date

10 July 1804 Procedure & Evidence
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.
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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: [10 July 1804 Procedure & Evidence]
    Description: 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.
  • 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.