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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.
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Title: [26 May 1805 Evidence Introd]Description: 26 May 1805 Evidence Introd. ch. Evils causes - non demand (2 '1 Stet? 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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Title: [18 May 1805 Evidence Introd]Description: 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.
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Title: [26 May 1805 Evidence Introd]Description: 26 May 1805 Evidence Introd. ch. Evils causes - non demand (2 '1 Stet? By another question the matter may perhaps be still more clear. Whatever expence is at present thrown indiscriminately upon those on whose part the litigation is ill-grounded and upon those on whose part it is well-grounded, suppose the expense were to be taken off /removed/ altogether from those on whose part it is well-grounded, and /but/ at the same time preserved to press with the same force as at present, of such an arrangement would not the effect be to render the number (the proportionable number at least)of ill-grounded suits less than it is at present? That the purpose of justice and the interest of the public would be better served by such a state of things than by the existing state of things, seems hardly to be doubted, is a proposition the denial of which seems not quite so easy /practicable/ as if practicable it would /might/ to some ----- descriptions of men be desirable. The result is that litigation being an evil, the less is the quantity to which it is reduced the better, so it be without ------ to the fulfilment of the direct and ultimately collateral ends of justice. That, in so far as it has for its cause the uncertainty of the law, the proper, effectual and only proper effectual ends of labouring in the ridicule of it is by Criteria of the utility of the reform. The reform useful 1. if cause of small value ----- 2. if causes of great value are not increased or diminished.
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