date

12 April 1803 Evidence Ends
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

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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]
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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: [12 April 1803[?] Evidence Ends]
    Description: 12 April 1803[?]

    Evidence

    Ends.

    Ch.

    ' Precipitation

    From the view thus taken of the several classes of lights or grounds of decision, which it may be the effect of an act of precipitation to exclude, as will soon be manifest enough, it is evident how far this head of inconvenience is from being in respect of its effects, what at first glance it might be thought to be, the exact counterpart and opposite of unnecessary delay. By unnecessary delay, the three negative inconveniences of the first order - non-application of punishment where due, non-application of satisfaction where due and non-collation of rights where due are produced to a certainty, and continued while it lasts: but in virtue of the operation of the same cause a chance more or less considerable of the ultimate and perpetual existence of these same inconveniences is moreover produced according to the nature of the case, penal or non-penal. Is produced: and not only of those negative inconveniences of which the plaintiff in the cause is the victim but of their respectively opposite positive ones - application of punishment where not due - application of satisfaction where not due (and thence of the burthen attached to the obligation of administering it) and collation of rights where not due (thence imposition of the mass of burthensome obligations by the imposition of which those rights are conferred.) The burthen of which falls upon the defendant.

    To precipitation of the other hand, stands attached, it is true, a chance more or less considerable of the existence of all those several /six/ inconveniences of the first order in the several cases to which they apply, and to the prejudice of the cause of the plaintiff or that of the defendant, as it may happen. A chance, yes: but it has not in any case any one of those inconveniences for its certain consequence.

    A Judge gives at the very first moment, at the very first word spoken or exhibited to him, the very same decision which he would have given, had he given the fairest and fullest hearing to both parties: at the end of all such steps as either party thought fit to take.

    The case is everywhere a conceivable one, and being the most simple one, is conceivable indeed, well more