date

28[?] April 1805 Evidence Introd
28[?] April 1805

Evidence

Introd

Ch. 10 Collateral

' Collateral [...?]

' Vexation from

Ch. Ultimate collateral ends /end/ of procedure - avoidance of vexation from misdecision to the prejudice of the defendant.

Besides the lots of vexation which, in greater or less number, and each with more or less weight, fall /have been seen falling/ upon every person /individual/ whom the institution /exhibition/ of a legal demand places in the condition of a defendant, there is one /one remains to be spoken of/ which consists /is constituted/ of the burthen which it is the ultimate and direct object of the demand to throw upon him the burthen of bearing the punishment sought by it to be imposed upon, administering the satisfaction or seeing it be[?] administered at his expence - or in a purely non-penal case, conferring or seeing conferred at his own expence the particular right which is the object /constitutes the subject and object/ of the demand.

In each case, suppose the burthen the obligation due - suppose it of the number of those by the imposition of which the arrangements and predictions of /delivered by/ substantive law in that behalf will be made to take effect, thus vexation at the end of the [...?] account is not to be placed to the account of great[?] evil or inconvenience: for, if /suppose/ it to be not outweighed by some good produced by that the same operation, the fault lies in the substantive law by which the burthen was imposed, not in the adjustive branch of the law, the perfection of which consists in giving effect and fulfilment to the utmost to the predictions /arrangements predictions and engagements/ contained in the substantive branch wherever they may be: provided always that the mass of incidental inconvenience produced by the adjuctive law - by the course of procedure be not so great as to preponderate over the good produced /attached/ to the fulfilment of the substantive.
Similar Items
  • Title: [29 April 1805 Evidence Introd]
    Description: 29 April 1805

    Evidence

    Introd

    Ch. 10 Collateral

    ' Vexation from ultimate decision

    But suppose (what in here and there an instance must happen, spite of all that the legislator can do to prevent it) - suppose that, at the end of the cause, and in consequence of the demand that gave birth /commencement/ to it, the burthen sought by it to be imposed, falls on a person in respect of /relation to/ whom it is not due: falls upon the defendant, whereas either there exists no person at all in respect of whom it is due, or if there be any such person or persons, the defendant is not of the number. In this case, the good aimed at by the article of substantive law not being accomplished, the vexation in /the production of/ which the suit terminates, is not preponderant: but either the whole or at least a portion /one/ of it is so small[?] evil, clear and [...?] /the vexation thus produced by the ultimate decision, when given in favour of the demand /demandant/: and consequently against the defendant/.

    To avert this evil will of course be among the objects to which the legislator will direct his aim. It is however not the principal aim: for, if /to accomplish/ such aim, if it be not to suffer any such demand ever to be exhibited: which is as much as to say, either to have no substantive laws at all, or what comes to the same thing, not in any instance to suffer the predictions delivered by them to be fulfilled - in a word not to suffer the laws ever to be executed.

    Ultimate collateral end of the System of procedure - avoiding to impose on /throw upon/ a person, in whose instance it would be undue[?], the burthen the imposition of which is sought /prayed/ for by the demand.

    Vexation produced by ultimate misdecision to the prejudiced of the defendant's side of the cause: imposition of an /ultimate/ obligation, where undue.

    Ultimate collateral end of the system of procedure - avoiding /preventing/ to impose obligations where undue - non-imposition of undue obligations when undue

    +  Decision - ultimate incidental before this
  • Title: [7 March 1807 Judicial Justice]
    Description: 7 March 1807

    Judicial Justice

    Letter V

    I. Shapes

    I. First as to the shapes in which injustice, considered as resulting from the conduct of a Judge, is liable to manifest itself. These may be considered as corresponding to the several ends of justice, so often spoken of. So many of those ends, so many primary dictates of justice. On the part of any Judge or Court of Justice an act of injustice will be an act operating or tending to operate in repugnancy to some one or other or every one of those ends.

    1. Direct or positive end of justice - effect given to the arrangements made by the substantive branch by the law: support and effect given to the rights created and conferred by it: enforcement given to the obligations imposed by it, in correspondence with those rights: fulfilment given to the predictions delivered by it, and engagements taken by it, in correspondence with those rights and obligations.

    Modifications of judicial injustice or judiciature corresponding to this direct end of justice - 1. Misdecision; to the prejudice of the Plaintiff's side: 2. Denial of justice. The relation in the way of coincidence and distinction between these objects will be presently brought to view.

    2. Collateral ultimate or negative end of justice - avoiding to give birth to that sort of vexation which takes place, where in the endeavour real or pretended, to give fulfilment to some article of substantive law in favour of the plaintiff, by giving effect to some right demanded by him as his due, but really not his due, the correspondent obligation is imposed upon his adversary the defendant.

    Modification of injustice in judicature corresponding to this collateral ultimate end of justice, misdecision to the prejudice of the Defendant's side.

    3. Collateral incidental end or ends of justice - (likewise of the negative cast) avoiding to give birth to superabundant collateral inconvenience in its several distinguishable but intimately connected shapes - delay, vexation and expence.

    Modification or modifications of injustice in judicature, corresponding to this collateral incidental end of justice, production of superabundant delay, vexation or expence.
  • Title: [23 April 1805 Evidence Ends]
    Description: 23 April 1805

    Evidence

    Ends

    Ch Conflict

    '.1 Conflict

     Alter from the marginal contents

    But though for the purpose of preventing /in every case/ the existence of delay vexation and expence incident to litigation in every case, the determination to take away in every case all recourse to justice /the judicial power/ would be thus absurd and ruinous, yet the opposite determination directly opposite viz: to carry on the recourse of justice - to bring about in every individual case and in every individual part, the fulfilment of the several articles of the substantive branch of the law without any regard to the quantum of collateral inconvenience, in the shape of delay, vexation and expence, would not be much less so. The mischief attached to the non-fulfilment of the arrangements taken and predictions delivered by the substantive branch of the law is variable upon a scale at both ends little short of infinite - is susceptible of an almost infinite number of degrees: the mischief liable to be produced by juridical delay vexation and expence is also variable upon a scale of prodigious /vast/ extent, though not quite so nearly approaching to infinity as in the former /preceding/ case. Under these circumstances it must every now and then happen[?] that in this or that individual case, the mischief resulting from the aggregate mass of collateral inconvenience, or even from a single one of its three /those its/ branches will be superior, and that beyond dispute to the good resulting from the pursuit of the main end - to the mischief resulting from /attached to/ the abandonment of it.