date

10 July 1804 Procedure & Evidence
10 July 1804

Procedure & Evidence

Evils causes

Intricacy

Confusion is the fruitful parent of all mischief /evil/: of honest error and prejudice in some minds: of fraud and self-conscious sophistry in others.

It is in the confusion produced by the general inattention to so important and whenever ---- /pointed out/ so seemingly obvious a distinction that we may discern /may be discerned/ the most plausible or rather the only plausible ---- or apology that /which/ the undiscriminating panegyrists and champions of the law /existing abuses/ can find to make for the general degree of uncertainty, delay, vexation and expence /dilatoriness, vexatiousness and expenciveness/ with which the system of procedure is so notoriously and justly chargeable. When the causes of complication - and thence of delay, vexation and expence are so abundant and so fruitful /prolific/ - with what degree of reason or justice can any /a/ man expect that a system of procedure should be a simple object that erroneous decision - decisions contrary to the merits should not every now and then take place - that the proceedings should in all cases be with /exhibit upon the face of them/ a degree of delay, vexation, and expence - such as to an ignorant eye, or to a superficial view can not but /will naturally enough/ appear unnecessary and indefensible.
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    Description: 14 August 1804

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    dilatoriness

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    By delay, separately considered the separate interest of the man of law is not served /promoted/ but rather disserved. The quantity of ------- extractable out of a given cause being given, the lawyer ---- ----- of time over which that ------- is about to be spread, the less is its present value.

    But it /delay/ is the property (as will be seen) of delay /is naturally pregnant/ to give birth to incidents: incidents many of which not all will either naturally be, or will have been ------, productive each of its expence to the suitor, each of its profit to the man of law.

    Moreover whatever state of things is productive of factitious and unnecessary delay, will in other ways be found productive of unnecessary and factitious expence, that part in the profit of which the lawyer will never be without his share. And é conversó no improvement (for the extension of ------- improvements is in so far true) could operate in removal of the factitious and unnecessary delay, that would not operate (operate of course and unless measures can be taken on purpose to prevent such its operation) in reduction of the aggregate mass of factitious and unnecessary expense, that part which included in the shape of profit goes into the pocket of the man of law.
  • Title: [10 July 1804 Procedure & Evidence]
    Description: 10 July 1804

    Procedure & Evidence

    Evils causes

    Intricacy

    This consideration /observation/ might operate in vindication of the uncertainty, dilatoriness, vexatiousness, and expenciveness of the English system /established systems/ of procedure, if in these systems the mass of those evils were in any tolerably exact proportion to the complexity of the suit, as produced by the above causes. But, look at the actual /established/ state of things, no such proportion nor anything like it will be discernible.

    The only appearance and that altogether a faint one that can be discovered of any thing like the observance of any such proposition, is what is /may be found/ discoverable in the law, confused and indeterminate as it is in so great a part of its extent, that masters[?] the bounds between the jurisdiction of the courts called Common Law Courts and the Courts called Courts of Equity. In the Courts of Equity the mode of proceeding is more dilatory than is in the Common Law Courts, and it is in these Equity Courts that causes are carried on of a nature more complex than any that are carried on in the Common Law Courts. In this observation, general and indeterminate as it is, is included everything that can be said in affirmance of a proposition between the intricacy of the system of procedure and the natural complexity of the cause.
  • Title: [10 May 1805[?] Evidence Introd.]
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    Evidence Introd.

    Introd

    Ch.5. Collateral Incidental

    '. Delay

    I. Exertions of illegal power, for the purpose of forcibly detaining Convicts within the Colony, or reconveying them into it, after the expiration of their terms.

    II. Exertions of illegal power, placing Convicts in a state of bondage within the Colony after the expiration of their terms.

    1. Liberty of departure, and freedom from bondage, both refused to a number of Convicts /expires/ at the same time, on the ground that no evidence of the terms they had had originally to serve /original commencement and length of their terms/ was to be found.

    2. Punishment inflicted on an expired Expence for attempting to quit[?] the Colony

    3. Married men though [...?] forbidden to leave the Colony otherwise than in case[?] of their finding security for the maintenance of their wives and families.

    4. Expiries[?] still kept in bondage. Faculty of choosing the place of labour - an indulgence.

    5. Measures taken for causing[?] expiries[?] who had repaired to [...?] to /[...?] found means to get to/ be forcibly sent back to New South Wales

    6. General liberty of departure announced at at time when [...?] for preventing it were [...?] from the things [...?] as [...?]

    7. Intention of a general detention of expiries[?] in general notwithstanding a declaration made at the very time announcing a liberty of departure to expiries[?] in general.

    Under the heads of vexation and expence, mention has been made of the ulterior evils of which those evils, of themselves sufficiently great, are so apt to be productive. Delay is prolific of vexation. delay is prolific of expence. By[?] a double title, though in a [...?] degree delay is therefore prolific of those same evils.