date

19 May 1805 Evidence Introd
19 May 1805

Evidence

Introd.

Ch. False Ends. Judge

' 3. Opposition Mode

In this way we have seen the Judge deriving his double advantage from non-demand, [...?], and non-decision, with their attendant evils, the results of the tax he has imposed: how the same advantage has been /is/ extracted by him from another cause of those same evils misdecision, remains to be explained. The case of operations, unnecessary /useless/ in themselves, rendered necessary by institution, by his own opposition[?] it[?] made for the purpose, have already been brought to view. But by what means have they been rendered /[...?]/ necessary? - by appointing, as the punishment of law[?] that one of the parties who shall have failed in the performance of them, the loss of his cause. But every such decision, being thus up on the face of it undue, is a decision in the talk[?] of one or more of six out of the seven ends of justice: if the party [...?] punishment of the demandant, one or more of those direct[?] ends: of the defendant, one or more of those ultimate collateral ends.

Misdecision through what is called corruption might here be /have been/ added: but misdecision from any such source belongs not to the /by any particular/ arrangement the fundamentally vicious arrangement here in question. It affords not any peculiar tacility /[...?]/ to misdecision from that source: under this system misdecision through corruption is not less exposed to punishment, less exposed to detection than under any other /the [...?]/. it acts rather as an obstacle to misdecision: for the more emolument a man has it in his power without exposing himself to punishment, or so much as to reproach /shame/, the less need has he to expose himself to punishment in pursuit of it.
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  • Title: [19 May 1805 Evidence Introd]
    Description: 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.
  • Title: [18 May 1805 Evidence Introd]
    Description: 18 May 1805

    Evidence

    Introd.

    ch. Procedure

    ' Effects of no of suits

    Effects of a Reform in the number of suits.

    Misdecision is one cause of the contravention of the ends of procedure, whether by non-fulfilment of direct ends, or by the production of one not apposite to a collateral end misdecision is a cause, and the most prominent cause. It is however not the only cause. Three other causes are alike /equally/ adequate to the production of this effect: 1. on the part of the judge non-decision: 2. on the part of the party interested in the fulfilment /accomplishment/ of the substantive law, 2. non-demand, or 3. desistmemt.

    When misdecision is the cause, the station of the demandant and that of the defendant are alike exposed to receive /experience/ /bear the brunt/ the overwhelming force of the mischievous effect. Both ends of justice are alike exposed to be contravened by it: the direct end, and the ultimate collateral end.

    When non-decision is the cause, the station of the demandant is that one of the two that is most obviously and most frequently exposed to receive the damage: so long as /since/ the cause /suit/ continues undecided, the demandant fails of obtaining the service, which was the subject of /prayed for by/ his demand.

    Not that the station of defendant is /is altogether/ in all cases altogether unaffected by mischief /exempt from damage/ flowing from the same source. So long as the cause continues even though no further steps /operations/ with the attendant expences and vexations, be taken in it, vexation, in the shape of anxiety, still continues.

    Where non-demand is the cause, the station of defendant, that is of him, who if in the instance in question the direct end of justice had been /to be/ fulfilled would have been demandant, is the only one of the two opposite stations the only one on which any sensible portion of the misfortune falls: punishment, satisfaction, propriety, right whatever it be, he fails of obtaining the object which is his due. To injustice or suffering from this source, the station of defendant is not in any degree exposed. In respect of the consequence of the demand, no room for vexation, for anxiety; for, by the supposition, no demand hath as yet been made.
  • Title: [14 Feb y 1808 on L d Eldon's Bill]
    Description: 14 Feb y 1808

    on L d Eldon's Bill

    Lett. VI

    Omissa and Facienda

    1. No Reporting

    2. Ends of Justice

    II. Under the name of analogous practice Stentor Authority having pronounced /bellowed forth/ his ipse dixit, let no lead[?]-on[?] ear[?], if we can prevail upon ourselves /if the fatigue be endurable/, to the "still small-voice" of reason: observing /and let us observe/ how, without any [...?] advantage, the proceeding /procedure in the cause/ is unfolded with the several evils opposite to the several ends of justice.

    1. Evil the first - danger /[...?]/ of misdecision: viz. misdecision in the superior judicatory above for want of sufficient information.

    From the judicatory of a judge /is become/ who has collected /possessed himself of/ whatsoever portion of information he has chosen /it has pleased him/ to collect in relation to the cause, it is sent off by him for further procedure and decision to another judicatory which /composed of judges who/ whatsoever ulterior information it may please them to collect have not received undiminished[?] the whole body of light which had presented itself to the eye stationed on the inferior level: in its passage through that lower seated medium feel to have undergone diminution to a greater or[?] less amount, though to what amount it is impossible to say by any general rule.

    Even allowing that the whole body of light /information/ has passes on [...?], still no advantage in the respect in question can be pointed out as resulting from the change. Having begun the cause /suit/, what should hinder him from going on with it and finishing it?

    2. Another source of misdecision is this - From a judicatory composed of /constituted by/ a single Judge, who has no colleagues to thwart his operations and perplex his thought, the[?] suit by this reference is lodged in a many-seated judicatory, in which in the first stage of the cause /suit/ (for at the stage of appeal the case is different) finds as many obstructions and perplexions[?] as he sees colleagues.

    3. Then comes the anticlimax already pointed out /dwelt upon/ in the first of these letters a cause transferred from a single Judge, subjected as such to the whole[?] of responsibility[?] in its greatest form to a many-seated judicatory composed of judge amongst[?] [...?] in which [...?...?] that which is in a great degree dissipated and lost.