date

[059-211] 18 May 1805 Evidence
[059-211]

18 May 1805

Evidence

Introd.

In so far as any encrease in the number of suits receives its existence from this cause, the question on which it /the suit turns, --- ----- --/ is the object of the suit to obtain as decision, is the question of law .

The tenor of the substantive law being supposed clear - not ambiguous - the raising the number of well grounded suits to its maximum is thus --ing the legitimate ends of procedure - Why? because it is only in proportion as it /this number/ approaches to this /its/ maximum that the direct ends of procedure are necessarily fulfilled: it is only in so far as a just cause of suit , is followed either by the rendering of the service in question without suit, where that can be done with propriety which it cannot be in a formal case, or by actual suit /by actual pursuit of the demand/, followed by a decision grounded on the demand; and rendering the service which is the object of it. a So often as the cause of suit remaining in existence, actual suit fails of being instituted, injustice is the result /consequence/ the dead end if procedure in one or other of its branches, remains disfulfilled.

By any encrease in the number of ill-grounded suits, suits instituted without a just cause, whether with or without a -------- of this groundlessness, no such advantage is obtained: - why? because in any such suit, if the service demanded be rendered, that service being by the supposition not due, injustice /is done/ to the ------ of the defendant is done, the ultimate collateral end of procedure, in one or other of its three branches is contravened.

a In the penal branch, an exception to this rule is ----- by the case of a multitude of delinquents too great for punishment. Cases exist in no small number ----- (the case of a civil war with alternate triumphs, for example) in which the whole population of a country may be /find itself/ involved in the predicament of delinquency. In a case of this sort, it is evident that as it can not be desirable that every delinquent should be punished, so neither is it that every delinquent should be prosecuted.
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  • Title: [18 May 1805 Evidence Evils]
    Description: 18 May 1805

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    Effects of reform on the no of judges

    In the aggregate assemblage of the ends of procedure are included in substance /in purport/ though not in name /tenor/, two distinguishable objects: 1. the raising to its maximum the number of well-founded, i.e. non-temerarious and bonâ fide suits: the ----- to it minimum the number of ill-founded, i.e. temerarious and malâ fide suits. It is rarely by means of a suit /by means of a legal ----/ as often as the occasion a just occasion for the demand - a just cause of suit - presents itself, that the prescriptions of substantive law in that regard can be fulfilled.

    I say the increasing the number of well-founded, bonâ fide suits is among the ends of procedure /legislation/. Not that any increase in the number of suits of any kind /description/ is not in itself an evil (it is always so in virtue of the attendant vexation and expence attending them - it can never fail of being so) but in as much as so far as it extends, in so far as is necessary to the attainment of a preponderant good. Not that by the production of such ----- it may not happen to a law to be productive not only of evil but of preponderant evil: - but /that/ where the evil is thus preponderant, it is the work and product not only of the adjective system of law, but of the same /correspondent/ part or other of the substantive.

    By the ambiguity of its tenor, it may but too easily happen to the substantive branch of the law to give birth to a /an almost endless/ multitude of suits: but in this case the cause /fault/ of the evil lies solely in that branch of the law not in any respect in the adjective - not in the system of procedure.

    A case in which a misfortune of this head is still more apt to happen is that where the corresponding article of the substantive law in question has no tenor at all: which is the case in so far as the substantive branch of the body of the law remains /is suffered to remain/ in the form, or rather the no-form of jurisprudential law; but of this more fully in its place.
  • Title: [26 May 1805 Evidence Introd]
    Description: 26 May 1805

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    But the argument is not yet put to s-----. Looking a little deeper into the subject it reproduces itself in this form.

    Suppose (according to what appears to be your wish) suppose the whole burthen of factitious expence taken off at once. An addition, and that a very great and sudden one to the number of suits to the number of suits defended as well as suits instituted is no more than what you would expect to take place. Among these will be many that will be well-grounded: on the score of these carry so much (your right is admitted) to the account of good. But along with these will be others that will be ill-grounded: on this score of these you can not refuse to carry a proportionable /-----/ amount to the account of evil. But these evil-producing suits are as truly the product of your supposed reform as the good-producing ones: can you take upon you to say that the good of the one is preponderant over the evil of the other.

    I answer /My answer is/ - I think I might. But with respect to the /for deciding a/ practical question, another question presents itself as the satisfactory and ------ heading to the most satisfactory solution by the shortest road.

    The evil attending the ill-grounded part of this mass of new-produced suits is admitted. But still the question recurrs whether a burthen confined to such litigants on the part of whom the litigation is forced(?) to be ill-grounded would not have a stronger tendency to diminish the proportionable number of ill-grounded suits thence a burthen of the same weight thrown alike upon those on whose part the litigation is well-grounded as upon those on whose part it is ill-grounded?
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    In proportion, generally speaking, to the intricacy of the cause /suit/, as constituted by these several causes of complication, one or more of these, will be the danger of wrongful decision to the prejudice of the one side or the other, and the probable degree of delay, and thence of vexation and expense.

    The conclusion however would be as /alike/ erroneous as /---/ it would be deplorable /disheartening/, if from a view of all those possible and non continually operating causes of complication, compared with the small number of sorts of cases exhibiting the maximum of simplicity any such inference were to be drawn as that the number of complex cases individually taken, were in anything like that proportion to the number of most simple cases, individually taken. So far from this supposed state of things is the truth, that if /were/ /upon/ a correct account of such actually constituted it would appear - that the aggregate number of complex causes, in a year of all degrees of complexity taken together bears but a small ratio to the number of most simple causes instituted in the same term.