059-446.xml

Title: [4 July 1804 Procedure & Evidence]

Description: 4 July 1804

Procedure & Evidence

Evils[?]

Ch.│ │ Vexation

'.2. Persons

So far as it rests upon the parties, or at least that one of them that is in the right, vexation, besides being in itself /its insulated character/ an evil, is an /so/ evil in the character of a cause of other evils: viz: the evils opposite to the several ends of procedure before mentioned. In this /its prolific //derivative/ character the mischief flowing from it will be found to be much heavier /still more serious/ than any /that/ that which belongs to it considered in itself, and independently of all consequences. But in this ulterior character it will find its place under a separate head.

059-153.xml

Title: [8 July 1804 Procedure and Evidence]

Description: 8 July 1804

Procedure and Evidence

Evil causes 4th order

5. Anti-merits substantive law

 This not in evidence ----- within procedure

In popular language /in common speech/ grounds of decision foreign to the merits are characterized by the words quirk and quibble.

Technical - a word of Grecian origin, is exactly synonymous to artificial. In the present instance this epithet is applied with disputable propriety. A technical reason is a sort of an argument which would not have presented itself in the character of a reason to any eye but that of a professional lawyer. An argument /a -----/ the use /origin/ of which in that character is exclusively to be looked for in the prejudices and sinister interests and artifices of the profession.

Accordingly in the whole list of fictitious /technical/ reasons or modes of ----- to which this ------ is capable of being affixed not a single article will ever be found that will not, when compared to the standard of utility be found absurd and mischievous: absurd /absurd currently/ in its notion, mischievous /mischievous , finally/ in its consequences.

In the adjective branch, the nature of these grounds is considerably different from what it is in the substantive.

In the substantive branch it consists throughout in giving to/affixing to /fixing upon/ some word or phrase in common use a sense /some signification/ or other which at the time in question had never been given to it by any man who was not a lawyer: or in annexing to some rule founded on obvious utility, an exception that not being grounded on utility would never have occurred /been presented/ to any human mind by considerations originating in that source.

Take for example /take an example/. By a general rule of law (jurisprudencial law) --- such as in common acceptance are understood to be composed(?) under the name of theft, are understood to have been made the subject of a prohibition (a virtual prohibition) and that prohibition backed by a certain mode or modes of punishment.

When another man would say theft, a lawyer says larceny; and in virtue of an exception grounded on a phantasm of the imagination expressed by some such words as these with whatever savours of reality, theft, when committed on any one of a great variety of things placed in the circumstances alluded to by those words, is understood not to be larceny nor therefore punishable as such.

058-127.xml

Title: [May 1805 Evidence Ends]

Description: 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.