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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.
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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
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Title: [April 1805 Evidence Ch. Ends]Description: April 1805 Evidence Ch. Ends 3. Delay ' 3. Necessary It comes next to be shown why delay and precipitation are separated, as above, from the preceding heads of inconvenience, and placed in an inferior rank. It comes accordingly to be shown that in these heads of inconvenience, though different in name, no separate results are contained, distinct from those already exhibited in the form of inconveniences of the first order. In the penal branch one effect of delay so long as it lasts is the non-application of the punishment where due: thence the disfulfillment of the prediction - the prediction of the substantive branch of the law - by which, for the prevention of delinquency the application of the appointed lot of punishment in the event of delinquency has been announced. Delay of punishment is impunity while it lasts. So again in the non-penal branch; as well as in the penal, as far as satisfaction is concerned. Delay of justice is denial of justice while it lasts. But the whole process of procedure - in the penal branch or especially - is in its very nature a vexatious process. Vexation is the accompaniment and the result of every step that comes to be taken in the course of it. The different shapes in which the monster juridical vexation displays itself have just been brought to view. AS the delay extends itself, so does the vexation. Delay moreover breeds incidents: every portion of delay is pregnant with these evils: each incident brings on its group of vexations: each incident too breeds fresh delay, and each delay more incidents. [marginal note demand for expense] As it is with vexation in other shapes, so it is with vexation in its most prominent shape, expense. AS the delay extends itself so does the expense. Delay breeds incidents: each incident is pregnant with expense: each incident breeds fresh delay: and each fresh delay more expense.
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Title: [15 Apr. 1803 Evidence 8]Description: 15 Apr. 1803 Evidence 8 Ends Ends in general In this word properties we may observe /may be observed/ another heading term which has been employed with advantage in the character of a basis of arrangement especially in any work on which speculation has pratice for its end /the theory has a practical object in view/. A system of procedure being to be established, required the properties of which it is desirable it should be possessed: the properties, concerning which it is desirable that they should be found in it. The properties /property/ desirable in a system of procedure is that it be rendered conducive to the abovementioned objects or ends:- that it have the effect of warding off /preserving the community[?]/ - or[?] as far as the nature of things admitts - from the several abovementioned inconveniences /heads of inconvenience/. Corresponding to those ends the heads /species/ of inconvenience the avoidance of which constitutes respectievly so many distinct and subordinate objects or ends. Another vocabulary, in which the positive form /phases[?]/ prdominates, may be more acceptable to some conceptions. Ends of a sustem of Procedure, six. Properties of a good system of procedure - Properties desirable in a system of Procedure, subserviency to those respective ends. 1. Rectitude of decision. Under this article are comprehended the six inconveniences of the first order: rectitude of decision consists in the avoidance of those several inconveniences - according to the nature of the cause - whether penal or non-penal - and according to the side of the cause contemplated - whether the plaintiffs or the defendants. 2. Unvexatiousness - avoidance of the inconvenience of unnecessary vexation. 3. Cheapness - avoidance of the inconvenience of unnecessary expence. 4. Promptitude - avoidance of the inconvenience of unnecessary delay. 5. Maturity - avoidance of the inconvenience of satisfaction. 6. Simplicity - avoidance of the inconvenience of unnecessary intricacy.
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