date

16 July 1804 Procedure & Evidence
16 July 1804

Procedure & Evidence

Evils causes

ch 5th Order

' 1. Intricacy

II and III. Factitious causes, negative and positive

I. Causes productive of complication properly so called /---- taken/.

1. Arrangements /Act/ requiring steps and operations (including the exhibition of written instruments) naturally useless: especially if /when/, as --- --- commencing the case the obligation of employing /taking/ these has been sanctioned by /had for its sanction the/ pain of nullity. See above

2. Arrangements operating as factitious causes of delay in so far as delay is become naturally or factitiously a source of fresh incidents, producing a demand natural or factitious for fresh operations. See the next table - delay.

II. Causes productive of intricacy, without any necessary or adequate proportionable addition to complication.

1. Language unintelligible ambiguous or obscure.

2. Language distorted: - composed of distorted phrases - phrases of distorted import. (a) +

3. Language fictitious: language rendered unintelligible, ambiguous, obscure, or even delusive and fallacious, by being polluted with mendacity, flowing from authority, and thence employed by lawyers of all classes and all ranks with indifference, or rather with complacency, under the name of fiction. ||

4. Language obsolete: and thence unintelligible, ambiguous obscure or even fallacious. Ex gr. old mode of /note/ computing days by saints days. #

5. Language uncharacteristic and unexpressive. {} Subpoena for a summons to a witness. Distorted language presents and false conception: uncharacteristic, as to the point in question, none at all.

+ See Table (a) note (a) and note (b)

|| See Table

[] Note Uttering as true a supposed fact which is known by the utterer not to be true.

# See Table

{} See Table
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    Description: 17 July 1804

    Procedure & Evidence

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    ch 5th Order

    ' 1. Intricacy

    6. Form of expression for general regulations jurisprudential, instead of statutory: - a system /heap/ of conjectures and /inferences and/ imaginations in each case concerning the import of this or that imaginary general rule of action, never delivered in that character by any competent legislative authority, nor to be found in any authoritative instrument ---ned to any assignable or /and/ determinate form /assemblage/ of words: hence, an immeasurable mass of words, consisting of argumentation heaped upon argumentation, without end.

    7. Jurisdictions entangled: a multiplicity of tribunals: each pursuing a different mode of procedure in relation to the same demand: the boundaries between the authority of one and the authority of another being on this account liable to be indeterminate, as being described by metaphysical /logical/ and purely ideal laws, instead of material and topographical ones.

    8. Arrangements necessitating differences in the mode of procedure in different courts, though the demand respectively pursued in them is the same.

    Note (a)

    (a) This sixth cause may be considered as being in /of/ itself in a great measure the cause of the 5 preceding ones: - viz. language rendered unintelligible, ambiguous or obscure in a variety of ways: by being distorted, factitious, obsolete and /or/ uncharacteristic.
  • Title: [9 July 1804 Procedure & Evidence]
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    ' 1. Intricacy

    2. Intricacy. Complexity - complication - intricacy

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    The connection between complication and intricacy - complication, whether the substantive branch of the law or the adjective be the branch in which the evil is considered as manifesting it self, is extremely intimate. The two ideas do not however exactly coincide nor therefore are the terms in every case incontrovertible. Intricacy is we see the effect; complication a cause of that effect. But though the principal it is not the only cause. Complication so much of it as is the result of natural causes, is a cause, and as it should seem the only natural cause of intricacy. But intricacy, besides the factitious causes of complication has various other factitious causes. (a) Note. On this, as on so many other subjects, there is no operating without a metaphor. The system of course of procedure is considered as a road - Of this road the fulfilment of the predictions delivered in each case by the substantive branch of the law is the end or termination; intricacy is a quality /an undesirable quality or property/, of which this, like other roads, is susceptible. The more complex the case is, the longer the road may be said to be, and in that respect the more intricate: the longer the road the greater the distance between the point at which it commences, and the point at which it terminates: the greater consequently the number of steps that will require to be taken, as well as the number of minutes that will require to be occupied /expended/ /consumed/ in travelling over that length of space /distance/.
  • Title: [12 June 1807 12 19 Letter V]
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    III. Expence: IV Vexation:- contrivances employed by Judge and C o for the promotion of these evils, in the character of instruments applicable to the promotion of wrongs and litigation.

    In the system of procedure, factitious expence and factitious vexation are the natural concomitants or immediate results of factitious complication. But between factitious complication and factitious delay the connection is so intimate, that it is seldom that either can be produced without promoting at least, if not producing, the existence of the other. In the list of causes of factitious delay may therefore be seen a list, if not altogether, at least nearly, as simple, of the causes of factitious complication, vexation and expence. Concerning the nature of the connection between delay and complication see Table I. Explanatory Notes.