date

March 1805 Evidence Securities
March 1805

Evidence

Securities

Ch Procedure Technical

In the manufacture /organizing/ of misdecision, in the counteraction of the direct end /ends/ of justice, the interest under which /the influence of/ the men of law has been operating /establishing his arrangements /his works// are not quite so obvious, but scarcely less decided and efficient. In a double way, by a double force, he has been urged /prompted and induced/ to set up iniquity as a trash[?] to aim at. /work iniquity in performance to justice./ Misdecision, if on a ground foreign to the merits, and at the same time not final and conclusive, will operate upon him to whom the injustice has been done /whose prejudice the decision has been pronounced/: will frequently operate upon him. but as a spur by which he will be urged to seek, in a corrected cause, the justice which is his due. To this consideration to this cause may all decision on points foreign to the merits all decisions pronounced on any occasion /of the numerous occasions/ on which the word nullity, and its conjugates /quasi-conjugates/, and correlations, will /invalidity/ and void, quash, set aside, nor count to be employed.

But whom under the auspices /shade/ of uncontrouled power, the workings of personal interest /the slow and secret but [...?] and indefatigable/ in the breast of the Judge, to the [...?] displaced /[...?]/ love of justice, an inward and pale[?] affection and predilection for injustice, an indifference /a [...?]/ for justice, or rather /of not/ a much more pernicious sentiment /affection/ is the sort of affection, which may upon a multitude /the prevalence and influence/ of occasions may naturally be expected. Of the source of this affection with indolence, rash decision, misdecision for want of thought, will naturally be a most frequent fruit: and to this cause may be inferred those exclusive rules /rules of exclusion/ of which the law of evidence is in a great part composed, and by which it has been reduced in that state of depouration /depravity/ the marks of which will in the course of this work be but too conspicuous.
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    Description: 13 Apr. 1805

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    ''. Oppression licenced

    Such are the effects /mischiefs/ produced even without the help of Special Pleading. The effects of that additionment[?] /additional yoke/ are somewhat different. The sure and constant and inseparable result is the addition thus made (an addition altogether needless and useless) to the mass of profitable delay, vexation and expence with its attendant profit such as its effect with relation to the collateral ends of justice. An accidental but too frequent effect is the misdecision, pretences the grounds /causes/ of which accompany the process in every part of its course. To whatever points are ever presented for decision in the course of the process thus denominated /Special Pleading/, one description belongs in common: they are all of them points foreign to the merits. On no[?] part of this class The decision when it comes to be pronounced will be either in favour of the merits i.e. to the claim of that one of the parties that /who/ has the merits on his side, or adverse: if favourable, the mischief produced by the process is confined to that which is /of the/ composed of the fictitious and unnecessary delay vexation and expence: if adverse /in the opposite case/, to the mischief produced by the contravention of those collateral ends of justice is super-added that which consists in the contravention of the diverse end of justice /that which is produced by misdecision/
  • Title: [17 June 1805 Evidence Introd]
    Description: 17 June 1805

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    '. Ulterior Means

    1. First resource for making business /First source of made business/. Superfluous Enquiries

    Establishing with or without natural necessity or pretence and with or without application from either party, the factitious necessity, enquiry upon enquiry, in relation to the same facts, enquiry in a worse mode, before or after enquiry in a better mode. Exemplifications of this sort of ingenuity will be found in the body of this work +

    2. Enquiry by one Judge, decision by another. Where by the personal examination and view of the parties and other witnesses the verdict[?] of the cause, and when such of them as may happen to be [...?] have had least time or no time at all to conceal or [...?] measures for concealing or disguising the truth, one Judge or set of Judges has obtained a better insight into the cause than can be obtained by any other, suffer not the decision to rest in his hands, but transfer it to those of some other Judge or set of Judges who know nothing of the cause but form the dead letter to which the minutes of the evidence have been consigned. In this head likewise, details and exemplifications on the body of this work +++. In the character of a father of a family, wishing to come at the truth and to do justice still [...?] or [...?] would be [...?] weak?

    3. Irrelevant decisions. Decisions (with the previous arguments and other operations) on points foreign to the merits. That the business may be to be done over again: and the fees[?] repeated, manufacture pretences for declaring the proceedings null and void, on the ground of irregularity; whether /and these/ the rules to which they run counter have or have not been previously cognoscible. Of this more in a chapter appropriate to this head. ++

    4. Countless Removals from Court to Court. Authorise or necessitate with or without application from the parties or from either party the removal of the cause from Court to Court, co-ordinate subordinate or superordinate, and with or without ultimate decision pronounced in the Court first applied. - [...?] and keep up the entanglement of jurisdiction as much as possible. Of this subject a particular view will be given in the Rationale of Procedure

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  • Title: [13 July 1804 Procedure and Evidence]
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    In a quirk. By a decision foreign to the merits.

    The point on which a decision, contrary /adverse/ to the merits of the cause is pronounced, may belong either to the substantive or to the adjective branch of the law. The latter only belong to the subject now in hand.

    On a question belonging to procedure, by a decision on a point foreign /contrary/ to the merits I understand any decision by which the ultimate ends of procedure are either of the disfulfilled.

    1. Fulfilment of the productions issued by the part in question of the substantive branch of the law: 2. avoidance to produce vexatious effects not predicted by the part in question of that substantive branch: - but more especially of the first of these two ends which is the main end and that one of the two which is most apt to be disfulfilled /exposed to be in this way disfulfilled/.

    A decision of this sort will accordingly have taken place to the prejudice of the demandants side, as often as of punishment or satisfaction fail to be \have been\ applied and rights to be \have been\ conferred, the decision from which such failure results, being grounded on any other consideration than that /the -------/ such punishment, satisfaction, or rights were respectively not done, viz: according to the prescription of some article of substantive law: to the prejudice of the defendant's side, as often as punishment /a punishment demanded/ or the obligation of rendering the /a/ satisfaction demanded - or the obligation corresponding to the right demanded, has been imposed on any other ground than that of their being regularly due: viz. according to the prescription of some article of substantive law as before.