JB_047_065.xml

Title: [18 June 1805 Evidence Introd]

Description: 18 June 1805

Evidence

Introd

Ch. Regular [...?]

Diverse classes of professional hands whose work /functions/ are useless in toto to the purposes of justice.

In a Court of Summonary Procedure, neither of those instruments of the Daemon of Chicanery the Special Pleader and the Equity Draftsman have /can ever find/ any place.

Whatever is done by either of them belongs in toto to the account of made business more /completely unnecessary, much more/ than useless business.

In the Circle called Court of Common Law, the Special Pleader that is a pair of Special Pleaders on on each side, bring out allegation upon allegation, altogether without one, without any search for veracity on either side, and under the constant incitement of an interest more or less [...?] in permitting mendacity, on whichever party is in the wrong; and though neither party should have any impulse /temptation/ /interest/ or desire to inflict needless vexation expense and delay upon his adversary, then their aptitude are sure in every cause /can not in any cause fail/ to have an interest in keeping these affections of the highest possible degree of morality[?] upon both.

In the courts called Courts of Equity the /under the system of/ Draftsmen, with their Bills and Cross-Bills their Answers and Cross Answers, the check upon mendacity is not, as in the other case, altogether wanting as in the other case, but the mass of vexation expense and delay is in an enormous degree even[?] /a great degree still more/ oppressive.

Special Pleading consists in reciprocal allegation without enquiry or the possibility of enquiry on either side. Equity Drawing consists in enquiry but in enquiry in the form of which neither truth nor despatch, but vexation expense and delay, for the sake of professional profit, have been the manifest object in view: and much is the delay, that after a series of enquiries still longer than the entire duration of a suit at Common Law, whatever truth on both sides requires on this mode of proceeding two suits, each longer than a [...?] [...?] Common Law: and at the end of this double enquiry it is only from those two individuals, the parties, that whatever truth is there extracted is obtained: this remnant the remuneration if extraneous[?] witnesses which in Equity if performed at all is performed in a different, and by far less mistakes made.

049-065.xml

Title: [21 July 1805 Evidence Introd]

Description: 21 July 1805

Evidence

Introd. Jurisprudent

Equity Jurisdiction

In the Courts of Common Law the business of procedure is carried on upon one plan. In the Courts of Equity the business of procedure is carried on upon another plan as different from the other as any that can be conceived. Two plans here different for the accomplishment of the same object may be both wrong; and if to run counter to every end of justice is to be wrong are both wrong, but they can not both be right.

Not only did they travel /wish/ in use the execution of the same work /sort of business/ upon discordant and repugnant principles, but among the occupations of one of these sort of Courts is that of stopping and undoing the work of another /the other/. [When Penelope unravelled by night the web she had been compelled to weave by day, it was for the declared proposed purpose of impeding the work and not of forwarding it.] It To do this and that and other is contrary to equity and good conscience. So says /saeth/ the suitor in Equity to the Court of Equity. It is so it is indeed contrary to equity and good conscience, says the Court to the Plff in effect, as often as upon the ground /strength of the [...?]/ then made by the Plff it acceeds to his demand. Contrary to equity and good conscious? to do what? To do that very thing which the Courts of Common Law are constantly employed /occupied/ in doing, because the not doing it would be contrary to justice.

My property /land is withholden/ is taken from me. I apply for redress to the only Court /Court which in this case in question prefers to give in [...?]/ to which I can apply for it, a court of common law. When the Common Law storehouse of factitious expense, vexation and delay has been exhausted, and the time is come when it is no longer possible for the Common Law Court to forbear rendering a justice, I am dragged into a court of Equity, in which the process of factitious expense, vexation and delay recommences with improvements: to a Court of Equity, in /by/ which my demand is decided upon on principles disregarded by the Court of Common Law; the facts being also decided upon by evidence not there admissible and obtained by a mode of enquiry altogether different.

049-061.xml

Title: [18 July 1805 Evidence Note]

Description: 18 July 1805

Evidence

Note?

Introd. Jurisprudential

Ch. II Vices

'' Ex post facto

Equity Jurisdiction

As to the bounds as between Equity and Common Law of the four magical words, three of which from Lord Coke, Fraud in Lord Coke's time [...?], Trust In Lo Coke's time confidence, and accident, it seems now pretty generally understood but they afford no light at all. As to selecting /indicating/ bounds, where none exist none can be indicated. But as to lights, there are two other words which had they been thought of would have thrown rather more light on the subject than any on of the above four cabbalistic ones. These are - complex causes or in one word complexity, and Jury. Complex causes are peculiarly suitable to the mode of procedure persued in a Court of Equity in contradistinction to a Court of Common Law: and the more so the more complex. why in contra-distinction to a court of Common Law? because except a expected in a few particular cases, a Court of Common Law can give no ultimate decisions without a Jury: and /of a cause which/ when a cause has swelled to a certain degree of complexity, that a Jury should take any rational cognizance of it if they matter physically impossible.

Why again is it that a Court of Equity is so continually and in some instances so exclusively well adapted /adapted/ to the taking cognizance of the complex causes? Because, the mode of its procedure how bad soever in other respects is such as enables it to take cognizance of the most complex causes. For the different modes of complexity, are ways in which a cause may become complex see the Table of Complexity or Complex Causes.

To the time which a /set of men acting in the capacity of a Jury are/ Jury is capable of employing about a cause there are limits and these comparatively narrow: to he time which a single Judge, or set of men acting together in the character of professional Judges, are capable of employing about a Cause, there are no such limits. When a cause is in the way of Common Law tried before a Jury the /[...?]/ best evidence, viz: that of the defendant, (and no matter if the only evidence) is carefully excluded. When a cause is tried /carried in/ in a Court of Equity, that same evidence, though not suffered to be extracted in any other than a bad mode, is extracted early in the suit, and is the first that is extracted.