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14 May 1805
Evidence
Introd
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.
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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.
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Title: [12 April 1803 Evidence Ends]Description: 12 April 1803 Evidence Ends Ch. ' Precipitation Suppose the precipitation to exist in the highest degree possible. Suppose a decision meant to be an ultimate one given by a Judge at the very commencement of the cause - no proof received: no argument heard: decision given in favour of the plaintiff or in favour of the defendant, at the first word. Note If in favour of the plaintiff in the penal branch it will be punishment administered, or satisfaction administered, or both according to the nature of the offence; if in the non-penal branch, the demanded right conferred: if in favour of the defendant, in the penal branch the defendant will have been declared (not guilty consequently) not subjectable to the punishment required not bound to afford the satisfaction demanded; if in the non-penal branch not subjectable to the obligation necessary to the collation of the demanded right. The decision thus given at the very commencement of the cause - thus given by precipitation, and for want of the allowance of the portion of time requisite for the affording room for reception of the requisite evidence, arguments, and steps - may be no other than the very decision which would have been given had the utmost portion of time been allowed that the nature of the cause required - had there been no precipitation in the case. Such might have been the result: and abstraction made of the particular nature of the cause, it is just as probable as the other. The cause, supposing it a simple one, has but two sides that of the plaintiff and that of the defendant; the right side and the wrong one. If the decision be determined by cross[?] and file, the chances are as many in favour of his deciding in favour of the same side in consequence of the precipitation as that in which he would have decided without any precipitation, as there are in favour of his deciding on the different side.
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Title: [15 May 1805 Evidence Introd]Description: 15 May 1805 Evidence Introd 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.
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