date

19 May 1805 Evidence Introd
19 May 1805

Evidence

Introd

Ch. False Ends. 1 Judge

' 3. re-Opposition Mode

''.3. Opposition of that corrupt interest to the several ends of justice.

In the virtue and efficacy of the very simple and single circumstance above-mentioned may be seen a cause abundantly adequate to the placing the interest of the functionary in every /each/ one of its branches in a state of diametrical opposition to the interest of the parties in every /each/ one of its branches, or in other words, to his duty. On each /the referred/ occasion it is his interest, that his profit be as great, his labour as small as possible. By the measure of the pecuniary burthen imposed on the suitor, both of these ends /interests/ are served at once: those who have wherewithal /the money/ are pillaged, and thus his profit is assured: those who have it not are shut out; and thus his labour is diminished. The tax and the prohibition work hand in hand: each, though in a different way, operates /ensures/ to his benefit. /to the use of him by whom it is imposed./

Portions of the mass of wealth made to pass on the occasion of every operation out of the pocket o the individual into the pocket of a public functionary are called fees. By encreasing the number /multitude/ of operations, we have seen how he encreases the multitude of his fees. But delay in every length of it is a means /source/ of probable incident: every incident is a means /source/ of operations: every operation is a source /means/ of fees. Such then are already the consequences of the arrangement: on the part of the excluded indigent, disastrous or condemned, consequently according to the nature of the case, non-receipt of the benefit of the punishment that should have been administered to the injurer /author of the injury/, non-receipt of satisfaction, non-receipt of other rights of whatsoever nature, for whatsoever due: evils opposite to the direct ends of judicial procedure: on the part of the opulent the admitted and plundered opulent, vexation, expense and delay, evils opposite to the incidental collateral ends of procedure.

There remain those /the evils opposite to the/ branches of the alternate collateral end: administration of punishment when undue: collation of rights, (imposition of correspondent obligations); administration of satisfaction, (imposition of correspondent obligations) where undue. But to show /exhibit/ the birth of this last triplet of evils, we have no /nothing/ more to do but to convey the indigent man from the station of demandant to that of defendant: deprived by the Judge of the faculty of defence, that faculty which the hand that stripped him of it, calls upon him to exercise he finds himself subjected of course to one or more of those burthens /afflictions/, according to the nature of the case.
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    Description: 14 May 1805

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    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.

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    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: [10 March 1808 Letter V '.6]
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    II. Ends correspondent and opposite to the /which/ ultimate collateral ends of justice /are correspondent and opposite/.

    4. Imposition of burthensome obligations corresponding to and imposed by the administration of satisfaction, in so far as undue[?] [...?] by the administration of satisfaction as for wrong when no /[...?]/ wrong has been committed, or as the charges of some individual in the character of a defendant, on whom[?] whether by reason of his having had no part in the commission of the wrong, or on some other account, no such burthen ought to have ben imposed.

    5. Imposition of burthensome obligation corresponding to and imposed by collation of rights, when undue: for instance by the act of a Judge [...?] by whom a [...?] who had no right has been admitted to a [...?] of /in/ the effects of a bankrupt or [...?] institute[?] to the prejudice of the several persons having right, and who[?] thereby are obliged to submitt to a correspondent less.

    6. Administration of punishment when undue: viz. in the sum[?] of imputed delinquency: of delinquency, in some shape or other imputed to the defendant. In the Table of Offences, as above.

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    Injustice is an appellative, the application of which is not confined to either side. But, in practice, the application of it does not seem alike divided and determinate in regard to every one of the nine articles contained in the above list of evils correspondent and opposite to the so often mentioned ends.

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    In the same case seems to be the propriety of the appellation when applied to two at least of the three evils correspondent and opposite to the nine direct ends of judicature: viz. non-administration of satisfaction when due, and non-collation of rights when due.