date

10 July 1804 Procedure & Evidence
10 July 1804

Procedure & Evidence

Evils causes

ch Intricacy

In proportion, generally speaking, to the intricacy of the cause /suit/, as constituted by these several causes of complication, one or more of these, will be the danger of wrongful decision to the prejudice of the one side or the other, and the probable degree of delay, and thence of vexation and expense.

The conclusion however would be as /alike/ erroneous as /---/ it would be deplorable /disheartening/, if from a view of all those possible and non continually operating causes of complication, compared with the small number of sorts of cases exhibiting the maximum of simplicity any such inference were to be drawn as that the number of complex cases individually taken, were in anything like that proportion to the number of most simple cases, individually taken. So far from this supposed state of things is the truth, that if /were/ /upon/ a correct account of such actually constituted it would appear - that the aggregate number of complex causes, in a year of all degrees of complexity taken together bears but a small ratio to the number of most simple causes instituted in the same term.
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  • Title: [10 July 1804 Procedure & Evidence]
    Description: 10 July 1804

    Procedure & Evidence

    Evils causes

    Intricacy

    On the other hand, as the ----- becomes more and more particular /as we descend to particulars/, the proofs in ------ of any /all/ such proposition will be more and more conspicuous and abundant.

    1. In the first place in both sorts of Courts the mode of procedure is exactly the same in the most simple cases of which they have cognizance respectively as in the most complex cases. Therefore in neither is the natural complexity of the case the cause of the complexity of the mode of procedure.

    2. In the Common Law courts the arrangements out of which the frequency of wrongful decision (decision in favour of the party in the wrong, on points foreign to the merits) and the super abundance of delay, vexation and expence arise, are arrangements which have nothing with the nature of the cause in respect of simplicity or complexity. They apply alike to the most simple and the most complex. (a) And taken ----- in the mass are as is by far the greater part of that mass alike superfluous and in every one of those respects pernicious in both instances.

    (a) Except only those suits in which the cause of complexity is the unforthcomingness of the defendant. In this case, it is obvious that arrangements must be applied and brought into use that have no application where the person on whom the demand is made is forthcoming, and appears in the character of defendant in the suit.
  • Title: [9 July 1804 Procedure & Evidence]
    Description: 9 July 1804

    Procedure & Evidence

    Note Evils causes

    Ch. 5th Order

    ' 1. Intricacy

    2. Intricacy. Complexity - complication - intricacy

    I. Natural causes

    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: [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.