date

24 April 1805 Evidence Ends
24 April 1805

Evidence

Ends

Ch. 4 Conflict

On the occasion /subject/ of this double conflict, the following differences may be remarked /present a claim to notice/

In regard to the conflict between the collateral end (which is always of a negative cast /complexion/) and the direct positive end as often as it really takes place, the opposition /two pursuits/ /opposite/ will be irreconcilable; of one or other object a sacrifice must be made. Without the production of some degree of delay, vexation and expence the main object, as already observed - the fulfilment of the article of substantive law in question whatever it, whether by infliction of punishment, administering of satisfaction or collation[?] of right, can never be accomplished or so much as aimed at: on the other hand, in some instances so it will be, that the collateral object, where it happens to be the preferable one - the avoiding to produce the necessary mass of delay vexation and expence where it happens to be preponderant can not be obtained, unless in the instance in question, the main object be utterly abandoned. /compleatly given up./ The object in demand /article demanded/ is of the value of a days labour: the testimony of Martyr is necessary to prove the plaintiffs title to it. If the abode of martyr be but a minute or two of a degree the vexation and expence produced by his attendance in the character of a witness may not be preponderant; and so far the two conflicting ends of judicature, the direct and the collateral, may in a certain degree be reconciled. Place Martyr at the antipodes, all reconciliation - all compromise - is impossible. l Either the claimant must lose his right altogether, or the witness must be loaded with such a mass of vexation and expence, that in comparison of it the burthen imposed upon the plaintiff by the loss of his right, is but as a feather[?] to a milstone[?]
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    Description: 23 April 1805

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    Ch Conflict

    '. Conflict

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    '. Ch. Conflict between /amongst/ the abovementioned ends

    That between /amongst/ the the several objects above announced in the character of ends - of ends of justice, that is between the pursuits respectively directed to those objects, there naturally and unnecessarily exists a certain degree of natural continuity[?], is manifest at first sight. If to the positive, though limited, quantities expressed by the epithets unnecessary and preponderant annexed /attached/ to the names of the respective evils - vexation, expence &[?] delay evils we were to substitute the absence or negation of those several evils the pursuit of these collateral ends would thus be rendered altogether incompatible with the pursuit of the main or direct end - fulfilment of the predictions delivered by the substantive branch of the law. All procedure, how summary and expeditious soever supposes some delay - i.e. some time spent /employed and consumed/: all procedure supposes some vexation, all procedure supposes some expence, or at least some consumption of time and labour, an expenditure which is the equivalent of some expence. If, without regard to the main or direct end, and the mischief that would ensue from the neglect of it, the collateral end in those its several branches were to be exclusively pursued, there would be one, and but sure course for the attainment of it, viz /and that is/: to relinquish the pursuit of the main end altogether. Give up all recourse to justice, you rid yourself at once of all the inconveniences that result from the recourse to justice. The whole fabric of Society it is true is dissolved, and the humane race extinct, or thrown[?] back[?] into[?] the savage. The species is either destroyed or ruined: but at that price, the evils incident to litigation are done away.
  • Title: [24 April 1805 Evidence Ends]
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    To make for the reconciliation of these rival ends the best provision which /such provision as/ the nature of things admitts of, requires a certain range /extent/ of thought: a qualification of which the demand is every where, the example no where. Of all men possessing or claiming the character /appellation/ of a man of science, the narrowest in his views is the man of law. AS /Compare on this ground/ /[...?] together/ the mole is to the eagle[?] so is the man of law to the natural philosopher: if in Bacon we see an eagle, in Coke[?] we may see a mole. AS the mole is to the eagle, so is a Coke to a Bacon, so is the man of law compared to the natural philosopher/surveyor of the works of nature/, better named[?] by the French the physiciens[?]

    For the adjustment of these difficulties /contrarieties/ no symptoms of /scarce a symptom of/ thinking is any where discoverable among lawyers, or (such as legislators have every where been landlords[?]) among lawyer-led and lawyer-ridden legislators: always /on every occasion/ the main end pursued without a thought about the collateral, or the collateral without a thought about the main end about its antagonist. Particular examples of this will be seen, when under the head of Exclusion of evidence, we come to speak of the narrow and almost unheeded[?] class of cases in which that sort of arrangement may be dictated by preponderant utility.

    But in a system of oversights and negligences /imperfections/ /deficiencies/ it will sometimes happen that one /the mischief /effects[?]/ of one/ oversight or one negligence, will be lessened[?] by another /corrected by another/: accordingly in the article of extent of local jurisdiction we shall find the impotence of the man of law setting limits to the vexation that might have been produced by the blind pursuit of the main end with its attendant perquisites, without regard to the collateral end. /If/ To give testimony about the value of a sucking pig or a days food for a horse a man could not be brought from the antipodes, why was it? not because any body cared about the vexation /the vexation was ever thought of/, but because the process for the summoning of a man to [...?] and give his testimony had not been framed so as to /originally framed to/ reach to any such distance.
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    Ch. Procedure Natural

    ''.7. Extensions for Distance

    The above may be sen a slight /general/ outline of the natural system of procedure, in the first place in that original and most simple form or modification in which it coincides altogether with domestic judicature, in the next place in the two modifications of it which under corresponding circumstances, have necessity[?] that is avoidance of preponderant delay, expence and vexation, for their cause.

    The filling up of this outline the full development of this system in its leading /essential/ feature the efficient[?] causes of its utility - of its submissive /its exclusive/ subservience to the ends of justice - will constitute the business of the present book: understand of such parts of the system - of such of the arrangements comprized in it, as have for their main object, the accomplishment of the direct end of judication, right /just/ decision, avoidance of misdecision: those which have for their object the accomplishment of the collateral end of judicature in any of its branches - viz: the reduction of inconvenience in the shape of delay vexation and expence to its least dimensions will no otherwise be brought to view here, than in as far as they are inextricably connected with the arrangements subservient to the direct end as above described /indicated/: by a shred [...?] their plan will be found in the Rationale of procedure.