date

5 July 1804 Procedure & Evidence
5 July 1804

Procedure & Evidence

Evils

2d order

'.3. 3. vexation 1. to plff

 This after expence?

7th /7th on the list of/ independent evils of the (-----) first class the ------- evil of vexation. Viz: to the parties to the cause, and to the plaintiff or demandant. (a)

The immediate causes or elements or causes.

1. Natural causes labour of mind and loss of time by steps necessary to be taken independently /exclusively/ of ----- additions by the party in question preparatory to or for the purpose of laying before the judge the grounds of the demand or the defence the full ------ of the party, will be the services demanded at the hands of the judge.

1. Attendance at the seat of judicature - and the several subordinate offices.

2. On the professional advisors and assistants - in case of any need, real or supposed, for such advice and assistance.

3. On the persons whose service is needed in the character of witnesses, or persons having the custody of real or written evidence /----- evidence/.

4. Arrangements (if any) necessary to be taken for securing the justiciability of the adverse party.

5. Arrangements (if any) necessary to be taken for securing the forthcomingness of the evidence - in its several modifications, corresponding to the several sources from which it is capable of being extracted. +

6. Journies to and from the places at which the several lists of services, ----- to the above objects are to /require to/ be rendered or applied for.

7. -----ity of ----, by reflection on the natural uncertainty of the cause and of the suit, and on the choice of the arrangements to be taken for the rendering of it favourable.

(a) Note (a) Depending upon the unstable structure of language the distinction between the object itself, and its cause or the several parts of it and its causes, will not always be altogether clear, or worth much expence of words, to render so. Warning of the want of clearness will in general be sufficient to prevent any such confusion as could lead to practical inconvenience.

The difference is no wider than that between the ---ial cause and the efficient

+ Reference --- to evidence.
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  • Title: [5 July 1804 Procedure & Evidence]
    Description: 5 July 1804

    Procedure & Evidence

    Evils

    2d order

    8 or 2. Expence

    8th on the list of independent evils - the individual evil of expence.

    The immediate elements or causes -

    I. Natural causes

    1 to 5. The several attendances brought to view under the head of vexation, in so far as the demand for them arise out of the nature of the case /each individual case/.

    6. Journies viz: to and from the places at which the several sorts of services, conducive to the above objects, require to be rendered or applied for.

    7. Remuneration for professional advice and other assistance, so far as the demand for such assistance is created by the nature of the case, compared with the faculties, intellectual and corporeal, condition in life, and pecuniary circumstances of the party.

    8. Natural causes /length/ of delay. See delay. +

    9. Natural degree of intricacy -----. See intricacy. ||

    II. Factitious causes negative.

    1. Omission on the part of the legislator to apply to this species of correspondence the convenient means of /arrangements for/ correspondence in use for other purposes: for example, correspondence by the letter-post.

    2. Factitious length of delay as caused by negative factitious causes see Delay

    3. Factitious --- of intricacy, as caused by negative factitious causes of intricacy - see intricacy

    III. Factitious causes positive

    4. Factitious causes of delay, as caused by positive factitious causes of delay: see Delay

    5 Factitious degree of intricacy as caused by factitious causes of complexity or intricacy of procedure: see intricacy. (a)

    6. Taxes upon justice. taxes upon the several ---- that come to be taken, or written documents /instruments/ that come to be exhibited or recorded in the course of a cause.

    + ||  shew[?] law[?]

    (a) In the track of English procedure such is the intricacy in which it is involved not only must every man have a guide (the Attorney), but that guide must have other guides (the Advocates) and they a leader. Yet in /amidst/ the darkness visible through which they have to grope, and under that blindness which is the consequence of it, how often are they not seen falling, all together, into one ditch!
  • Title: [5 July 1804 Procedure & Evidence]
    Description: 5 July 1804

    Procedure & Evidence

    Evils

    2d order

    7 or 1. vexation 2. to defendant

     Vexation to the defendant

    I Natural causes

    1 to 7 The same as in a case of vexation to the demandant

    8. Arrangements necessary to be taken for the securing the justiciability of the defendant himself for example imprisonment for safe custody, obligation to find security, whether by ----ation of property, or by fide jussors[?] - friends wantonly[?] pledging their property for the performance of the engagement.

    II Factitious causes, negative, and positive

    The same as in the case of vexation to demandant.

    Intricacy

    In a current parallel to that of expence, vexation in other shapes. For - not to dwell on labour and loss of time - to what degree must not the pressure upon the mind of the traveller be enhanced, by the observation of the darkness in which the whole league of the road /in its whole length/ with the issue at the end of it, and his fate which hangs upon it /that issue/ is involved?

    This darkness will not fail to appear more and more gloomy, and his confidence in the result, weaker /fainter/ and weaker /more and more tottering/ /less and less steady/, the more intimate his acquaintance with this track, the more correct his view of it.
  • Title: [5 July 1804 Procedure & Evidence]
    Description: 5 July 1804

    Procedure & Evidence

    Evils

    2d order

    7 or 1. vexation the immediate causes

    III II /III/ Factitious causes 1. negative

    1. Factitious /negative/ causes of delay: which see

    1. Factitious /negative/ causes of the intricacy or any complication of the system of procedure.

    III. i.e. Factitious causes 2. positive.

    i. Positive causes of delay which see

    4 Labour of mind and loss of time (as above), as in the natural course of things would have been necessary to be taken but have been rendered so by appointment of positive law. The greater the number and variety of these steps, the greater the degree of complication /complexity/ or intricacy in the system of procedure. For the causes of complexity and thence of intricacy see further on -

    5. Anxiety of mind, by reflection on the uncertainty of the event of the cause, and in the ---- of the arrangements to be taken for the rendering it favourable - even in so far as that uncertainty, and the complexity of these arrangements, have received encrease from the operation of factitious causes.

    N.B. In proportion as professional advice and assistance is called in, the vexation in respect of labour of mind will frequently be diminished, but the evil of expence (of which further on) will constantly be encreased.