date

15 May 1805 Evidence Introd
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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  • 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: [14 May 1805 Evidence Introd]
    Description: 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.
  • Title: [12 April 1805 Evidence Ends]
    Description: 12 April 1805

    Evidence

    Ends

    Precipitation

    But if notwithstanding the precipitation the decision is the same as it would have been without any precipitation, and the decision that would have been given had there been no precipitation, would have been the right one - was on the right side - on this supposition no inconvenience at all of the first order would have been produced by it.

    So much as to the inconveniences of the first order. AS to the inconveniences of the second order vexation and expense, no inconvenience of either kind supporting are produced of the first order, can it be in the power of precipitation to produce. On the contrary the effect of the precipitation will be to make a defalcation from the amount of both of these inconveniences a defalcation the magnitude of which will be in the direct proportion of the enormity of the precipitation, considered in the light of an abuse.

    Note: To exhibit a comparative view of the relative magnitude of the two contrasted inconveniences thus placed in the same order, is meet not to the present purpose. On the present occasion the sole business is merely to exhibit, each in its proper colours, the relation borne by each of these two inconveniences of the third order to the inconveniences of the first and second orders. Of precipitation, the mischief sill be found to exist chiefly of alarm: once recognised by the public or even suspected precipitation cannot but be apprehended, (and by the whole tribe of suitors,) as a perpetually impending cause of undue decision in all its shapes and injustice. The Parties affected are not so much the individual suitors in the individual cause in the course of which the precipitation manifests itself, as the whole species of suitors: that is all the members of the community taken together, in the character of individuals liable to become suitors.