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.