date

14 May 1805 Evidence Introd
14 May 1805

Evidence

Introd

Ch.9. Precipitation

Ch.9. Of Precipitation.

The word Delay can scarce present itself without presenting /bringing along with it/ the idea of precipitation. A sketch having for its object the bringing to view the evils incident to the system of procedure would be apt to seem imperfect if no such word as precipitation were to be found in it. Delay, unnecessary or preponderant delay - is an excess; precipitation is another /the opposite one/: if one excess is thus prolific /abundant/ in mischief, can the other be altogether barren of it /free from it/?

In the modes /operations/ of action /proceeding/ themselves there is certainly a very close analogy: the analogy of position and contrast in their respective effects, there is scarce any. Delay, besides its contingent, has, as hath just been seen its certain and immediate mischiefs: mischiefs essential to it, and inseparable from it. Precipitation has no such mischiefs. It may exist /have place/ without being productive of any mischief at all: and the mischief of it, when it is productive of mischief, that mischief is /will/ always referable, referable in toto, to one /some/ or other /more/ of the denominations of mischief already included in the list. This /Such/ /Hence/ is the reason why /It is for this reason/, at the same time that delay has here been stationed in that place to which it is so well entitled in /upon/ the list of the evils incident to procedure, no such word as precipation is to be found in it.
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  • Title: [14 May 1805 Evidence Introd]
    Description: 14 May 1805

    Evidence

    Introd

    Ch 9. Precipitation

    Compared with delay, its seeming antagonist /opposite/ /correlative/ precipitation, will be found altogether disparate and anomalous. Besides the effects, it agrees not with it so much as in respect of the persons chargeable as authors. Delay, unnecessary or preponderant delay, is at least as liable to be the act and fault of the party, as of the Judge. Precipitation, considered as a fault by /an act from/ which any person other than the agent is liable /exposed/ to suffer injury, can not be the act of any person but the Judge or his subordinates. By precipitation, if the conduct of either party is chargeable with it, it is the precipitate party himself that suffers by it, not his adversary, unless it be by the default /by the fault/ of the Judge.

    Precipitation then, supposing it to take place, is peculiarly /more particularly/ if not exclusively the fault of the Judge: and when it does take place, of what nature is the mischief caused by it? It is the mischief of misdecision - the ultimate collateral evil incident to procedure - in one or other of its three branches: administration of punishment where undue, collation of rights (thence imposition of corresponding obligations) where undue administration of satisfaction, (with its correspondent obligations) where undue.

    But, through the medium of precipitation may it not happen to the Judge to produce unnecessary or preponderant vexation? - Yes: - or expence? Yes: - yes - and even delay. But in each of these cases whatever may be the mischief produced, it is the mischief of vexation, the mischief of expence, or the mischief of delay: distinct from /over and above/ those mischiefs respectively, precipitation, is not productive of any sort of mischief.
  • Title: [April 1805 Evidence Ch. Ends]
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    Ch. Ends 3. Delay

    ' 3. Necessary

    It comes next to be shown why delay and precipitation are separated, as above, from the preceding heads of inconvenience, and placed in an inferior rank. It comes accordingly to be shown that in these heads of inconvenience, though different in name, no separate results are contained, distinct from those already exhibited in the form of inconveniences of the first order.

    In the penal branch one effect of delay so long as it lasts is the non-application of the punishment where due: thence the disfulfillment of the prediction - the prediction of the substantive branch of the law - by which, for the prevention of delinquency the application of the appointed lot of punishment in the event of delinquency has been announced. Delay of punishment is impunity while it lasts.

    So again in the non-penal branch; as well as in the penal, as far as satisfaction is concerned. Delay of justice is denial of justice while it lasts.

    But the whole process of procedure - in the penal branch or especially - is in its very nature a vexatious process. Vexation is the accompaniment and the result of every step that comes to be taken in the course of it. The different shapes in which the monster juridical vexation displays itself have just been brought to view. AS the delay extends itself, so does the vexation. Delay moreover breeds incidents: every portion of delay is pregnant with these evils: each incident brings on its group of vexations: each incident too breeds fresh delay, and each delay more incidents.

    [marginal note demand for expense] As it is with vexation in other shapes, so it is with vexation in its most prominent shape, expense. AS the delay extends itself so does the expense. Delay breeds incidents: each incident is pregnant with expense: each incident breeds fresh delay: and each fresh delay more expense.
  • Title: [10 May 1805[?] Evidence Introd.]
    Description: 10 May 1805[?]

    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.