date

26 May 1805 Evidence Introd
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.
Similar Items
  • 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?
  • 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: [26 May 1805 Evidence Introd]
    Description: 26 May 1805

    Evidence

    Introd.

    ch. Evils causes

    Stet?

    Ch. Of non-demand - litigation how far an evil - its true remedy /what the true remedy/.

    That failure of justice is an evil, is a truth too palpable /clear/ to be disputed. That of the causes of failure of justice non-demand is one, is another truth equally indivisible. That in so far as non-demand has failure of justice for its effect non-demand will /-----/ also be an evil, is another proposition not much exposed (it should seem) to dispute.

    But litigiousness (it may be noticed on the other hand) is it not an evil quality? And by litigation is it not /the word/ a conjugate of litigiousness? Is there any thing else but the tendency to produce litigation that makes /-----/ litigiousness an evil quality /in the ----ing/.

    Thus it is that indistinct ideas are perpetuated by ill-applied words: and under favour of the confusion, erroneous opinions of the most pernicious tendency gain footing among mankind.

    Before the import of the word litigiousness comes to be considered, and thence the truth or propriety of the propositions in the expression of which it is included, it will be material to consider for what purpose, for the purpose of what sort of argument the evil tendency of litigiousness is brought to view. The purpose /object/ is to find a justification for all the arrangements by which vexation and expence are heaped up upon the parties indiscriminately, without any regard to the question which of them is in the right which in the wrong, or to the degree of wrong on either side: heaped upon them in stages anterior to that in which the cause is ---- for that decision by which /and yet before/ the merits and demerits of each side can be declared.