date

May 1805 Evidence Ends
May 1805

Evidence

Ends

Ch. Conflict

' Practical?

That schism[?], such as it is, is the stronghold of that system of procedure, which we shall have occasion to mark out for merited public indignation, under the name of the technical.

We shall then see in a further point of view, the importance of the epithets necessary and preponderant, but particularly of the epithet necessary, employed for applying the limitation of description of the incidental ends of procedure: avoidance of vexation, expense and delay in so far as not necessary and where preponderant.

In every instance, to the avoidance of misdecision, a certain increase of vexation, expense and delay is necessary. Such on every occasion is the plea of the man of law in favour of the quantum, for the measures of those evils to which on that occasion he has given birth. Yes vexation, expense and delay are necessary: yes in a certain quantity, on every occasion, they are all necessary: but the quantum to which on this or that occasion you have introduced /given birth/ is it on the whole? and without distinction or deduction necessary? if it is sois what you should to prove. That they are all of them, and every particle of them so much evil, is too evident to bear denial: to introduce evil is an operation necessary to all government: but on every occasion in which any particle of it is either introduced or suffered, two propositions require to be made out by him by whom it is introduced, suffered or descended: that the good, for the sake of which the evil is introduced or suffered is with reference to the evil preponderant in value: and that to the purchase of the good, the evil is necessary to the purchase of the good.
Similar Items
  • Title: [17 April 1805 Evidence Procedure]
    Description: 17 April 1805

    Evidence

    Procedure Technical

    Conclusion

    Of the burthen with which in the shape of delay, the collateral inconvenience vexation and expense the technical system is every where loaded, the enormity is too palpable to be disputed or disembled: disembled, even by those who by every bond of interest and prejudice are urged down to the defence of it. The current plea is that all this collateral inconvenience is necessary, or at least conducive to the attainment of the main object, the avoidance of misdecision: that the submission to the collateral burthen of the lesser inconvenience is the price necessarily paid, and amply compensated by the exemption by which mankind are liberated from the direct and more intolerable mischief /grievance/: and if not directly asserted, an opinion /a position/ is at any rate intimated, and must for the purpose of the defence /argument/ be introduced /accorded/ , that the quantum of advantage thus obtained rises /encreases/ in proportion to the quantum of the price thus paid

    In the course of the present book it will be seen whether the sum of advantage thus supposed to be purchased, and purchased at so high a price, is positive, or equal to, or negative. In the /the future/ /work on/ the rationale of procedure some conception will be endeavoured to be conveyed of the amount of that source /burthen/ of inconvenience by which the mass of inconvenience attached in the shape of delay, vexation and expense to the technical system of procedure exceeds the mass of like nature attached to the natural system of procedure. It will then, nor can it till then, be seen, in any sufficient detail, how enormous the price in which in that shape - men have /are/ everywhere been forced to pay and for nothing, but for much worse. /not for superior but for inferior justice./
  • Title: [3 May 1805 Evidence Introd]
    Description: 3 May 1805

    Evidence

    Introd.

    Ch.5. Collateral Incidental

    '.2 Limitations

    '. Limitations necessary to the description of these evils.

    First incidental collateral end - avoidance of vexation understand where[?] unnecessary or preponderant

    /Meantime/ Of these several evils there is not one[?] which, in some quantity or other is not inseparably attached to the system of procedure - to every[?] suit without exception to which it can happen to be carried on under the system of arrangements of which that system is composed. To propose for an end of procedure simply and crudely - to propose in that character, without limitation - the compleat avoidance of vexation, of expence of delay - would be to propose as an object of endeavour - a good - the attainment of which is upon the face of it impossible. Important therefore as it is /Much therefore as it is to be wished/ that these evils should as much as possible be avoided and averted, it is not till after some limitation has been set to the description of them that the avoidance of them can be stated as a rational object of human endeavour /legislative industry/.

    For the description of this limitation two considerations present themselves.)

    Suppose the evil in question, suppose it either in the whole, or in any part of it, not necessary to the production of the good - in the pursuit of which it is liable to be produced: it is then so much pure evil: and in that character the possibility as well as propriety of endeavouring to exclude it, follows of course. First limitation concerning[?] the description of the evil to be avoided; the [...?] [...?] if taken, applied by the epithet unnecessary: instead of vexation simply, say vexation unnecessary, vexation where unnecessary: - and so of the rest[?]

    + Introd. Ch. Cases unmixt[?] for punishment.
  • Title: [27 May 1805 Evidence Introd]
    Description: 27 May 1805

    Evidence

    Introd.

    ch. Evils causes - non demand

    (1

    Considering litigation as an evil, wherein does the evil consist? Indubitably, either in judicial vexation, judicial expence, or in both together.

    But how But in what case is there anything in it of pure evil? Where being necessary to the fulfilment of the more important ends it is not /the evil if/ in quantity and proportion /-- ----/ preponderant over the good consisting in the fulfilment of those ends? No certainly.

    When upon the whole it is an evil, it is so no otherwise than because and where the vexation of which it consists (the expence included) as either necessary or preponderant.

    Under this limitation and not otherwise it becomes the legislator to use his endeavours to suppress it altogether. But in all cases it is also the duty of the legislator to use employ/ his endeavours to reduce the quantum of it to its minimum: to the least quantity to which it can be reduced, consistently with the regard due to the other ends of justice.

    To use /employ/ his endeavours to this end, is to apply /employ/ such arrangements as promise to be effectual in the character of remedies: but to know /determine/ what are the proper remedies to the mischief a preliminary step is to ---- what are its real causes. The causes are

    1. On the part of the law the uncertainty of the law. By this circumstance litigants of both descriptions blameable and unblamable, are engaged as will be seen in the branch of vexatious litigation /procedure/. Remedy giving to the law the utmost degree of certainty of which it is susceptible.

    2. On the part of either party, mala fides, or the party grounding his hopes of success on false or fallacious evidence, the falsehood or fallaciousness of which he is himself ------ed. Remedies the several remedies proper to be applied by the law against unforthcomingness and fallaciousness on the part of the evidence.

    3. On the part of either party, mala fides, the party grounding his hopes of success on the detaining or -------ing by means of vexation and expense the adverse party from commencing or continuing his demand or defence. Remedies 1. negative, forbearing altogether to make any ---- addition to the naturally necessary quantity either of vexation or expence: 2. Arrangements for defraying the naturally necessary expence, in favour of such suitors (including would-be) suitors as possess not the means of defraying it for themselves.