27 May 1805

Evidence

Introd.

ch. Evils causes - non demand

(1

Considering litigation as an evil, wherein does the evil consist? Indubitably, either in judicial vexation, judicial expence, or in both together.

But how But in what case is there anything in it of pure evil? Where being necessary to the fulfilment of the more important ends it is not /the evil if/ in quantity and proportion /-- ----/ preponderant over the good consisting in the fulfilment of those ends? No certainly.

When upon the whole it is an evil, it is so no otherwise than because and where the vexation of which it consists (the expence included) as either necessary or preponderant.

Under this limitation and not otherwise it becomes the legislator to use his endeavours to suppress it altogether. But in all cases it is also the duty of the legislator to use employ/ his endeavours to reduce the quantum of it to its minimum: to the least quantity to which it can be reduced, consistently with the regard due to the other ends of justice.

To use /employ/ his endeavours to this end, is to apply /employ/ such arrangements as promise to be effectual in the character of remedies: but to know /determine/ what are the proper remedies to the mischief a preliminary step is to ---- what are its real causes. The causes are

1. On the part of the law the uncertainty of the law. By this circumstance litigants of both descriptions blameable and unblamable, are engaged as will be seen in the branch of vexatious litigation /procedure/. Remedy giving to the law the utmost degree of certainty of which it is susceptible.

2. On the part of either party, mala fides, or the party grounding his hopes of success on false or fallacious evidence, the falsehood or fallaciousness of which he is himself ------ed. Remedies the several remedies proper to be applied by the law against unforthcomingness and fallaciousness on the part of the evidence.

3. On the part of either party, mala fides, the party grounding his hopes of success on the detaining or -------ing by means of vexation and expense the adverse party from commencing or continuing his demand or defence. Remedies 1. negative, forbearing altogether to make any ---- addition to the naturally necessary quantity either of vexation or expence: 2. Arrangements for defraying the naturally necessary expence, in favour of such suitors (including would-be) suitors as possess not the means of defraying it for themselves.