/ how efficient a part in the aggravation or production of the discourse was taken /borne/ by the hand professedly occupied in the application of the remedy. Whatever mischiefs it could be inconvenient to him /a man/ to prevent, much more those that /to which/ it is convenient to him to give birth /produce/, no more facts of understanding /as backward to comprehend/ how inconvenient it would be to have to be so much as suspected, much more to be known, to know.
The [...?] of professional lawyers, one believed another, serve[?] s so many serves which prevent the light of unwelcome truth from being seen to reach the Judge's /great man's/ eyes.
17 June 1805
Evidence
Introd.
Ch. Procedure Technical
''5. Exclusion of Parties [...?]
Here then we have separate & distinguishable five distinct masses of advantages reaped by the lawyer from every penny of factitious expence added by him to the expence naturally attendant on the system of procedure: - 1. immediate pecuniary profit: viz the amount of the profit extracted by him out of that expence form the suits which it has not had the effect of preventing - the number of profit yielding suits remaining the same: - 2. case, by the amount of unprofit yielding suits prevented by it. 3. pecuniary profit produced in a less immediate way by the encrease in the number of profit-yielding suits - amount of mala fide oppression suits, mala fide demands and mala fide defences, suits produced by the man of law by selling the irresistible faculty of oppression to every wrong doer who finding his adversary, destitute of the faculty of assistance is able & willing to come up /make the purchase/ to the vendor's price - 4. convenience of acting in pleasant company - 5. convenience of not being troubled by unwelcome company.
22 June 1805
Evidence
Introd
Ch. Procedure Technical
Those of the principle of corruption in the Natural system generally irresistible.
A man in whose mind the idea of human misery by wholesale /in immense masses/ is by a train of experiences continuing /occupying/ through the whole track of life connected /associated/ in the character of a cause with wealth, power, glory, every thing that is dearest to mans heart /most dear to [...?] man/ /that wealth flowing into his own coffers, that power wielded by his own sceptre, that glory circling his own brow/, is it in the nature of man that any other emotion than that of delight, or at the least of faint and inoperative[?] regret should accompany the idea of that exterior and distant however enormous evil, or if any event or state of things that comes to be regarded as a cause of it?
If either in deportment or language or deportment in [...?] hands and pathetic spectres[?] any symptoms of concern are /be/ uttered in [...?] can they be any thing better than a varnish laid by [...?] over a ground of selfishness or hypocrisy or self interest /professional congruity/ /necessity/ over a ground of selfishness /self-regard/.
Are not the most admirable and fascinating actors, the most displayers[?] of counterfeit feeling known, by those who see them when the [...?] is of, to be actors and no more?
After a moments reflection, will any man be weak /is there any man weak/ enough to suppose that the real sufferings are more severely felt by [...?] /[...?]/, than the [...?] cook[?] in the story-book who - where occupied in skinning eels alive, and asked how he would be so wise[?], [...?] - they are used to it /it is no more than/ what is he but the Judge, under the French English technical system, stripped of the masquerade accoutrements /decorations/ of borrowed [...?] and conscience[?]. The fact /cause assigned/ was true though the expression was of that confused sort /perplexed texture/ which is so naturally employed by shame for /as/ a covering for guilt. Usage there really was though not in the exact quarter /exactly in the quarter/ to which it was referred: usage there really was: and as truly as that usage was to be found the cause of apathy and indifference.
Can it seriously be expected, that man will be occupied, constantly and habitually and zealously throughout life, in thwarting his own interests and wishes?
[...?] [...?] [...?] is the [...?] [...?]:
[...?] [...?] delay [...?] in the comment made upon it by [...?] is highest in the judicial hierarchy of England.
By the men of law many [...?], at the expence of how many broken [...?] may not that and have been purchased?
Known by those who are in the [...?] of private lifes, known
Why /How could you/, to get keep many wrinkles cash for six month in texture. Answer - they are used to it.
13 Feb 1804
Evidence
Securities
Ch. Summary
Engl. Law
Of /In/ these four [...?] Tribunals (Courts of Conscience, Single Purpose[?], Courts Martial and Arbitration Courts) the composition /judicature/ might upon the[?] whole be bad in the extreme, and the system of /exclusive [...?]/ procedure, the natural system - pushed[?] in those Courts, be not the less indisputable.
The connection between the composition of the tribunal and its form of the evidence is altogether accidental. There can be no norm[?] in saying
There is no reason whatsoever. Why the absence of a Jury should prevent the evidence from being extracted in the best mode. Why the evidence should /must/ be extracted in a bad mode /way/, because no Jury is called in to hear it. Reasons might not be altogether wanting why a Jury should be less qualified than a professional Judge to decide upon hear nothing but written evidence: none can be given why a professional lawyer should be less qualified than a Jury for determining upon /judging from/ /hearing/ vivâ voce evidence. From the idea /In the notion/ of saving the time of professional men, clearly purchased /well paid/ as it is, no reason can be drawn /found/ for the difference. the time of a lawyer /dignitary of the law/ with the title of Lord Chief Justice is not thought too great a sacrifice, even with the addition of that of [...?] good men and true, for whose time no compensation at all is made or none that is adequate is made. Why should a thirteenth part of the time be looked upon as too much /too much/, because the functionary whose time it is, is called a chancellor.
On this as in other points what /whatever/ is established is what is most convenient. the existing order of things is that which is most convenient has but the conveniences not to the suitors but to lawyers. [...?] consulted is /had been/ not that of the suitors /suckers/, but that of the lawyers /man of law/. Stripped of the circumstances /[...?] which /of/ the securities for /pledges of its/ trustworthiness are composed, the evidence when in the written form is cleared of a number of incidents which would take up /have taken up so much/ time. As to the Judge, listening or appearing to listen to a bind roll /paper/ /string/ of written depositions or affidavits, all clothed in uniform /the uniform of law language/ he catches up on these occasions such woods /passages/ as the most prominent passages happen to strike him as most prominent, and bestows as little expense of thought /no more thought/ upon the subject than he finds convenient /feels himself disposed to share/. Had evidence on the same subject made its appearance /come before him/ in the dramatic form of vivâ voce examination, the audience would on their part have been bread[?] make, and their attention, all along, and upon the stretch would have commanded /called for/ an equally [...?] attention on the part of the Judge.
13 Feb 1804
Evidence
Securities
Ch. Summary
Engl. Law
If justice be worth the time bestowed upon it in this way in a court called the King's Bench /a Court of Common Law/ there is no reason why it should be worth less in another court, called a Court of Chancery /the /a/ Court of Equity/. At any rate it is not the fear /horror/ of delay that prevents men in the Court of Chancery from bestowing the time required by justice necessary to be employed by the Judge who thinks /would[?]/ it worth his while to do justice.
Other systems can shew greater imperfections /absurdities/, but none can shew equal inconsistencies. No other nation can produce two Courts of equal dignity, sitting within ten feet of each other, and deciding continually upon mutually repugnant /disparate or opposite/ principles. In no other nation is a Court to be seen which employs itself in stopping suits that did not begin it, and in beginning suits that can not be ended in it.
Not other nation has the misfortune of seeing the law the rule of action, split into two joining /everlasting/ divisions /fragments/ /fractions/ - one which is supposed to be of an ordinary kind, and replaces the name of law; the other which is supposed to be of a superior sort /a better sort/, and is called Equity
See which is at liberty to try causes in a proper way, and accordingly does os in some instances: another which is not in the habit of trying causes, and therefore never does try any in a proper way, but when it happens to think fit they should be tried in a proper way sends them to be tried elsewhere.
Suppose the interest /a regard for justice/ of the suitors to have been the object /final cause/ of all these inconsistencies /Agents[?]/ to a regard for justice every thing is inexplicable: ascribe them to a regard for an interest opposite /an opposite interest/ to that of justice /the suitor/, every thing is plain and easy.