date

18 May 1805 Evidence Introd
18 May 1805

Evidence

Introd.

Until and unless this distinction is duly attended to and allowed for, it can not be said to be among the legitimate ends or objects of procedure either to encrease or diminish the number of suits: neither an increase or /nor/ a diminution in the number of suits can with any propriety be set down to the account either of advantage or disadvantage.

The tenor of the corresponding mass of substantive law being given, the texture of the corresponding system of adjective law - of procedure is so much the better as it tends to encrease or rather as it does not tend to diminish, the number of well-grounded, i.e. non temerarious and non-mala fide suits. It is so much the worse as it tends to encrease the number of temerarious but more especially mala fide suits.
Similar Items
  • Title: [18 May 1805 Evidence Evils]
    Description: 18 May 1805

    Evidence

    Evils causes

    ch. -----------

    ' Effects on --------

    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

    Evidence

    Introd.

    ch. Evils causes - non demand

    (2 '1

    Stet?

    The argument thence runs thus - Litigation is an evil. Whatever tends to diminish the number of suits tends to diminish litigation: vexation and expence to /imposed on/ litigants tend to diminish the number of suits, therefore vexation and expence to litigants diminish evil, and in that respect are a good.

    By itself the proposition is true enough: but in the character of a justification of the arrangements in question it amounts to nothing. Good and evil together are produced by almost every measure of government that can be named: upon the proportion between the two depends the eligibility of the measure.

    The question as rightly and usefully stated, will stand thus. In as far as litigation is attended with pure or preponderant evil, which is the most eligible (i.e. the cheapest as well as most efficient) remedy for the suppression /repression/ of it, burthen of expence thrown indiscriminately without regard to right or wrong, or burthen of expence confined to misconduct and measured out according to the degree?

    In many cases, when a question is properly /clearly and -------/ stated, the answer follows of course: the present seems to be /presents itself as being/ of the number of those cases.
  • Title: [17 June 1805 Evidence Introd]
    Description: 17 June 1805

    Evidence

    Introd.

    Ch. Procedure Technical

    ''5. Exclusion of Parties [...?]

    Here then we have separate & distinguishable five distinct masses of advantages reaped by the lawyer from every penny of factitious expence added by him to the expence naturally attendant on the system of procedure: - 1. immediate pecuniary profit: viz the amount of the profit extracted by him out of that expence form the suits which it has not had the effect of preventing - the number of profit yielding suits remaining the same: - 2. case, by the amount of unprofit yielding suits prevented by it. 3. pecuniary profit produced in a less immediate way by the encrease in the number of profit-yielding suits - amount of mala fide oppression suits, mala fide demands and mala fide defences, suits produced by the man of law by selling the irresistible faculty of oppression to every wrong doer who finding his adversary, destitute of the faculty of assistance is able & willing to come up /make the purchase/ to the vendor's price - 4. convenience of acting in pleasant company - 5. convenience of not being troubled by unwelcome company.