date

18 July 1805 Evidence Note
18 July 1805

Evidence

Note?

Introd. Jurisprudential

Ch. II Vices

'' Ex post facto

Equity Jurisdiction

As to the bounds as between Equity and Common Law of the four magical words, three of which from Lord Coke, Fraud in Lord Coke's time [...?], Trust In Lo Coke's time confidence, and accident, it seems now pretty generally understood but they afford no light at all. As to selecting /indicating/ bounds, where none exist none can be indicated. But as to lights, there are two other words which had they been thought of would have thrown rather more light on the subject than any on of the above four cabbalistic ones. These are - complex causes or in one word complexity, and Jury. Complex causes are peculiarly suitable to the mode of procedure persued in a Court of Equity in contradistinction to a Court of Common Law: and the more so the more complex. why in contra-distinction to a court of Common Law? because except a expected in a few particular cases, a Court of Common Law can give no ultimate decisions without a Jury: and /of a cause which/ when a cause has swelled to a certain degree of complexity, that a Jury should take any rational cognizance of it if they matter physically impossible.

Why again is it that a Court of Equity is so continually and in some instances so exclusively well adapted /adapted/ to the taking cognizance of the complex causes? Because, the mode of its procedure how bad soever in other respects is such as enables it to take cognizance of the most complex causes. For the different modes of complexity, are ways in which a cause may become complex see the Table of Complexity or Complex Causes.

To the time which a /set of men acting in the capacity of a Jury are/ Jury is capable of employing about a cause there are limits and these comparatively narrow: to he time which a single Judge, or set of men acting together in the character of professional Judges, are capable of employing about a Cause, there are no such limits. When a cause is in the way of Common Law tried before a Jury the /[...?]/ best evidence, viz: that of the defendant, (and no matter if the only evidence) is carefully excluded. When a cause is tried /carried in/ in a Court of Equity, that same evidence, though not suffered to be extracted in any other than a bad mode, is extracted early in the suit, and is the first that is extracted.
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    This consideration /observation/ might operate in vindication of the uncertainty, dilatoriness, vexatiousness, and expenciveness of the English system /established systems/ of procedure, if in these systems the mass of those evils were in any tolerably exact proportion to the complexity of the suit, as produced by the above causes. But, look at the actual /established/ state of things, no such proportion nor anything like it will be discernible.

    The only appearance and that altogether a faint one that can be discovered of any thing like the observance of any such proposition, is what is /may be found/ discoverable in the law, confused and indeterminate as it is in so great a part of its extent, that masters[?] the bounds between the jurisdiction of the courts called Common Law Courts and the Courts called Courts of Equity. In the Courts of Equity the mode of proceeding is more dilatory than is in the Common Law Courts, and it is in these Equity Courts that causes are carried on of a nature more complex than any that are carried on in the Common Law Courts. In this observation, general and indeterminate as it is, is included everything that can be said in affirmance of a proposition between the intricacy of the system of procedure and the natural complexity of the cause.
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    On the other hand, as the ----- becomes more and more particular /as we descend to particulars/, the proofs in ------ of any /all/ such proposition will be more and more conspicuous and abundant.

    1. In the first place in both sorts of Courts the mode of procedure is exactly the same in the most simple cases of which they have cognizance respectively as in the most complex cases. Therefore in neither is the natural complexity of the case the cause of the complexity of the mode of procedure.

    2. In the Common Law courts the arrangements out of which the frequency of wrongful decision (decision in favour of the party in the wrong, on points foreign to the merits) and the super abundance of delay, vexation and expence arise, are arrangements which have nothing with the nature of the cause in respect of simplicity or complexity. They apply alike to the most simple and the most complex. (a) And taken ----- in the mass are as is by far the greater part of that mass alike superfluous and in every one of those respects pernicious in both instances.

    (a) Except only those suits in which the cause of complexity is the unforthcomingness of the defendant. In this case, it is obvious that arrangements must be applied and brought into use that have no application where the person on whom the demand is made is forthcoming, and appears in the character of defendant in the suit.
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    2. That their authority and the extent of it have been subject of much question. Accordingly, for any thing that is here done to put an end to such question, so they do or may still continue.

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