date

14 May 1805 Evidence Introd
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.
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  • Title: [15 May 1805 Evidence Introd]
    Description: 15 May 1805

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    Ch 9. Precipitation

    Be it even on the side of the Plaintiff, that the evidence thus excluded would have operated. By the supposition the plaintiff, notwithstanding the exclusion received the full benefit of his demand. one evil /mischief/ may notwithstanding lurk behind the decision, and besides the mischief of the second order above mentioned, even a mischief of the 1 st[?] order, and that to the prejudice of the plaintiff's side. At the hands of the Judge in question, by the /in virtue of/ the ultimate decision he has pronounced the plaintiff has received the full benefit of his demand. True: but, when the grounds of the decision come to be examined by a Court above, such is the consequence of the exclusion, they will be /are/ found insufficient, and the decision, the precipitate decision /decision treated with precipitation/ will of course /will or may/ whatsoever may be the ultimate termination of the cases, be set aside. If such precipitation were to pass uncensured, a dishonest judge might thus in an insidious way, produce real /undue/ prejudice, in the way either of expence and delay, or in the way of ultimate injustice to the side towards which in appearance he was showing undue favour /in appearance/.

    At the end of the account, will not precipitation then be an evil? Yes, certainly: because every thing to which it may happen to be a cause of evil, may in so far be considered as being itself an evil. In the pedigree of evil: in which the filtration[?] is traced up from cause to cause it may /will therefore/ be intitled to a /its/ place. It may even happen to it as hath just been shewn, to be a cause even of delay, unnecessary delay: but on this very account its place, it may be seen is not in the same degree, the same generation, the same law[?] as that of its opposite: it ranks not in /its place is - not in/ the same law[?] /branch/ with vexation, expence, or delay, any more than with punishment, disparation[?] of right or satisfaction when undue, but as /in that of/ a cause, a contingent cause of all or any of those evils.
  • Title: [14 May 1805 Evidence Introd]
    Description: 14 May 1805

    Evidence

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    Ch.9. Precipitation

    Without having been productive of mischief in any of those shapes, it may still happen to the conduct of the Judge to be chargeable with precipitation and justly chargeable. The plaintiff (suppose) is altogether /compleatly/ in the right: demanding at the charge of the defendant, in quality as in quantity, no other punishment, no other right, no other satisfaction, by the tenor[?] and spirit of the substantive law, than what, is due. by the supposition therefore no evil produced opposite to the direct end of justice, in any one of its three branches.

    But though by the supposition, at the charge of either of the parties to the cause no mischief has been done, it follows not but that on the part of the precipitate Judge, there may be just and very serious cause of censure. - Why? because by the supposition his conduct is such, as affords serious cause of apprehension of mischief - an indefinite train /mass/ of mischief, on the occasion of succeeding suits[?]. Mischief of the first order, none: but of mischief of the 2 d order, danger and alarm, the precipitation may have produced a very momentous mass.

    The case is a penal one /Suppose a penal case./ A witness has been excluded altogether: another witness has been cut short in his evidence. On which side was the evidence thus precipitately dealt with? On the side of the Defendant? to the defendant no injury ensues, for by the supposition he was guilty and had incurred the exact punishment to which he is consigned /subjected/ by the ultimate sentence. But, by the same rashness /turn of mind/ by which a guilty defendant has in this individual instance been subjected to due punishment, in the next instance that presents itself come innocent defendant may be subjected to exactly the same punishment, though in his instance it be undue.
  • Title: [24 June 1804 Procedure Ends]
    Description: 24 June 1804

    Procedure

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    '.6. Expression uniform

    Compleated by the above process, the evils and /or/ inconveniences corresponding respectively to the list of particular several ends, will stand thus

    1. Non-application of punishment where due Synonym [...?]

    2. Non-Collation of rights where due

    3. Non-reddition of satisfaction where due

    4. Application of punishment, where not due

    5. Collation of rights where not due: thence imposition of the correspondent burthensome obligations

    6. Addition of satisfaction where not due: thence [...?] imposition of the corresponding burthensome obligations

    7. Production of unnecessary vexation

    8 - Expence

    9. - Delay

    10. - Precipitation

    11 - Intricacy

    12.- Mendacity and untrustworthiness in other shapes on the part of the evidence.

    And to these twelve distinguishable evils correspond so many equally distinguishable ends, consisting sverally in the avoidance if these respective evils.

    In the existing state of the language - of the English language at least, (a) the three main evils have /possess/ an expression belonging /applicable/ to them in common - viz: failure of justice. To The three corresponding collateral evils belongs no such equally appropriate expression - No one of them, indeed /perhaps //it is true// but may understood to receive without impropriety the appellation of injustice: but this appellation is not more /if applicable to them at all, is not/ strictly applicable to them, that is is to the three main evils comprehendible as above under the appellation /denomination/ of failure of justice.

    Note (a)

    (a) In /By/ the expression of failure of justice the effect alone is indicated /brought to view/, without any reference made to any person whose act is considered as the cause. In French books, we hear not so frequently of failure of justice, dedaut[?] or manquemont[?] de justice as of denial of justice - deni de justice: a phrase by which the Judge is pointed to, as the person whose act is the sole immediate cause of the obnoxious effect. But in English pprocedure failure of justice, it will be seen, for an instance in which failure of justice is the fault of the Judge as such, it is in some dozen score or hundreds of instances the fault of the legislator: the possibility of so much as applying for justice under the head of expence, not to speak of vexation and delay imposed upon it, a state of things comparatively rare.