date

17 July 1804 Procedure & Evidence
17 July 1804

Procedure & Evidence

Evils causes

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.
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  • Title: [16 July 1804 Procedure & Evidence]
    Description: 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
  • Title: [8 Aug. 1815 Jug True or Jug Util Sub]
    Description: 8 Aug. 1815

    Jug True or Jug Util Sub Rev or Church

    History?

    Moduus tractandi

    (5) (3)

    By the operation of these causes it is—by these artifices and coupled [with] the illusion of which they have been productive—or by these illusions coupled with the artifices of which they have been productive—by these causes it is that of every incident—of every event—of every state of things which these histories or any part of any of them offer to view the idea traced in the mind is traced in so distorted a shape—in such false colours—that, instead of a portion of the surface of this our earth distinguished from our own by no other difference than those topographical ones which are produced by difference of longitude, latitude, elevation of surface, temperature and geological formation, inhabited at the time in question by rational beings of the same shape, structure and constitution, outward and inward bodily and mental[ly] as ourselves, the land of Judea with its appurtenances, ennobled and spiritualized for this purpose by the state and title of The Holy Land is presented thence forward to the infant mind and thence forward to the same mind in all its stages under the appearances of a province of Faery Land. At this present time, by no other differences than those produced by the topographical circumstances above mentioned added to the moral differences of government manners and education are the inhabitants of this province of Faery Land distinguished in our eyes from our fellowcountrymen any more than the inhabitants of any other part of the earth’s surface. Take this same territory and of the time occupied by the population of it take a portion of the quantity of a century or thereabouts situate at the distance of about such centuries from the tract of time occupied by ourselves, for the whole of this portion of time, the population of this country which since that time has had except as above nothing to distinguish it from the population of our own or any other country, becomes distorted in every feature: the picture of it is to any serious picture drawn of any part of the population of our own country stationed in our own time, what a caricature-sketch of the members of a Board a Council or a House of Parliament is to a serious picture exhibiting the portraits of the same distinguished individuals.

    2.

    Familiar incident not supposed to be familiarly expressed.
  • Title: [2 Jan y 1808 Jurisdiction Table Table]
    Description: 2 Jan y 1808

    Jurisdiction Table Table VII

    Uses[?]

    VI. Divisions of the field of jurisdiction grounded on the metaphysical or say logical, as contradistinguished from the topographical, principle of demarcation - third use?

    This type, though not coming under the head of Appeals, is brought to view by the Table: exhibiting, as it does, the different scales of jurisdiction, that have place in the different divisions there marked out.

    Inconveniences of this diversity are 1. complication; with its attendant evils, viz. uncertainty, and uncognoscibility on the part of the law: litigation, with its vexation and expence, the result of the undetermined[?] situation of the lines of demarcation supposed to be drawn between division and division.

    Few of these divisions have at present any use. Those in which the advantage bids fairest for preponderating at present over the inconvenience seem to be the jurisdictions of the Spiritual lords, the Admiralty[?] Court, and the Privy Council: in the two latter instances, in respect of the necessity which the Executive power may occasionally be under, of consating[?] the temper of foreign powers or of the inhabitants of distant dependencies.

    In some instances, the demarcation never had from the beginning any rational, nor any other than an historical cause: in others, where at

    one time a rational cause existed, it has long ceased to exist.

    English division into Common Law jurisdiction and Equity jurisdiction, a division not founded on nature, not produced by any rational cause, and peculiar to English jurisprudence. The historical cause was the [...?] of the original scheme of English judicature; an imperfection which rendered it necessary to call in the Roman law: English Judges, from stupidity and disregard to the ends of justice, being central[?] to render themselves instruments in the hand of a wrongdoer, as well as to permitt the most grievous wrongs to remain without a remedy. The distinction purely arbitrary: Equity causes being such and such only, to which the Roman mode of procedure happens to have been applied. Extend the application of this mode[?], you extend Equity: narrow it, you narrow Equity: abolish it, you abolish Equity