date

15 Apr. 1803 Evidence Ends
15 Apr. 1803

Evidence

Ends

'Order

I.6. Inconveniences from undue decision

1. Undue decision. 2. Failure of Justice.

In undue decision we may observe a cause or source from /in/ which the several inconveniences of the first order take their rise all of them /each of them/: which of them it shall be in each instance it shall be depends partly on the nature of the cause - viz: whether penal or non-penal - partly on the side of the cause to the prejudice of which the inconvenience redounds affected and prejudiced by the inconvenience - viz. whether it be that of the plaintiff or that of the defendant.

Postpone to Justice & Injustice

In N o. 1, 3 and 5. Punishment not applied where due; N o 3; satisfaction not applied where due; and N o 5: Rights not conferred where due - these three /are the/ inconveniences are indicated /the indication of which is stated /comprehended// by the common expression - failure of justice.

Undue decision is not however the only proximate cause from which these three inconveniences are capable of taking their rise.

Non-decision - though negative in its description - is a source from which they are equally capable of taking their rise. Negative as it is in its complexion it is even much more prolific - much more efficient than the other positive one.

Non-decision itself has for one of its causes - and that by far the most prolific and efficient - non-complaint A very few cases excepted - too few to be worth noticing for /to/ any other purpose /end/ than that of avoiding /escaping/ the charge /imputation/ of incorrectness - the motions of the Judge are dependent on those of the Plaintiff. No piper, no dance. By possessing /In virtue of the exclusive possession to him of/ the initiative, the plaintiff has /possesses/ an original negative on the decision of the Judge. Whatever, by fear or otherwise prevents a man, in any instance from coming forward in the character of a plaintiff to apply for justice, prevents the Judge in that instance from administering it.
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  • Title: [12 April 1803[?] Evidence Ends]
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    ' 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
  • Title: [10 Apr. 1803 Ch.3. Evidence]
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    Opposite to the idea of an inconvenience, is the idea of an end: - of an object aimed at as a mark[?] or an end, in any course of practice. /+The object aimed at in each instance is the avoidance of the inconvenience./ Accordingly taking /if instead of inconvenience we take/ the word end to express the general head, under which a number of articles to the same effect whall be arranged, there must be the same mixture of negative garbs [...?] positive; but, if we may express ourselves, the objects must change cloaths. Those which in the catalogue of inconveniences wear a positive garb, must in the catalogue of ends wear a negative garb: those which in the catalogue of inconveniences wear a negative garb, must in the catalogue of ends wear a positive garb. The inconveniences, cloathed in a negative garb, were, N o 1 punishment, not applied where due; N o 3 satisfaction not applied where due: N o 5 rights, not conferred, where due. The ends must accordingly be - application of punishment where due: -application of satisfaction, where due: collation of rights, where due. + The inconveniences cloathed in a positive garb, were - N o 2 Punishment, applied where not due; N o 4. Satisfaction applied where not due; (a); N o 6. Rights conferred where not due. (b) N o 7. Expence, occasioned where unnecessary; N o 8. Vexation miscellaneous. (viz. in any other shape than that of expence) occasioned where unnecessary; N o 9. Delay where unnecessary; N o 19. Precipitation; N o 11 Intricacy.

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    The real inconvenience consists not in the satisfaction, an article which belongs to the account of pleasure and thence of good; but the obligation of affording the satisfaction, an obligation which as such, whatsoever be the particular nature of it, belongs to the account of evil. This evil is inseparable from the good since it is only by means of the evil that the good is produced: and it is the nature of the evil in this case to outweigh the good.

    (b) Notes

    the main observation which has been just applied to the case of satisfaction, viz: on the score of an offence administered where not due applies, and with equal force, to the case of Rights, conferred where not due. The conferring on the party injured by an offence this or that right is moreover among the [...?], by which satisfaction may be and is administered to him on that score.

    + See [...?]. [...?].9 Pen. Vol │ │ Ch. │ │ Anxious pathologicus
  • Title: [15 Apr. 1803 Evidence 8]
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    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.

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    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.